barmag 81 by Barrister Magazine

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#81

ESSENTIAL READING FOR BARRISTERS

EST. 1999

4th June -31st July 2019 Trinity term issue

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ISSN 1468-926X

New BSB Transparency Rules New rules to improve transparency standards for barristers’ clients are expected to come into force soon but await approval from the Legal Services Board (LSB). The new transparency standards are designed to improve the information available to the public before they engage the services of a barrister. BSB Director of Strategy and Policy, Ewen MacLeod explains what is changing. In December 2016, the Competition and Markets Authority’s (CMA’s) recommended that legal regulators deliver step changes to their transparency standards to help consumers understand the service they will receive, the fees they will be charge, what redress is available to them if things go wrong and the regulatory status of their provider. In the two years following the CMA’s

Legal Aid review: welcome words, but time for action

report, we have published a policy consultation on transparency standards, our revised approach to improving transparency and finally, a consultation Ewen Macleod on the new Director of Strategy transparency and Policy, BSB rules. These rules are expected to come into force soon, subject to approval from the LSB. There are mandatory rules on transparency for all self-employed barristers, chambers and BSB entities, who must comply by providing information about price, service

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Features 10

Does Litigation Funding need more regulation? By Simon Dawson, Managing Director at Quanta Capital Group

Digital footprints in the snow, understanding Timestamps and Metadata for legal cases By Alistair Ewing, Technical Lead, Envista forensics

Protection beyond the law cybersecurity in the legal industry By Andy Baldin, VP – EMEA at Ivanti

the Potential of AI for 16 Unlocking English Law p.8

The Post-Implementation Review was not necessarily the whitewash many were perhaps expecting, and it did acknowledge the concerns raised by many, including Resolution, about the ability of individuals to access legal aid for civil and family matters.

In February, the Ministry of Justice published its long-awaited review into the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which aimed to cut £350m per annum from the annual Legal Aid bill from 2013.

We also welcomed certain aspects of the Review, for example the commitment to expand legal aid to cover special guardianship orders in private family law and reviewing the legal aid means test.

I chair the Family Law Reform Group of the national family justice organisation, Resolution. The body represents around 6,500 family justice professionals – including barristers and solicitors – and we passionately and vocally opposed the cuts to Legal Aid during the Act’s passage through Parliament.

Nevertheless, nobody can argue seriously against the proposition that cuts to legal aid have had a devastating impact on the provision of access to justice. This impact was brought to the fore in a survey Resolution carried out last September, with the help of our members, which informed our submission to the Review team. p.9 This survey showed that, since

By John Armour and Jeremias Prassl, University of Oxford Faculty of Law

News 5 7

Record turnover for Exchange Chambers The Inns of Court College of Advocacy (ICCA) applies to transform delivery, content and pricing of the Bar Professional Training Course

Publishing Director: Derek Payne 0203 5070 249 email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Jeremy Salmon email: info@wedesign.media

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NEWS

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BSB seeking views on pupillage recruitment and advertising timetable The Bar Standards Board (BSB) is writing to key stakeholders to ask whether it should be made mandatory for Chambers and other Authorised Education and Training Organisations (AETOs) providing the pupillage / work-based learning component of Bar training to bring their recruitment timetable into line with the

New edition of BSB Handbook introduces new Bar qualification rules

Pupillage Gateway. Currently, the gateway timetable is between November and May. All pupillages must currently be advertised on the Gateway but the BSB believes that obliging all those offering pupillage to recruit to the same timetable would make recruitment fairer for all candidates. The regulator is also asking for views on whether written agreements between pupils and AETOs should be compulsory so that both the AETO and the pupil have a clearer record of what is expected of them. BSB Director of Strategy and Policy, Ewen MacLeod, said: “The recent introduction of the new Bar Qualification Rules aims to make Bar training more accessible, affordable and flexible while sustaining high standards. By directly contacting relevant stakeholders, we are now seeking views on whether further changes are needed to the ways

Course (BPTC), and those planning to start the BPTC in September 2019, will have the opportunity to complete the course as normal, with transitional arrangements in place for those who have not completed the course by Spring 2022. The final new enrolments on the BPTC in its current form will be in September 2019. The key milestones in the implementation of the new Bar qualification rules include: •

The Bar Standards Board (BSB) has published a new edition of its Handbook which sees new Bar qualification rules come into force. •

The new rules, which were approved in February by the Legal Services Board, will enable the programme of reform known as Future Bar Training to be implemented. The new qualification rules are designed to ensure that training to become a barrister is more accessible, affordable and flexible whilst maintaining the high standards of entry expected at the Bar.

•

A phased approach to implementing the qualification rules The BSB will be implementing various aspects of the new qualification rules between now and September 2021. The main reason for taking a phased approach to implementation for some elements is to ensure that prospective barristers are not disadvantaged as a result of the introduction of the new rules. For example, students currently on, or yet to complete, the Bar Professional Training

•

from April 2019, organisations wanting to offer training under any of the routes to qualification permitted within the new rules will be able to apply to the BSB for the required authorisation. Precisely what training becomes available to prospective barristers, and when, will depend on those applying to become Authorised Education Training Organisations (AETOs); from September 2019, the way in which pupils are assessed will change to reflect the requirements set out in the Professional Statement for Barristers, and the minimum funding award for pupillage will increase to £18,436 per annum for pupillages in London and £15,728 per annum for pupillages outside London, taking into account the Living Wage Foundation’s minimum hourly rates. The minimum pupillage funding award will increase annually in January thereafter; in December 2020, the first assessment for the new-look Civil Litigation centralised assessment within the vocational component of learning will begin. The Civil Litigation syllabus and examination will incorporate dispute resolution (which was previously a Provider-set assessment). The exam will be split into two parts – one of which will be closed book and the other will be open book; and in December 2021, the first new Professional Ethics centralised assessment will take place with the BSB exam being sat during pupillage / the work-based learning component rather than during the vocational component. There will

in which Chambers and other AETOs advertise their pupillages and recruit pupils. Irrespective of whether we have contacted them or not, we would welcome views from anyone on this matter.” You can read more about the BSB’s proposals for changing the arrangements for the recruitment and advertising of pupillage on the BSB website. All views should be submitted to the BSB by 5pm on Wednesday 31 July 2019 continue to be a Professional Ethics assessment during the vocational component which will be set by AETOs. A fuller version of the implementation schedule – including those aspects of the new rules which will come into effect with the publication of the new edition of the Handbook – is available on the BSB website. Details of the fees and charges which will apply to AETOs, which were agreed by the Board on 28 March taking into account the results of a public consultation, are also available on the BSB website. To coincide with the publication of the Bar qualification rules, the BSB is also publishing a new Bar Qualification Manual on its website today. This provides further guidance on the new rules for students, pupils, transferring lawyers, and AETOs. Speaking about the introduction of the new Bar qualification rules, BSB Director of Strategy and Policy, Ewen MacLeod, said:

“Today’s introduction of new Bar qualification rules is a significant step for the BSB as we seek to make training to become a barrister more accessible, affordable and flexible whilst maintaining the high standards of entry expected at the Bar. By adopting a phased approach whilst we implement these new rules, we will ensure that nobody studying for the Bar is disadvantaged as a result of their introduction. We look forward to working closely with the profession and training providers whilst we do this.” The implementation schedule for the Bar Qualification Rules is available on the BSB website: https://www.barstandardsboard.org. uk/media/1983861/bsb_handbook_ april_2019.pdf

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NEWS

Closing courts before digitisation is “putting cart before the horse”, argues CILEx

w w w. b a r r i s t e r m a g a z i n e . c o m Responding to the justice select committee’s call for evidence on the access to justice impacts of court and tribunal reforms, CILEx said the justice system was “still in an age of austerity”, with growing advice deserts, cuts to legal aid and the Crown Prosecution Service, and the rise of unrepresented parties. CILEx said the government’s £1bn programme to modernise courts and tribunals – the end date for which has just been extended by a year to 2023 – must be put to good use, improving the administration of justice rather than simply justifying further cuts to the existing system. The response argues that the roll-out of the reforms to date has “put the cart before the horse, with irreversible court closures and reported plans for job cuts before the impact of the reforms can be accurately predicted”. It said: “We are still to see evidence that digitisation efforts will result in reduced demand on physical space, and it is disconcerting to have court closures justified on low utilisation rates when the definition of ‘use’ has been viewed through the narrow lens of courtroom hearings alone.”

Closing courts across the country with years to go until the digitisation programme is finished or its impact is understood is evidence of the government putting justice in danger, the Chartered Institute of Legal Executives (CILEx) has said. CILEx said it was an example of how the ambitious court modernisation being pursued by HM Courts and Tribunals Services (HMCTS) was not a panacea for the deficiencies caused by persistent underfunding of the justice system.

LAA makes changes to family law legal aid In a move welcomed by legal aid providers, the Legal Aid Agency (LAA) has changed the rules on certificated family law cases (‘Civil news: changes to streamline family work from 19 April 2019’, LAA news story, 18 April 2019). Since 19 April 2019, a cost limit of £25,000 has applied to many family law cases. The LAA has also changed the requirements regarding evidence

CILEx said that, in practice, the court estate has varied uses, and in effect provides ‘justice hubs’ in local communities; pre- and post-hearing meetings are held there, and people receive information and access to wider community services, as well as crucially being a venue for discussion on out-of-court settlements which reduce the strain on parties and the need for unnecessary litigation. “Where existing infrastructure and services have ceased, it is essential that replacements are implemented ahead of time to mitigate any access to justice

for changes to certificates. This will no longer be required in advance, but can submitted at the end of the cases. According to the LAA, the changes to the rules will reduce the administrative burden on legal aid suppliers and lead to a reduction in delays when opening a new case. The changes have also been backdated for ongoing cases. The new rules were designed in consultation with family legal aid lawyers. Chris Minnoch, director of the Legal Aid Practitioners Group, told Legal Action: ‘Bev Watkins from the LAPG board was heavily involved in a pilot of the changes and Jenny Beck, our co-chair, helped design the rule changes with the LAA’s Process and Efficiency Team.’ Minnoch believes that ‘this is a very good example of collaborative work between the LAA and providers’ and that the LAA hopes to expand this approach to other areas of certificated work.

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impacts. CILEx is not convinced that this has always been the case and is concerned by the knock-on impacts that this could have on the efficiency of our court system.” CILEx warned too against a “one size fits all” approach to modernisation, saying it is mindful that an overreliance on digitisation and the blanket adoption of tech-based solutions would not be appropriate in all types of case, particularly where vulnerable people are involved. Whilst recognising that digital reforms and wider modernisation efforts may have a positive impact on access to justice, CILEx states that this will largely be context-specific and that careful evaluation should be made of the areas and processes where fullyfledged tech-based systems would be inappropriate or unhelpful. CILEx President Phillip Sherwood says: “We are currently in a position where access to justice is being threatened by years of swingeing cuts. Against this backdrop, it is vital that technology is not seen as the only means to shore up a crumbling and underfunded court system. “This is a once-in-a-generation opportunity to modernise the courts system, and if it is to be successful HMCTS must acknowledge the importance of alleviating the pressures felt by hard-working court staff, the need to maintain sufficient working courts and the fact that technological solutions will not be appropriate in all circumstances. “We hope HMCTS will use the additional time it now has to engage meaningfully with the professionals keeping the system afloat to understand the challenges involved and to ensure the project improves rather than hinders access to justice.”

NEWS

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Record turnover for Exchange Chambers Exchange Chambers has announced record turnover of £33.1 million for the 2018/2019 financial year - a rise of 7.5% on last year’s £30.8 million. The barristers’ Chambers, described as a “Northern powerhouse” by the independent legal directories, has now set its sights on further expansion in Liverpool, Manchester and Leeds. Said Tom Handley, Exchange Chambers’ CEO:

“It has been a very positive twelve months with all our departments performing strongly. The multidisciplinary nature of Chambers is

Law Society backs new manifesto for justice On Wednesday 1 May 2019, the FDA launched its Manifesto for Justice. Supported by the Law Society and the Bar Council, the manifesto seeks to ensure the criminal justice system avoids collapse. Following real-terms pay cuts of up to 42% and a cumulative 40% realterms cut in the justice budget over a ten-year period - more than any other department - the criminal justice system is under immense pressure.

driving high quality instructions across the board.” The size and resources of Exchange Chambers - which has 185 barristers is one of its standout features. As one of the largest and most wellresourced sets in England and Wales, Exchange Chambers is regularly instructed on major national cases, flying the flag for the regional Bar. By way of example, a team of barristers from Exchange Chambers, instructed by SPG Law, recently secured a major victory by resisting an application by Slaughter and May to transfer the Fundão dam collapse class action litigation from Liverpool to London.

Exchange Chambers’ strong financial performance is also enabling the Set to invest in its future, with the launch of a pupillage academy and ongoing investment in technology. Exchange Chambers will take on 6 pupils in September 2020 covering crime, commercial and common law. In recent years, Exchange Chambers has recruited 3 pupils every year.

HHJ Eyre refused the Defendant’s application to transfer the proceedings that had been commenced in the Business & Property Courts in Liverpool to London, thereby reinforcing the principle that “no case is too big to be heard in Liverpool”, and that London has no greater claim to host large scale international litigation than Liverpool.

Bill Braithwaite QC, Head of Exchange Chambers, said: “Chambers’ strong financial performance positions us well for future growth. “The launch of a pupillage academy in effect, a national centre of excellence for aspiring barristers - marks our commitment to the next generation of talent.”

The Manifesto outlines four key demands: 1. a properly resourced CPS 2. no more cuts to legal aid 3. investment in digital disclosure 4. competitive pay and fees “Due to many years of underinvestment, our criminal justice system is crumbling,” said Christina Blacklaws, president of the Law Society of England and Wales. “Things are going wrong at every level - creating a nightmare journey for the accused, for victims and for those who work in the system. More resources are desperately needed. “A properly resourced system, including the Crown Prosecution Service, is crucial to ensure the criminal justice system is effective, efficient and upholds the rule of law. Without urgent action from the government, the system is at risk of falling apart.” FDA national officer Steven Littlewood said “We all want to live in a society where access to justice is a basic right and where those who commit crimes are successfully prosecuted. If justice is to be done and seen to be done, then it needs investment. We are calling on the chancellor not to shirk his responsibility to protect the public and to ensure that we have the resources necessary for a world-class justice system.”

is defence, prosecution or the courts themselves, the entire criminal justice system needs to be properly resourced.” The Secret Barrister said: “The Manifesto for Justice is a vital document in setting out the challenges that the system faces and identifying the decisions that must be taken if we are to pull back from the brink. In 2016, the Public Accounts Committee described the criminal justice system as ‘close to breaking point’. Three years later, it is broken. And those responsible have to start putting it back together.” The Manifesto is also supported by a petition calling on the chancellor of the exchequer, Philip Hammond, to meet the Manifesto’s four demands and protect UK justice.

Chair of the Bar Council Richard Atkins QC said: “The Manifesto for Justice recognises a simple fact: whether it

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NEWS

LawWorks and Attorney General Student Pro Bono Awards 2019 Winners The exceptional contribution of law students and law schools to pro bono legal advice was celebrated at the annual Student Pro Bono Awards, held at the House of Commons on May 1st.

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judges had a difficult task – but special congratulations to this year’s winners of the 2019 LawWorks and Attorney General Student Pro Bono Awards. Below is a list of the winners and runners up: •

Download the Awards programme [link]

Best Contribution by a Law School: School of Law, Queen Mary University of London Queen Mary University run a Legal Advice Centre, at which around 300 undergraduate law students are involved giving supervised free legal advice to 350 clients a year. The University also runs two public legal education ] programmes engaging with

Hosted by High Court Judge Sir Robin Knowles CBE, the awards were presented by the Attorney General, the Rt Hon Geoffrey Cox MP QC and the Solicitor General, Robert Buckland QC MP. Sponsored by Lexis Nexis, the awards also incorporate the Access to Justice Foundation Award for an educational body or student which has made a significant contribution to promoting access to justice. The winners of Advocate and LawWorks Law School Challenge 2018 – 2019 were also presented with an award at the event. Of over 240 clinics in the LawWork clinics network, 41% of clinics in the network are law school-based clinics and, collectively, they dealt with over 19,000 enquiries last year. Student clinics provide advice in a variety of areas such as family, welfare benefits, employment, housing and small claims. The Attorney General, the Right Hon Geoffrey Cox QC said:

I am very proud of the Attorney General and LawWorks Student Pro Bono Awards which provide an opportunity to celebrate the pro bono work of students. Pro bono is part of being a lawyer - it not only has a practical and beneficial impact on people’s lives and access to justice, but also supports the rule of law. Early experience of pro bono can instil a passion and commitment that can last a whole career. I wholeheartedly congratulate the winners on their achievement. Alasdair Douglas, Chair of LawWorks said

LawWorks received a large number of high-calibre nominations and the quality and impact of the projects nominated was hugely impressive and inspiring – all those nominated or shortlisted deserve congratulations and appreciation for their work. The

students at primary and secondary schools. The runner up was Nottingham Law School, Nottingham Trent University. Best Contribution by a Team of Students: Swansea Law Clinic, Hillary Rodham Clinton School of Law, Swansea University A team of two from Swansea Law Clinic contributed over 750 hours of their time including drafting initial advice letters, providing assistance at the Litigant Helpdesk at the local Civil Justice Centre, assisting in a Legal Aid Exceptional Case Funding Clinic, and volunteering their time their time to enable the Law Clinic to remain open over the summer. The runners up were Plymouth Law Clinic Refugee Family Reunion Project. Best Contribution by an Individual Student: Giulia Mazzu – Dickson Poon School of Law, King’s College London Giulia’s volunteering includes legal research for Action4Justice, being a caseworker with the Freedom Law Clinic assisting preparation of cases for referral to the Criminal Cases Review Commission, an internship at the Stahill Foundation which works to stop orphanage trafficking in Kenya, and with the Article 8 ECHR Project at King’s College Legal Clinic which provides pro bono representation to immigrants seeking to remain in the UK on human rights grounds. The runner up was Mozes Salvatore – Westminster Law School, University of

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Westminster . Best Legal Tech Contribution: Open Justice Law Clinic, The Open University Law School The project is a ‘virtual’ legal advice clinic led by law students under the supervision of qualified solicitors covering advice on contract, tort, consumer and employment law and is accessible to anyone in the UK with an internet connection The runner up was the Online Project, University of Strathclyde Law Clinic. Best New Student Pro Bono Activity: Anti-Trafficking Legal Project, Liverpool Law Clinic, University of Liverpool Working with the Red Cross, the project provides support to trafficking victims before they enter the National Referral Mechanism. The project has advised 31 clients. 16 student caseworkers attend interviews with the clients to help prepare statements of evidence, as well as providing research and letters drafting assistance. Student interpreters also attend casework sessions. The runner up was Anglia Law School Law Clinic, Anglia Ruskin University. The Attorney General also presented the University of Plymouth Street Law Clinic with the Access to Justice Foundation Award which recognises the work of individuals and educational bodies in promoting and supporting access to justice and charities which provide pro bono services. Lucy Chapman, City Law School, was also highly commended. Liverpool John Moores University was announced as the winner of the Law School Challenge, a law school led initiative to raise funds for LawWorks and Advocate. The University of Leeds and University of Huddersfield were immediate runners up. 1) The judges for the 2019 Awards were:• • • • •

Christina Blacklaws, President, Law Society Peter Farr, Trustee, CILEx Pro Bono Trust James Harper, Executive Sponsor, Rule of Law and CSR for LexisNexis UK & Ireland Joshua Richman, Senior Editor, LawCareers.Net Leanne Targett-Parker, Chair, Bar Council Pro Bono Committee

2) The awards are now in their 13th year. 3) For further information please contact James.Sandbach@lawworks. org.uk

NEWS

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The Inns of Court College of Advocacy (ICCA) applies to transform delivery, content and pricing of the Bar Professional Training Course

Modern, innovative course aims to be open for applications in Autumn 2019 The ICCA has applied to the Bar Standards Board (BSB) to be authorised to deliver a new Bar Course that will replace the Bar Professional Training Course (BPTC). The new course sets out to lower the cost of training and has been designed to reduce risk dramatically and increase flexibility for students through its innovative two-part delivery. The ICCA Bar Course has been developed by education experts and legal practitioners to deliver new, highquality vocational content that will give students the best possible preparation for a career at the Bar. If approved, the course will be delivered in two parts from Autumn 2020. Part one will be knowledge-based and delivered online using cutting-edge digital tools. This part of the course will incorporate multimedia resources such as films, podcasts and quizzes to allow students to engage with the course material interactively. It will also include a number of bespoke case studies, which will help to apply more abstract knowledge required within the curriculum to real-life scenarios. Part one has a guide time of

between 12-16 weeks to complete and there will be an opportunity for students to exit the course after this point with no further financial commitment if they decide not to continue. The new course structure is flexible to enable students longer to complete part one should work, caring or other commitments require this, and they will be able to study this part of the course at any time of day and from any location. Part two of the course will run for 20 weeks, with intake scheduled twice yearly, and will be undertaken in person within the precincts of the Inns of Court. Part two will be dedicated to skills teaching, preparing students for potential future pupillages and a career at the Bar. There will be practical advocacy courses including essential specialist sessions on vulnerable witness advocacy, youth justice proceedings and expert witness handling. The ICCA will charge £12,225 overall which will be split between £1,000 for part one and £11,225 for part two. These fees include all teaching materials, required practitioner texts and assessment fees. Students will also need to cover the cost of the BSB’s ‘intake fee’ which has been set at £575 for part one and £295 for part two.

The overall cost will therefore be £13,095. Derek Wood QC, Chair of the ICCA Governors said: “We are delighted to be announcing this new Bar Course, which will provide students with greater flexibility, high standards of teaching and less financial commitment upfront. The course will be offered on a ‘not-forprofit’ basis and will cost around thirty percent less* than London BPTCs presently on offer.” Lynda Gibbs, Director of Programmes for the ICCA, said “The quality of oral and written advocacy is a cornerstone of our profession. Training barristers to develop first-class skills in advocacy and advisory services is a hugely important process and we are very excited to be providing this innovative course which will equip students to best meet the demands of the profession today.” Richard Atkins QC, Chair of the Bar, remarked, “As the Approved Regulator, the Bar Council welcomes greater competition in the market. The proposed ICCA course also seeks to drive down the cost to students of qualifying for the Bar and this is also something that the Bar Council encourages.”

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and redress on their websites.

p.1 If you do not have a website,

barristers must make sure that the required information is available to consumers in hard copy and that it is available on request. The new rules require selfemployed barristers, chambers and BSB entities to: •

• •

•

• •

State that professional, licensed access and/or lay clients (as appropriate) may contact the barrister, chambers or BSB entity to obtain a quotation for legal services; Provide contact details; State the barrister, chambers or BSB entity’s most commonly used pricing models for legal services, such as fixed fee or hourly rate; State the areas of practice in which the barrister, chambers or BSB entity most commonly provides legal services; provide a description of the barrister, chambers or BSB entity’s most commonly provided legal services; Provide information about the factors which might influence the timescales of the barrister, chambers or BSB entity’s most commonly provided legal services; Display the appropriate “regulated by the Bar Standards Board” text on the homepage: for sole practitioners, “regulated by the Bar Standards Board”, for chambers, “barristers regulated by the Bar Standards Board” and for BSB entities, “authorised and regulated by the Bar Standards Board”; Display information about the complaints procedure, any right to complain to the Legal Ombudsman (LeO), how to complain to the LeO, and any time limits for making a complaint; Link to the decision data on the LeO’s website; and Link to the Barristers’ Register page on the BSB’s website.

This information must be made prominent and sufficiently accessible on websites and kept accurate and up to date. For those who do not have a website, it must always be readily available in hard

copy. For those undertaking Public Access work there are also additional transparency rules. This includes self-employed barristers undertaking Public Access work, and BSB entities supplying legal services directly to the public. If any barristers practising from a chambers are undertaking Public Access work, or if a BSB entity is supplying legal services directly to the public, websites must link to (or barristers must provide hard copies of) the Public Access Guidance for Lay Clients, which can be found on our website. If barristers provide the Public Access services listed in the current version of our price transparency policy statement then, in certain circumstances, they must also comply with additional transparency rules in relation to those services. The relevant Public Access services are: • • • • • • •

•

Employment Tribunal cases (advice and representation for employers and employees); Financial disputes arising out of divorce; Immigration appeals (First-tier Tribunal); Inheritance Act advices; Licensing applications in relation to business premises; Personal injury claims; Summary only motoring offences (advice and representation for defendants); and Winding-up petitions.

If you are a barrister who provides these Public Access services then, in certain circumstances set out in the policy statement, the rules require you to: • • • •

•

State pricing model(s), such as fixed fee or hourly rate; State indicative fees and the circumstances in which they may vary; State whether fees include VAT (where applicable); State likely additional costs, what they cover and either the cost or, if this can only be estimated, the typical range of costs; and State and provide a description of the relevant Public Access services, including a concise statement of the key stages and an indicative timescale for the

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key stages. Sole practitioners will need to provide price information as an individual barrister, chambers will need to provide price information either in relation to (1) individual barristers, or (2) barristers in chambers in the form of ranges or average fees, and a BSB entity will need to provide price information in relation to the entity. We also published Transparency Standards Guidance, which is available to read on our website, in order to provide further information and help for barristers in complying with the new rules. It includes resources such as checklists, examples of how to provide hard copies of information and examples of the required transparency. It also encourages barristers to go beyond the mandatory rules and offers guidance on best practice transparency to help you do that. Barristers are required to comply with the new transparency rules as of now, but there will be an implementation period until January 2020, during which time we are committed to working constructively with the profession as they make the necessary changes. All selfemployed barristers, chambers and BSB entities are expected to be fully compliant with the rules by January 2020. Spot checks will take place at the end of the implementation period although our emphasis will be on helping you to comply rather than taking disciplinary measures.

The barrister magazine will not accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.

LASPO, 1 in 5 legal aid family

p.1 practitioners had simply

stopped doing legally aided work altogether. What’s more, a quarter of respondents said they were unable to signpost to a legal aid provider within a reasonable distance. Almost every practitioner (98%) reported that their average client has either no or only basic legal knowledge, and 93% reported seeing increased numbers of litigants in person – something which I’m sure readers will be able readily to identify with. In the family sphere, at last count (for the final quarter of 2018) 81% of family court hearings involve at least one unrepresented litigant. Based on the estimates of the 104 legal aid providers who responded to Resolution’s survey, they have had to turn away around 10,000 people over a 12 month period. It must be remembered that this is only the proportion of people who have actively sought help from legal aid providers. Extrapolated out to the entire legal aid profession, we could be faced with hundreds of thousands of people being turned away this year. These findings are reflected in the anecdotal evidence our members present to us on a regular basis. The Review also recognised what Resolution and many others had told the MoJ team leading it – that early intervention, and access to legal support as soon as possible, can make a significant different to those facing family disputes. It’s something we all know instinctively as practitioners, but evidencing it in the way policy-makers demand is more challenging. I strongly believe that the government, if it invested in spending money on access to legal information and advice for those facing family disputes, could save far more further down the line in other areas : welfare payments, housing support and the care system, to name but a few. And this logic doesn’t just have a practical, economic angle : there is also a strong moral argument. The simple fact is that, without access to tailored legal advice, many vulnerable individuals will continue to be left to deal with the family courts with little or no help. Without legal advice, couples and individuals are less likely to resolve matters away from the court and more likely to face lengthy delays

within a creaking court system. If government is serious about reducing conflict and stress for couples and families in dispute, it needs to go further and ensure that everyone who needs it has access to early legal advice, to enable them to make informed choices about their options. These choices have a fundamental long-term impact on families and children and it is vital that people are properly supported – not just for those individuals, but for society as a whole. This advice is also more likely to result in fewer couples using the courts to resolve their disputes. Despite making legal aid available for mediation as a result of LASPO, mediation figures fell significantly in the months and years following the cuts. There is now almost universal acknowledgment that the absence of early legal advice has had a direct impact in these numbers falling, as couples simply weren’t able to make informed decisions about their options. What’s more, public funding is only available for one form of out-of-court dispute resolution. Why restrict it to mediation? I’m a mediator and know it can be very successful where the circumstances are suited to this approach. But it’s not the only way – collaborative practice, roundtable negotiation, arbitration – providing for these and other processes could help many more couples resolve matters without recourse to the courts, which in turn would reduce the burden on HMCTS and judicial resources. Some have argued that the government should commission independent economic research, to assess more accurately how much investment in this area could save taxpayers elsewhere. This would seem a sensible approach. As in many areas of government, there is a real danger of working in silos, where a department or agency,

faced with a tough bottom line, is afraid to propose new initiatives which require funding, especially where the return on investment may not be seen during that government’s lifetime. In a linked announcement on the day the Review was published, the government set out its Legal Support Action Plan, intended to explore new and different ways people could access help with legal problems, including in family cases. Whilst it’s refreshing to hear government talk about solutions rather than simply cutting budgets, it should be noted that the £8m of funding – across all areas of the law – represents little more than 2% of the £350m of annual cuts to legal aid. Nobody was expecting this Review to reverse the cuts, but the commitment from government to early intervention, for example, has to be backed up by meaningful funding. Otherwise children and families across the country will continue to suffer from a lack of access to justice. So whilst we hope the Review marks the first step in a change of tone from the government, the proof of the pudding, as they say, will be in the eating. Resolution will continue to stand up for our members and all needing support on relationship breakdown, and keep on making the case to Ministers and officials on the need for new ways to ensure people have access to the right advice at the right time.

By Jo Edwards, Chair of Resolution’s, Family Law Reform Group

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Does Litigation Funding need more regulation? By Simon Dawson, Managing Director at Quanta Capital Group Opinions towards third-party-funding or litigation funding are slowly changing; once viewed as the dark side of the market, it is now looked on more favourably as tool to create symmetry on both sides of the table. If used effectively, litigation funding provides an equal playing field for businesses who find themselves in the position of David in David vs Goliath situations.

istorically, lots of organisations within the litigation finance market are global entities that used to ‘cherry pick’ the extremely large commercial litigation cases where millions of pounds are ‘loaned’ on an individual case. This has since changed and the market has gone a long way to change its perception within the industry, through self-regulation and increased client support. However, some within the legal sector still question whether some funders are ‘cowboys’ and whether the litigation funding sector is appropriately regulated. This article will break down myths that still plague the sector’s reputation and aim to provide clarity on some of the stickier points. Myth one: there are set limits on the fees and interest rate funders can charge. Litigation funders provide a service that is often to a distressed Client. The Client wishes to pursue a viable legal dispute but don’t have either cashflow or the will, in terms of risk, to finance the legal costs themselves due to the undetermined cost and undetermined time for a case to reach conclusion. This means that many funders will provide a tailored commercial solution that the Client will decide on, based on their own set of case circumstances and commercial objectives. The finance proposal will often take into consideration the size of loan required, the prospects of success, the expected case duration and of cause the potential settlement. Whilst in essence there maybe a typical market rate relevant to specific models, each case is financed in isolation and not currently subject to specific limits. Many funders offer to provide finance encompassing an element of own costs, all disbursements and in some circumstances the advance costs of an after-the-event (ATE) insurance policy. The ATE policy provides indemnity against the risks of a losing case and the need to repay borrowed capital and the potential for adverse costs. Some ligation funders do not require the use of insurance; however, in return for this risk they will require a substantial

percentage share of the awarded settlement. Larger funders will often focus on ‘cherry picking’ cases that offer the best commercial return for their deployed capital, which leaves the SME market often under serviced. Recently Lawyers and their Clients having been given a greater choice following the emergence of a number of litigation funders who place more focus on the SME market, supporting loans typically between £250k and £2.5m. Myth two: there are no specific legislative or regulatory provisions applicable to third-party litigation funding. Whilst the commercial litigation finance market is not subject to any specific regulation in terms of providing commercial loans for the purpose of pursuing a legal dispute, it has gone to a huge effort to selfregulate. A number of large funders that focus predominantly on the multimillion-pound cases established the Association of Litigation Funders, and adhere to a voluntary code of conduct. Ultimately it is important that any Client is treated fairly and that there is absolute transparency in how much a litigation loan will cost them and whether that cost is proportionate to the settlement that they will receive if successful. It is always advised that when a Client is considering a litigation finance loan, that they seek independent advice on the terms of the loan, and any inherent risks Myth three: there are no specific professional or ethical rules apply to lawyers advising clients in relation to

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third-party litigation funding. Legal professionals are always obligated to act or advise in the best interests of their Client. This includes making them aware of the alternative ways of financing the legal costs of their case, and potential funders who could provide that finance. It would not be appropriate for any one funder to be promoted over another. This advice should be free from commercial influence and should place the onus on the Client to decide which funder if any would be suitable in their specific set of circumstances. Law Firms are typically risk adverse and although some Litigation Funders will provide loans or facilities directly to the Law Firm, many Law Firms do not want such risks on their balance sheet so prefer loans to be provided to their Clients. It is necessary however for a Law Firm to demonstrate to the Client, and any potential funder, that not only do they believe in the merits of the case, but they are happy to share the risk in running the case by offering the Client a CFA based retainer. If a Law Firm is committed and invested in a case by way of deferred fees, it is far more likely that they will continue to support their Client positively and progressively throughout the case until conclusion. Many funders may not provide litigation finance if the Law Firm is not committed to the case in this way. Litigation funding is an evolving creature and one that consistently tries to improve its services, with the support of the legal profession. Here at Quanta, we are increasingly taking a proactive approach to all parties involved in the litigation process so as to ensure that the approved cost schedule and communicated milestones remains consistent with the terms and expectations agreed at the outset. All parties are obligated to maintain regular communication of case progress and disclosure to ensure that the provided litigation finance remains suitable and / or viable. This said, litigation funders are not permitted to influence the outcome or settlement of case, subject to long standing Champerty legislation, which restricts any third party taking a commercial interest in a legal dispute.

Simon Dawson, Managing Director at Quanta Capital Group – see here https://www.quanta-capital.co.uk/ litigation-finance/

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Digital footprints in the snow, understanding Timestamps and Metadata for legal cases By Alistair Ewing, Technical Lead, Envista forensics

s the technical lead for digital forensics and cyber of Envista forensics, I found that legally trained individuals could benefit from an article discussing system times and metadata. In almost every case be it fraud or a cyber-incident deciphering and interpretation of metadata is important in answering questions relating to a case. Prior to understanding metadata, one must also understand preservation and the field holistically. Much of what digital forensics deal with is hidden to a standard user and often perpetrators. Records and timestamps are created unwittingly, like “footprints in the snow”. If handled without care the snow will melt, and the evidence will be lost forever; if misinterpreted then the real truth of that file’s origin can spell disaster if the artefact is ever questioned during a trial. What is Digital Forensics? Digital forensics is an umbrella term for: Incident Response Ransomware, hacking and cyberrelated claims Computer Forensics computers and data storage devices Mobile Phone Forensics mobile phones, tablets, pads Cell Site Location and Tracking Location-based data from historical records GPS forensics GPS units in cars, boats, trucks, aviation CCTV Video Recovery and Enhancement CCTV Surveillance systems, data recovery Selecting an Expert When selecting an expert, it is important to note if that individual has court experience, certifications and experience in the relevant fields required for the case. It is also noteworthy to mention the difference between a general ‘Computer Expert’ and a ‘Digital Forensics Expert’. A computer expert may be adept at configuration, virus detection and networking of devices but lacks the

credentials for the preservation of data, the tools for analysis and importantly the interpretation of the digital artefacts uncovered in an investigation. Digital forensics can be summarised as “The process of identifying, preserving, analysing and presenting digital evidence in a manner that is legally acceptable in any judicial or administrative hearing.”

remembered by the system. These unwittingly collected artefacts are often the curse of many a culprit or the blessing to those who wish to prove they visited or performed actions such as a digital alibi in a murder case “I wasn’t at that location, I was at home playing on my Xbox” is one example.

Essential questions in an investigation are the Who? What? Where? Moreover, When? Metadata, data about data, can help us answer these questions in an inquiry.

Examiners go to great lengths to preserve the ‘digital snow’ and make sure that they leave no ‘footprints’ and if they do provide the location and reasoning. Imagine a murder scene where the forensic team march in wearing muddied boots and end up getting the case dismissed on procedural grounds. The same can happen when neophytes attempt to examine a live computer without first collecting, documenting and preserving the data. The expert would either use a forensic boot DVD or USB or take the disk out and place it into a device to block any writes to the system. Just plugging a disk into another system leaves traces of this event.

System Times A file or log time is only as accurate as the system it was produced on. Before an examiner forensically acquires data, they should also document the system time vs the actual time as to explain any timerelated anomalies on the subsequent data in the analysis. A system can mean a computer, phone, GPS or even such items as a digital camera. If these are set wrong, then you may see artefacts created on dates such as 01/01/1970 which is impossible as the devices wouldn’t have been invented at that date. In that example, the time has reset to the default value in Unix milliseconds which start at this particular date. This can happen in computers or devices that use a battery, typically a lithium button or others of that type, that has gone flat. This battery powers what is called a CMOS clock which keeps the system time despite the item being powered off. Unscrupulous crooks can change system or operating system times, but a competent examiner can find the truth by examining logs to indicate time change, incorrect date orders in the contiguous MFT logs that are numbered sequentially (but have a sudden shift back and throw from), in respect to dates and inside cookies, times on news websites in internet browsing cached records or internal metadata clues such as a ‘Last Printed Date’ after a ‘Last Saved’ date. Cookies on a server can have the date stamped inside the file from a web browsing session if there is a mismatch for the file cookie date/time the visited server date/ time, then this is a major red flag. Cookies are created when one visits websites such as eBay, so the user actions such as items placed into the virtual shopping cart are logged and

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Forensic Collection Best Practice

A complete copy of the physical disk’s data is taken and a digital fingerprint - often an MD5 hash sum is produced to verify its integrity compared to the original. The examination is taken on a backup copy of the image taken rather than the original disk so as to preserve the integrity of this item. An exception to this is on the live server; this can be copied using a unique copy tool that protects file times and retries if a file is locked and in use. If the disk is encrypted, then the Random Access Memory which is lost when a system is powered off is imaged as the password key, and other data may reside in there. Powering off, in this case, may lead to a full forensic image that is unusable without a password. In those cases, logs must be taken to note any changes, albeit minimal, made to the system. When determining the integrity of even one document the whole system used to produce that document must be considered. Time Data Locations Time data is found outside files as MAC times but also inside system logs, web browser cache and office documents to name a few. All Electronically stored information is

subject to timestamping. When the times are discovered externally, they are called MAC times and internally ‘MetaData’ - data about data. This data is created autonomously, but it can be tampered with and is volatile in terms of being able to be changed accidentally. Hence the need for a documented forensic collection procedure. MAC (Modified Accessed and Created) File Time Stamps Files have external timestamps and these are the (i) Modified date: The date an item was changed and the change was saved (ii) Accessed date: The date an article was first accessed either by a user or by an automatic action such as a virus scan and the (iii) Created date: This should be thought of as the ‘Born on that Location’ date. This is the date the item was created at that location. For example, if a file time stamp has been modified before it was created, then it was likely copied to the new location by a user or a backup restore process. From these, we can decipher when a file arrived on a system, how, when/if it was changed and if it was accessed. These vary from Mac, Windows and Linux and care must be taken before making assumptions.

Internal File Specific Metadata There is a plethora of file types found on a computer. Microsoft Word documents carry details such as Author, Last Printed and Last Saved which can tell us the history of the file. Digital photograph metadata can list fields such as Camera make and model, the date and time the photo is taken, and those with GPS chips, the location of the photo. All these records can be tied into a chronology in order to ascertain user action, and then displayed in a way that the layperson can decipher the user action, time of the operation and sometimes the approximate location. Examiners use tools such as ‘logtotimeline’ to do this. In a recent ransomware case this technique was used to promptly pinpoint that: 1) Malware was downloaded from the internet by user A; 2) The malware was opened by user B; 3) The file was undetected by the Anti-Virus software; 4) The threat spread and exfiltrated date to a remote location and; 5) Deleted itself leaving no apparent physical trace.

analysis as data is highly volatile in its live state. Hiring general IT staff for review should be avoided as anomalies and changes can usually be spotted easily by a digital forensic expert but overlooked by the uninitiated. Determination of a file’s origins and integrity must follow a full collection of the system in most cases and complete forensic examination. Details of the Author Alistair Ewing has over eight years of experience in Digital Forensic Analysis, Data Recovery, Mobile Phone Forensics, Litigation Support, and has served as an Expert Witness in criminal and civil cases in the UK. Mr Ewing began performing digital forensics in 2011 and has had hundreds of hours of experience in this sector. Qualified as an expert witness for some years and vetted by Sweet and Maxwell he has presented evidence in tribunals, civil and criminal courts in the UK and been involved in corporate investigations, litigation support and collections.

https://www.envistaforensics.com/ experts/Alistair/Ewing/

Conclusion System and file times must be preserved by forensic collection and

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Protection beyond the law cybersecurity in the legal industry By Andy Baldin, VP – EMEA at Ivanti

Consequentially, barristers must be especially wary of cyberthreats and malicious online actors and all chambers must make sure that they have a secure cybersecurity strategy in place in order to mitigate against risks.

he legal industry, like many others, is currently undergoing a digital transformation, as both law firms and barristers’ chambers alike are embracing technology and placing digital technologies at the heart of all their company operations in order to achieve greater business efficiency. Whilst digital transformation brings about great benefits, such as an enhanced customer experience, it also opens up a business to the threat of cyber-attacks. The legal industry is no stranger to cyberthreats – the number of reported cybersecurity incidents this sector has been facing has grown substantially over the last few years causing mass distress for both legal practitioners and clients alike. In fact, according to the SRA, in the first half of 2018 there was a 10% increase in the number of cybercrimes reported by law firms compared to the same period in 2017. However, despite these threats, industry research has indicated that only 35% of law firms have a response plan in place. The damage that cyberattacks can cause legal organisations is far reaching. Not only do many of the attacks result in hefty financial losses – the SRA reports that over £20 million in client money was

stolen due to cybercrime in 201618 – but the reputational impact of a cyberattack or data breach on the legal industry can also be significant. Remediation and repairing reputational damage by regaining public trust following security incidents is hard to achieve and difficult to measure, especially for smaller firms or self-employed barristers. Legal firm Mossack Fonseca famously lost the largest amount of data ever recorded in 2016 when 11.5 million files that created the ‘Panama Papers’ were stolen by hackers and leaked. The firm’s reputation never truly recovered and it’s not hard to see why. Attracting new clients would be difficult for any barrister or law firm that had suffered a data breach due to the perception that they are unable to sufficiently safeguard client data. In turn, this will then impact on the bottom line due to lost business opportunities. So, why is the legal industry so heavily targeted? Barristers and other legal professionals have access to large amounts of sensitive data as part of their work as international specialist advisors on complex disputes, both in court and arbitration. Around 80% of barristers are self-employed and the majority belong to barristers’ chambers and, as such, this

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network is a goldmine for data. This data can then be used to make a blackhat hacker a nice financial profit. For example, a New Yorkbased law firm was hacked by three foreign nationals in order to steal insider information regarding pending merger and acquisition deals in 2016. This led to over $4 million in unlawful financial gains. Consequentially, barristers must be especially wary of cyberthreats and malicious online actors and all chambers must make sure that they have a secure cybersecurity strategy in place in order to mitigate against risks. A breach or an attack could put firms at risk of being fined, especially in the age of strict data regulations such as the GDPR and the NIS Directive. These aren’t just empty threats – in February this year, Google was fined a record £44 million under the GDPR, for the misuse of consumer data. Many legal practitioners simply cannot afford to be fined up to €20 million or 4% of their total global turnover. Therefore, it is critical that they take proactive steps to protect their businesses against cyber threats. As technology is increasingly dominant in how legal professionals conduct their daily tasks, precautions must be taken to ensure that these forms of technology are protected. While it may seem like a complex and intimidating task to implement a cybersecurity strategy due to the complex range of solutions available, the answer lies in making sure that the basics are covered. All barristers’ chambers must ensure that, as a business wide strategy, they have implemented basic cybersecurity practices such as patching, network configuration and strong password management. Other basic practices such as regularly updating passwords and not sharing any login credentials with other members of staff is crucial, especially as threats can also come from inside the business. Tools such as patch and vulnerability management, application whitelisting, privilege management, identity management, file and media

protection, and ransomware remediation will help defend against attacks. All these processes can be easily managed through one third party provider to allow barristers to focus their efforts on their cases rather than continuously worrying about IT and security priorities. Training all employees to spot, and report on, suspected malicious activities will also add another layer of defence. This is particularly important as a poll of law firms showed that around 80% have reported phishing attempts. The amount stolen from law firms through phishing in Q1 2017 was 300% higher than the previous year. Ultimately, recent phishing attacks experienced by multiple organisations in the legal vertical highlights the continued need for people to be very wary of what they are clicking on. End-user education forms a very important part of protecting against these kinds of attack, but there are also technical steps that can be taken. For example, protecting privileged accounts must sit at the heart of the IT team’s strategy in order to prevent their misuse, be that accidental or malicious. A fine balance has to be struck between

withholding admin rights that could land in the wrong hands and making sure employees and end users have the freedom required to complete their work. This means taking an individual approach to each employee and granting them the privileges they need but blocking anything that could compromise the network and lead to downtime or breach. Supporting this with a layered approach to cybersecurity reduces attack surfaces, detects attacks that do get through, and helps cybersecurity professionals to take rapid action to contain malicious activity and software vulnerabilities. Any barristers’ chambers should also be using technologies and processes to reduce its attack surface, detect attacks that do get through, and take rapid action to contain malicious activity and vulnerabilities. These measures are all part of a back to basics, layered approach to security which every organisation, no matter what industry, should have in place. As holders of sensitive information, barristers’ chambers must ensure that they remain vigilant. They need to know what sort of information is stored on their system and what is passing

through their networks. The complete visibility of the entire business network is necessary to ensure that all threats are identified and dealt with in a timely fashion as well understanding how sensitive data is stored and handled by everyone on the same network. It is critical that all organisations in the legal industry are ensuring that cybersecurity is a top priority. As this industry continues to move into a digital age, the risk of cyberattacks is only going to grow. As such it is imperative that all organisations are implementing a back to basics, defence-indepth approach to cybersecurity or risk opening themselves up to both financial and reputational damages.

Andy Baldin Bio: Andrzej Baldin is currently the Vice President – EMEA at Ivanti, a position he has held since 2017. Ivanti: The Power of Unified IT. Ivanti unifies IT and Security Operations to better manage and secure the digital workplace.

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Unlocking the Potential of AI for English Law By John Armour and Jeremias Prassl, University of Oxford Faculty of Law

rtificial intelligence (AI) is attracting enormous hype in the media and public discourse. Well-publicised recent successes have included self-teaching board game champions and leaps towards selfdriving cars. Economists see AI as a nascent general purpose technology, capable of transforming working patterns in professional sectors, including law, in a way that some liken to the impact of the industrial revolution on manual labour. We are collaborating with an interdisciplinary team of academics at Oxford and several private sector partners on an ambitious programme of research entitled Unlocking the Potential of AI for English Law. This is investigating the opportunities for, and barriers to, application of AI in law. The project is funded by UK Research and Innovation as part of its Next Generation Services investment programme, an Industrial Strategy Challenge Fund intended to stimulate research partnerships between academia and the private sector in areas of importance to the UK economy. Our research questions include the impact of AI on business models in legal services; the role AI might play in dispute resolution, and its impact on the quality of, and access to, justice; the new skills needed to make the most effective use of AI; and ways of delivering training and education to meet these needs. In this short piece, we focus on the issues in relation to dispute resolution. The Rise of AI: this time, it’s different? Recent advances in AI have mainly

been based on machine learning (ML). This relies on applying computing power to very large amounts of data, the availability of which has blossomed in recent years. Within specific domains, current ML systems have achieved (super)human performance in relation to many specific tasks, including image recognition, language translation and information retrieval. However, there is little potential for transfer of understanding between applications. A system that delivers general human-level general performance (artificial general intelligence or ‘AGI’) is—according to experts—anywhere between a decade and two centuries away.

and aggregate data from prior disputes promise to give parties information about the prior record of particular judges and lawyers. These data can then be fed into an ML model to predict outcomes. Early work has produced results achieving in excess of 70 per cent accuracy in predicting win/lose outcomes for disputes in the European Court of Human Rights and the US Supreme Court. However, the enormous variety of disputes complicates the analysis, and early commercially-available versions of this type of application focus on particular dispute types – from challenging parking fines to predicting employment status – to achieve better results.

This is not to say that lawyers shouldn’t pay attention: one context in which ML techniques have already achieved superhuman performance is in identifying relevant documents from amongst very large bodies of materials. In contentious matters, this is known as “technology-assisted review” (TAR), spurred by rapid growth in electronically stored information relevant to litigation. Similarly, large numbers of documents must be navigated in the context of transactional due diligence, again making it economic to apply supervised learning techniques. A number of platforms applying this kind of technology are now in use by large UK law firms in these contexts.

Mapping the opportunities

Another fast-growing application, which may be of particular concern to lawyers worried about being replaced by robots (albeit perhaps not in the immediate future), is the use of technology to predict case outcomes. A range of tools that mine

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It is important to understand that in these applications, the AI system is not actually “applying” the law. Rather, it is modelling statistical relationships between the language and outcomes in prior disputes to draw inferences about likely outcomes in other matters. However, simply predicting likely outcomes with a sufficient level of accuracy is likely to be very useful for many commercial parties. A prediction permits parties to determine an appropriate settlement value, and avoid the costs of litigation. The application of AI models to precedent data raises many important questions. From a practical standpoint, appropriately-trained AI model be embedded within an arbitral or other dispute resolution mechanism, to provide a cheap means of resolving disputes? Even if the AI a model’s predictions of how cases “ought” to be resolved contained a degree of random

error (as compared to application of the law by a human judge or arbitrator), it could still be attractive for parties who are repeat players in commercial disputes, across which individual errors could average out. From a normative perspective, automation of dispute resolution raises further questions about the circumstances under which such a process might be subject to (human) judicial review. Access to Justice More fundamentally, by lowering costs automation also holds out the promise of facilitating access to justice for many parties, including vulnerable individuals and small businesses. Yet while automation may readily promote access, it will also present challenges regarding the nature of the justice thereby engaged. The constitutional guarantees underpinning access to justice invoke long-standing principles including the central role of adversarial litigation and the right to a trial at common law, as highlighted by Lord Reed in the UK Supreme Court’s decision in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 at [66]-[85]. In this regard, a significant limitation the use of ML-based AI in legal applications is the lack of transparency concerning factors relevant to a prediction. ML can give an expected outcome—and perhaps even suggest the appropriate quantum of damages— but generally cannot not provide

any sort of readily-interpretable explanation behind this. For the time being, at least, this seems a fundamental obstacle to automation within our existing procedural rules. A “front end” for a system based on ML-based AI could be framed in terms of lay questions, to which the user could provide answers, and an outcome is automated: indeed, early experimentation as part of HMCTS’s digitalisation agenda is beginning to develop case triage on that basis. Simple matters such as conveyancing, lease agreements and wills can readily be automated; personal injury could be turned into a liability estimation mechanism, and so forth. As trust in such systems grows, parties might begin to feel comfortable waiving their right to a trial before a judge. The Need for Data The automation of legal decision making, finally, is not just a question of automating analytical processes through ML and related techniques: the best algorithm is of little use unless it can be ‘trained’ on relevant data sets. Data availability is thus crucial: whereas significant proportions of US and European Case Law have been made available in machineprocessable formats, English law (as well as justice system data more broadly) are yet to become similarly available. The challenge does not end with the provision of data: A further, related risk inherent in the

application of ML to existing datasets of human practice is that the data may reflect some element of bias in prior decisions against persons in respect of (now) protected characteristics. Given changing attitudes—and law—over time, it seems plausible that such bias is more likely to be present for older decisions. ML applications coded on such data may simply replicate this bias. Because ML cannot explain how results are achieved, it is not possible simply to examine the process of reasoning. Instead, it is necessary to explore other mechanisms for ensuring that the decision is free from discrimination. Conclusion As even this short overview demonstrates, the application of AI to law raises many interesting and challenging questions. Our research project will explore these over the course of the next two years: if you are interested to learn more or become involved, please get in touch!

john.armour@law.ox.ac.uk John Armour, Hogan Lovells Professor of Law and Finance at the University of Oxford, and a Fellow of Oriel College jeremias.prassl@law.ox.ac.uk Jeremias Prassl is Associate Professor in the Faculty of Law, University of Oxford

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A chambers’ guide to end of support for Windows Server 2008 By Paul Coote, Managing Director, Instant On IT

n less than a year’s time, Microsoft will end support for Windows Server 2008 and 2008 R2. That means that from January 14th, 2020 onwards, organisations using these versions of Windows server will no longer receive essential patches and security updates. For barristers’ chambers, this introduces uncertainty around your IT (and how much it will cost) in the future. Many rely upon Windows 2008 servers to run LEX, MLC, case management booking systems, accounting solutions, and any other line of business software they might need. These chambers will likely want to migrate to something more secure that receives continued support. But how do you upgrade or migrate to a safe and secure alternative, without introducing additional costs or disruption? In this article we will explore the options available to chambers, along with some of the hidden complexities and costs of upgrading on-premises servers.

Stay on-premises, or move to the cloud? In general, barristers’ chambers have three options for upgrading Windows 2008 servers: 1 Upgrade to Microsoft Server 2016/2019 (along with purchasing any new hardware and software required) and repeat the process and upgrade costs again when that reaches its own end of life; 2 Ask a service provider or your IT Support Company to host the server and software in their private cloud; 3 Move to Microsoft Azure cloud service and take advantage of built in security and predictable pricing. All of these options will get you the latest version of Windows Server, but each has its benefits and drawbacks. The hidden costs of staying on-premises Understandably, some chambers would prefer to stay on-premises.

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For many, that’s what they’re used to, and there’s still the perception among chambers that keeping servers, software and data close by is more secure than moving them off-premises. However, there are hidden upgrade costs to consider if you want to keep everything onpremises. For instance, some software vendors may have embedded their SQL Server licenses into their software packages or may pay for Software Assurance on their SQL licenses each year. However, Microsoft no longer allows software companies to use developer licenses in their implementations – so some chambers may need to purchase a new SQL Server license if they want to deploy LEX, MLC or another Chamber Diary management system on a new server. And if the server they want to use is too old, existing SQL licenses will no longer work on a new server, so they’ll need to procure all new SQL licenses as well. This means staying on-premises

with your upgrade could cost you twice: once for the upgrade licences to Microsoft Server 2016 or 2019, and again for new SQL server licenses. Having servers onsite also means you need to take care of your own security, backups and Disaster Recovery plans, adding even more costs and potential risks. Private cloud presents uncertain costs Another upgrade option is moving your application to your service provider’s private cloud. Using a private cloud means you avoid the SQL server licensing issue, as service providers can ‘lend’ licenses to their private cloud customers through Microsoft’s SPLA programme. However, Microsoft has continued to make private cloud hosting more expensive in recent years, and SQL license costs using this method have increased substantially over the last few years. As providers see their own expenses rise, there’s a chance they may pass the cost on to their clients. With no guarantee that prices will stay the same, private cloud hosting remains a

useful, but potentially expensive upgrade path for chambers. Using a private cloud also poses another risk: getting locked into a contract with your current supplier or IT Support Company. Vendor lock in could stop you from getting the best commercial deal, and make your IT less flexible in the future. The long-term benefits of moving to Azure cloud The third main approach is rehosting your server workloads and applications in a public cloud service like Microsoft Azure. This could be a big cultural change to how your chambers uses its IT. However, from a technical perspective, Azure offers an almost like-for-like hosting experience. As Azure is managed by Microsoft, it means you can move almost all services using Microsoft products or Linux with ease. Because Azure is based worldwide, it also means your services can be hosted in both UK datacentres and other locations as required . Unlike private cloud hosting, Microsoft is unlikely to hike prices due to the competition from other

public cloud providers. Even if Microsoft were to charge more eventually, Azure contracts can offer minimum terms of just one month – meaning you’re never locked in for long. Moving certain applications to a public cloud can also be done independently, without affecting the rest of your IT setup. Therefore, you can continue using your existing IT systems and Support Company, while getting the full hosting benefits of Azure. Three general options, one deadline to remember However you choose to upgrade, it’s important you have an action plan ready well before the deadline on January 14th, 2020 to ensure you aren’t putting your IT estate at risk. At this stage, it’s worth discussing your needs and options with your IT provider so they can help you make the most informed choice.

Paul Coote, Managing Director Instant On IT Phone: 020 3855 0055

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During the passage of LASPO the government conceded that eviscerating large parts of the legal aid ecosystem would have adverse effects, so it agreed to review the impact of LASPO between 3-5 years after its implementation on 1 April 2013

The LASPO Post-Implementation Review and Action Plan By Chris Minnoch, CEO Legal Aid Practitioners Group

t’s difficult to discuss the LASPO Review without discussing LASPO itself. But for the sake of brevity, and so that we can talk about the substance of the Review, let’s assume we all agree that LASPO was, or rather is, an unmitigated disaster. A disaster for clients and practitioners and for the justice system generally. The government might disagree, but even the National Audit Office determined that LASPO failed in all but one of its four stated objectives: it did in fact make significant savings for the government. Or at least it has in terms of the payments issued by the Legal Aid Agency to providers of legal aid. The jury is still out on whether the downstream costs of LASPO for the public purse are actually higher than the direct savings from LASPO itself. I suspect the financial and resourcing impact on a number of public services (courts and tribunals, health, social services, education, housing and homelessness…) far outweigh the cuts introduced by LASPO. I also suspect the intangible costs on social and community cohesion, on children and families, of the despair of being isolated and disenfranchised, are exponentially

more than the few hundred million quid saved on lawyers’ fees and disbursements. But here’s the rub: we don’t have the data. Because despite the government’s pre-LASPO impact assessments acknowledging the likelihood of significant negative consequences, no one in government thought to measure that impact. Now there’s a surprise. During the passage of LASPO the government conceded that eviscerating large parts of the legal aid ecosystem would have adverse effects, so it agreed to review the impact of LASPO between 3-5 years after its implementation on 1 April 2013. The government made noises about such a review between 2016 and 2018 and did in fact set up a team of civil servants to undertake it. The review stuttered along, undermined by a general election and regular changes in ministerial teams. In 2018 it finally gained momentum, after the 3-5 year period had elapsed, with the announcement of a series of meetings to consult with stakeholders and various other energies to engage with whoever expressed an interest. Our conference in June last year pulled around 90 sector representatives

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together with the MoJ to discuss a wide range of LASPO and justice issues, recognising that legal aid reforms don’t operate in a policy or operational vacuum. More than 130 organisations and individuals submitted evidence or met with the LASPO review team, which, to be fair, was very ably lead by two knowledgeable and committed civil servants. After another stutter at the end of 2018 the MoJ finally published the Review in February 2019, almost 6 years after LASPO was implemented. The Review looked at both Part 1 of LASPO (legal aid) and Part 2 (civil litigation costs). Along with the Review report the MoJ published a separately paper on inquests and a Legal Support Action Plan setting out how it intends to implement around 23 specific proposals . For our purposes here I’m going to concentrate on what’s covered by the review of Part 1 and the accompanying Action Plan and, crucially, what’s not. In my view, the Action Plan’s proposals fall into three broad categories: 1. Welcome but relatively minor concessions; 2. Proposals with real potential to

have a substantial and positive impact; and 3. Padding (in the absence of a commitment of significant time and resource) This is not, of course, how the Action Plan is structured. The government prefers to use headings such as accessible and efficient legal aid, complementary forms of legal support and fostering a culture of innovation. And we have to recognise that although the Review has now been published, this is just the beginning of a process of refining and implementing the proposals. Many will argue that we need to give the government the benefit of the doubt, and therefore more time, before we write-off any chance of substantial and substantive improvements. Others will say, quite understandably, that a 2-year review process was long enough to crystalize the proposals and implement the changes that are needed now. And others, including me, will argue that the Review contains some useful initiatives but largely misses the point. So, what are the welcome but relatively minor concessions? The government has confirmed that by the end of the autumn the legal aid scheme will be widened to cover separated migrant children in immigration cases and family legal aid for public law placement or adoption orders and private law special guardianship orders. It has also committed to improving the Exceptional Case Funding scheme by simplifying the application process and speeding up decision-making. These are all welcome changes but won’t make a huge difference in terms of the number of clients able to access legal aid. And they don’t address the gaping holes elsewhere in the scope of legal aid and the enduring damage caused by LASPO. More significantly, the government is undertaking a review of the mean test, of criminal fees and structures, and is re-introducing face-to-face advice in debt, discrimination and special education needs cases. It is also exploring an alternative model for family legal aid and will evaluate the effectiveness of early advice in social welfare law through a pilot project. All of these initiatives have the potential to address both some of the injustices caused by LASPO and some of the irrationalities of the legal aid scheme that existed pre-LASPO. But the key word is potential. For these proposals to bear any real fruit for clients, the government is going to have to accept that the legal aid bill is going to increase. Trying to be more efficient, leaner, work smarter not harder (etc.) doesn’t work for a sector already running on fumes or subsidising their legal aid work with privately funded work. And then there are the proposals that have a real chance of achieving nothing unless real weight and expertise is thrown into them. Time will tell whether they were included as padding. But statements such as ‘we will work more closely across government, including through existing cross‑government groups, and bringing together departments and support providers to focus on ways to reduce preventable demand’ sound great. All legal aid lawyers tear their hair out daily with DWP, Home Office and local authority decision making. The success rate of ESA and PIP appeals demonstrates that better decisionmaking would prevent demand for legal advice. But LASPO removed many of these ‘preventable’ cases from the scope of legal aid and the Review doesn’t seek to change that. And to truly get to the heart of preventable demand is a huge undertaking. Does the MoJ have the inclination or the resources to really

tackle this? Are other government departments going to play ball? Critically, the Ministry of Justice won’t tell us how much the proposals will cost and, from what we know so far, hasn’t secured any additional money from the Treasury to deliver them. The Lord Chancellor recently conceded to the Justice Select Committee that the Ministry’s timetable for implementing the proposals (and any subsequent changes which could flow from them) is not in line with the next spending review. Is there a risk that positive reform will be undermined by a failure to secure additional funding? Civil servants are telling us that they want the further reviews and pilots to provide the data and evidence required to secure more investment in legal support. But of course, all of this has to be viewed in the context of ongoing cuts and a government that is divided, distracted and may soon face an election. Will pledges to spend more on legal aid and the justice system win votes in that context? All of those currently involved in the delivery of legal aid must also remain conscious of one of the key overarching themes running through the Review and Action Plan: future government policy is about legal support not legal aid. My view is that the government sees legal aid as the preserve of solicitors and the barristers they instruct. I also believe many in government consider legal aid solicitors and barristers to be expensive and, well, irksome. Legal support is a much broader concept, as the Lord Chancellor acknowledges in the foreword to the Action Plan by stating that legal aid has ‘an important role’ but is ‘only one part of the picture’ for ensuring clients can access ‘the right support, at the right time, in the right way for them’. I think we all agree that those with a legal problem need a broad range of solutions. But the foreword also hints at the government’s view of lawyers by conflating their role with a visit to court. Clients faced with court proceedings need a lawyer, but the expertise of lawyers also prevents or shortens proceedings and resolves issues that don’t involve proceedings. Let’s not forget that the Review and Action Plan are the government’s view on how to improve legal aid and legal support. And the government holds the purse strings when it comes to legal services for those with limited means. However, I believe the government has missed the point. The legal aid system needs to cover more of the legal problems that our clients face and legal aid lawyers need to be properly remunerated for the difficult and invaluable work they do. Any wider system of legal support will be totally ineffective with a robust, accessible and sustainable legal aid system, irrespective of technological innovation, better use of data and better co-ordination across government departments. If the Lord Chancellor really is ‘committed to protecting and ensuring access to justice for future generations’ then the government must make legal aid available to more of those who need it and must properly invest in those who deliver the service. Doing so isn’t reckless spending. It is a prudent investment.

Chris Minnoch, CEO Legal Aid Practitioners Group --------------1 See the main body of the report here: Post-Implementation Review of Part 1 of LASPO and the accompanying Legal Support Action Plan

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Policing by machine By Hannah Couchman, Policy and Campaigns Officer, Liberty Police forces across the UK are using computer programs to predict where and when crime will happen – and even who will commit it. These dangerous practices entrench biased approaches to policing and threaten our human rights. At a time of swinging cuts to public services and rising concern around serious youth violence, technology and data is being heralded as the panacea – from the discriminatory Gangs Matrix through to the roundly criticised Prevent program. The Government is seeking to harness hordes of data to categorise people, make predictions about their behaviour and ultimately exert control. At the centre of these approaches is the notion of “pre-criminality” – that some people or communities are pre-disposed to offending behaviour because they display “risky” characteristics, justifying increased surveillance. This offensive idea lies at the heart of new predictive policing being used by police forces across the UK. WHAT IS PREDICTIVE POLICING? Predictive policing computer programs use algorithms to analyse masses of police data, identifying patterns to make predictions about crime. These programs can often “learn” over time and become more autonomous without having to be programmed. In 2018, Liberty sent Freedom of Information requests to every police force in the UK to build up a picture of how predictive policing was being used. Liberty’s ‘Policing by Machine’ report collates the results, as well as outlining the risk that the use of these programs presents to our rights. The report focuses on two key types of predictive policing program: predictive mapping programs and individual risk assessment programs. PREDICTIVE MAPPING PROGRAMS Predictive mapping programs use historical police data to identify “hot

spots” of high crime risk on a map. Police officers are then directed to patrol these areas, which are often already subject to disproportionate over-policing. The following police forces have used or are planning to use predictive mapping programs: Avon and Somerset, Cheshire, Dyfed Powys, Greater Manchester, Kent, Lancashire, Merseyside, Metropolitan Police, Northamptonshire, Warwickshire & West Mercia, West Midlands and West Yorkshire. INDIVIDUAL RISK ASSESSMENT PROGRAMS Individual risk assessment programs use data, including personal characteristics, to predict how an individual person will behave, including whether they are likely to commit – or even be victims of – certain crimes. This encourages an approach to policing based on discriminatory profiling. Individual risk assessment programs are being used by: Avon & Somerset, Durham and West Midlands. DISCRIMINATION The data used by predictive policing programs inevitably reflects preexisting patterns of discrimination. For example, predictive mapping programs utilise police arrest data, which does not present an accurate picture of where crime is happening – instead, it reflects how different communities are already being policed and how crime is currently reported or goes unreported for reasons including mistrust and fear. Mapping programs are likely to spark “feedback loops” – a process which sees officers sent back to patrol communities which are already experiencing over-policing. The use of these programs puts a “neutral” technological veneer on biased policing and further embeds this approach into policing practice. Discriminatory approaches are also entrenched in individual risk assessment programs, which

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encourage an approach to policing based on offensive stereotyping. For example, Durham Police have used a program called Harm Assessment Risk Tool (HART) since 2016. The program uses machine learning to decide how likely a person is to commit an offence over the next two years. It analyses data including a person’s age, gender and part of their postcode which may act as a proxy for race and encourage dangerous profiling. The HART program has previously used data provided by Experian to link people’s names to stereotypes: for example, people called Stacey are likely to fall under “families with needs” who receive “a range of benefits”, while Terrence and Denise are “low income workers” with “few qualifications”. Running this kind of data through individual risk assessment programs inevitably encourages discriminatory associations between factors such as family circumstances, income, class and the propensity to commit crime. Meanwhile, a new risk assessment tool being developed for use by West Midlands Police will draw upon stop and search data when assessing someone’s risk – even though this police power is disproportionately deployed against people from BAME communities. Government statistics show that black people are around nine and a half times as likely to be stopped as white people.

A UBIQUITOUS WEB OF SURVEILLANCE The potential for predictive policing to be utilised alongside other deeply invasive tools gives rise to a sinister web of surveillance that utilises biometric, surveillance and communications data together to create an unprecedented intrusion into our daily lives. Combined with the roll-out of facial recognition, mobile phone data extraction tools and body worn video, we move towards a model of policing which sees a significant shift in the balance of power between the state and the individual, with people forced to justify their entitlement to privacy

rather than the state justifying its intrusion. As we become more conscious of the ways in which our data can be used against us, there will be a chilling effect on what we say, where we go and who we associate with. And the threat to our free expression and free association will be most keenly felt by those communities which are already subject to disproportionate interventions by the police. TRANSPARENCY The calculations performed by predictive policing programs are opaque, and their recommendations cannot be adequately explained, interrogated or challenged. While this is particularly the case where predictive policing programs have been purchased from private companies – because the algorithms are likely trade secrets – it is also the case with internally developed programs. Even the scientists who create the algorithms will be unable to fully explain how a program arrives at its decision. This means that we can’t interrogate these predictions for bias or challenge their predictions in the same way as we could a human officer. While many police forces will rely on the fact that a human officer will always be involved in the decision-

making process, this raises significant concerns about automation bias – where a human decision-maker defers to the machine and accepts its recommendation. Enabling humans to work alongside algorithms requires in-depth and long-term research, analysis and testing – and there is no evidence, as yet, that automation bias can be sufficiently mitigated. OVERSIGHT AND ACCOUNTABILITY A multitude of oversight committees and boards have been introduced over recent months, focused on everything from algorithmic bias to the ethical concerns presented by individual technologies. While critical engagement is to be welcomed, we should be cautious around how far these bodies are equipped to push back against the introduction of these programs and practices. These technologies should be considered using a human rights framework rather than one of unaccountable ethics – and before we ask about fairness, accountability and transparency we should be asking what the rights risks are and whether these technologies should play a role in policing at all.

very least, police forces in the UK should fully disclose information about their use of predictive policing programs so there can be a wellinformed public and parliamentary debate around the way that we want to be policed. The Government should now focus on meaningful responses to underlying causes of crime. Technology cannot provide a quick fix to problems which require a holistic consideration of, and investment in, areas such as education, housing, employment, mental health support and social care. Computer programs which can assist in preventing crime before it even happens may sound laudable, but they perpetuate approaches to policing predicated on these dangerous ideas around who is inherently risk and likely to offend. The impact of these approaches on our privacy and freedom of expression is significant – but they also entrench the discrimination which is deeply embedded in our society’s data.

Liberty’s report, Policing by Machine, is available at: www. libertyhumanrights.org.uk/pbm

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THE FUTURE Liberty calls for the use of predictive mapping programs and individual risk assessment programs as it currently exists to be ceased. At the

https://www.ethnicity-facts-figures. service.gov.uk/crime-justice-and-thelaw/policing/stop-and-search/latest

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Reforms in divorce law: more amicable outcomes, but still too long a wait By Lindsay Yateman, solicitor at Excello Law

ivorce laws in England and Wales are set to undergo their biggest reform in nearly half a century. And not before time. After significant lobbying from all sides of the legal profession over many years, the government finally announced in April that reform is on the way. The impetus for change had gained significant traction thanks to much public comment from leading members of the judiciary, the Family Mediation Taskforce and Resolution, the national organisation of family lawyers, which have all argued in favour of no-fault divorce being introduced. The concept has an interesting history. In the UK, divorce used to be governed by the church. It was rarely granted and always based on fault, invariably meaning the wife’s adultery. Until the last century, divorce was never permitted by consent and there was a strict bar on spouses colluding in order to obtain one. Calls for no-fault divorce stretch back over many years, perhaps most notably from the late Sir Nicholas Wall, former President of the Family Division. Internationally, other countries got there long ago. The first specific nofault divorce law was enacted in Russia in 1917 immediately after the October Revolution. China followed suit with

the adoption of the New Marriage Law in 1950. California became the first US state to allow it via the Family Law Act of 1969. Today, every US state permits no-fault divorce, although requirements for obtaining one vary from state to state. Elsewhere, Australia established no-fault divorce in 1975, followed by Canada in 1986 – like much of the US, both countries require a separation period of one year. The UK is therefore notably behind the curve in no fault divorce compared to many other countries. The government finally announced that change was imminent after a public consultation which was launched last September. The Justice Secretary, David Gauke, said that no-fault divorce would be introduced as soon as parliamentary time became available, adding that: “While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.” Gauke’s ‘outdated law’ is the Matrimonial Causes Act 1973, the piece of anachronistic divorce legislation which allows for petitions to proceed only if there is proof of continuous separation. The only ground for divorce is irretrievable breakdown of the marriage. Presently, any party who wants to divorce their spouse has to

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provide evidence that their partner is at fault. This can be done either through adultery, desertion or unreasonable behaviour, or subject to mutual agreement by both parties, they can part after two years of continuous separation. If there is neither consent nor evidence of fault, and one spouse does not agree to the marriage being ended, then the two parties have to live apart for a period of five years before they can eventually divorce. After nearly half a century on the statute book, the Matrimonial Causes Act is, at best, cumbersome and, some would argue, cruel since American studies have shown it leads indirectly to higher rates of suicide and domestic violence. Most commentators agree that it is out of step with modern attitudes and the reality of many broken relationships in 21st century Britain, which is an increasingly secular and pluralistic society. So how will the new law be different in practice? The key element of the changes outlined by Gauke is the removal of the requirement to rely upon unreasonable behaviour, adultery or two years’ separation in order to demonstrate that the petitioner is automatically entitled to a divorce.

The rationale is to simplify the process and shift the emphasis from blame towards resolution. Prudently, the irretrievable breakdown concept as the sole grounds for divorce will be retained. Likewise, the two-stage process of a decree nisi followed by a decree absolute will also remain in place. But under the new legislation, all that will be required is that one or both parties has to provide a statement that the marriage has irretrievably broken down. A six-month minimum period will be set between a petition being lodged and the divorce becoming final, which is designed to allow both parties to reflect on their decision. The new law will prevent either party from refusing a divorce if their spouse still wants one after that time has elapsed. A new concept will be introduced allowing for a joint application for divorce, which is intended to remove unnecessary hostility and blame from the process. The government and family practitioners anticipate that this will encourage much greater consensus and, hopefully, more amicable outcomes. This will be of particular importance in helping to improve the position for the children of divorced parents. Significantly, the new legislation will also be designed to remove the ability

of one party to contest a divorce contrary to the wishes of the other. The ability of a husband or wife to contest is used less than two per cent of divorces and was relatively little-known or discussed until the considerable publicity given to the long running case of Owens v Owens, which ended last July. The Owens case was unusual in several respects, the most notable of which is that it went as far as the Supreme Court - the only contested divorce of its kind to reach that level for several years. Mr Owen’s lawyers argued that his wife had failed to prove that the marriage had irretrievably broken down. By a majority ruling, the judges upheld earlier rulings made by a Family Court and the Court of Appeal, namely that Mrs Owens had to remain married to a man whom she wanted to divorce because her husband would not consent to a divorce. The judges “reluctantly” told her that a joyless marriage (the Owens had been married for 40 years) was not adequate grounds for a divorce if one spouse refuses to agree. “The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being,” the Supreme Court judge Lord Wilson said in his ruling. “Parliament may wish

to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.” He added: “The Family Court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”. The judgment made one thing clear: although the Supreme Court can interpret the law, only Parliament can change it. If the argument for reform had become compelling and urgent, the verdict and the judges’ comments in the Owens case were the key catalyst for change. So will the new law work? Although it certainly promises to improve the situation for many divorcing couples, there are shortcomings. Most notable among them is the new proposed time limit: a minimum timeframe of six months, designed to allow couple to reflect from the date of the petition to the final divorce order/decree absolute. This does not, however, go far enough. Once someone has made the decision to petition for divorce, even six months may well feel like too long to wait.

Lindsay Yateman is a solicitor at Excello Law. www.excellolaw.co.uk

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Online justice: investment needed as drive for reform grows By Joanne Harris

“

“The benefits of online justice are perhaps more noticeable for unrepresented litigants, which is really who most reforms are intended to assist”

”

t the end of 2018, London hosted the inaugural International Forum on Online Courts. The event was attended by around 200 legal professionals and other stakeholders from over 20 countries, with discussions focusing on the development of online courts. The launch of the Forum is indicative of how, globally, justice is moving online. Both civil and common law jurisdictions are now experimenting with a variety of tools aimed at speeding up litigation while making the courts cheaper and easier to access. The potential benefits of getting online justice right are huge, cutting cost and time from the dispute resolution process. Getting it right, though, requires substantial investment and stable technology as well as buy-in from the profession. Many of the reforms being carried out globally are designed to take away some of the fear of using the justice system. Electronic filing

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(‘e-filing’) for divorce and other small claims is now widespread. Richard Goodman, Change Director for the United Kingdom’s HM Courts & Tribunals Service (HMCTS), reveals that in the days of paper filing, 40 per cent of divorce applications were initially rejected. Since the introduction of the ‘Divorce Online’ system in April 2018, Goodman says the failure rate has plummeted to just 0.4 per cent. Goodman says the reforms currently underway in the English and Welsh courts began with a focus on litigants in person, with the online offerings to date being predominantly e-filing for divorce, probate and civil money claims. Tom Price, Co-Chair of the IBA Litigation Committee and a litigation partner at Gowling WLG, acknowledges this focus. ‘The benefits of online justice are perhaps more noticeable for unrepresented litigants, which is really who most reforms are intended to assist. Bringing those processes online into a form consistent with other familiar tasks

like paying vehicle tax makes them more familiar and less intimidating,’ Price says. Andrew Mackenzie, Co-Chair of the IBA Access to Justice and Legal Aid Committee, suggests that technology could increase access to justice, particularly for people in remote areas and those with disabilities. Mackenzie says avoiding a courtroom with challenging physical access, or a journey to court, could benefit many. ‘Online dispute resolution also offers to persons with motor or cognitive impairments the advantage of taking the necessary time to participate effectively,’ Mackenzie says. ‘Documents can be submitted online, and negotiations between the parties can similarly be conducted via text-based communication, making participation in the resolution process much more convenient and efficient.’ Mark Woods, also a Co-Chair of the IBA Access to Justice and Legal Aid Committee, adds that, in his view, online justice is a good thing, although he notes not everyone agrees. However he says digital courts could be a step too far. ‘If the factual situation is so simple that artificial intelligence can readily apply the law to it, the reality is that the case will settle with two experienced lawyers negotiating,’ Woods points out. For lawyers using the courts, electronic working is starting to generate benefits. Richard Atkins QC, Chairman of the Bar Council of England and Wales, reports his days of lugging boxes of paper to court are now gone as the criminal courts have become largely paperless. Some jurisdictions have gone further than offering practitioners digital filing and bundles. In British Columbia, Canada, the recently established Civil Resolution Tribunal resolves small claims valued at less than CAD $5,000, some property disputes, and as of April 2019, motor vehicle accident and injury claims of up to CAD $50,000. Australia’s Federal Court also has an online court, called eCourtroom, which handles issues such as ex parte applications for substituted service in bankruptcy proceedings, applications for examination summonses and the giving of directions or other orders, although it has not been used for trials.

Mike Hales, a litigation partner at law firm Minter Ellison, says: ‘In a country the size of Australia, the main benefits of any electronic improvement in the courts is accessibility and costs savings, particularly for those living in remote locations.’ But Hales adds that there have been teething problems, especially with e-filing and the variety of systems used by different courts. ‘The courts have been reactive to practitioners’ concerns about these issues and they are diminishing over time as the court’s systems become more flexible and practitioners get more used to them,’ he acknowledges. In the UK, the failure of the Ministry of Justice’s information technology systems hit the headlines in January 2019. Goodman says none of the online services offered to litigants in person stopped working. ‘Courts continued to run up and down the country and hearings continued to progress because of good continuity business planning,’ he says. He acknowledges the failure was ‘unacceptable and deeply frustrating for our staff and people who use and work across the justice system. We shouldn’t be suffering IT outages of this nature at all, so there’s clearly work to do with the central department to reduce the chances of that happening again’. ‘It is understood these issues related to the existing, aged infrastructure, rather than the modernised systems the court is introducing, but it highlights that the infrastructure can be a weak point and needs continued investment if digitisation is to be a benefit,’ Price says of the outages. Atkins says the issues seemed to be a ‘perfect storm’ with both the secure criminal email system and servers crashing at once. ‘The drive to go digital must be backed with sufficient funding,’ he points out. Atkins backs the general thrust of reforms, but says they need to be supported in the right way. ‘We’ve moved a long way in a relatively short space of time. We need to make sure we don’t run before we can walk,’ he concludes. Joanne Harris is a freelance Journalist

This article was first published for IBA Global Insight online news analysis, 26 February 2019, [available at www.ibanet.org] and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

Meanwhile the New South Wales (NSW) government is investing AUD $7m over four years to establish a fully online court, with the Local Court Small Claims Division and the Possession List of the NSW Supreme Court set to be the first to test the system.

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Politics and the law: Where do we draw the line? By Jo Delahunty QC, Barrister 4 Paper Buildings, Gresham Professor of Law

hilst the division of legal authority between Parliament (our primary law maker) and the courts (our interpreter of the legislation passed) and the sovereignty of Parliament is a concept familiar to the judiciary, respect for it in practice has been challenged by politicians, the press and the public who have, in recent times, asked whether judges have exceeded their powers when judicial decisions have been made which offend them. That challenge has made me question how and where the judiciary draws the line between what is in their remit and what is a matter for government. In writing this lecture for Gresham, delivered on 7.3.19, I had had a number of overlapping ‘voices’ in mind: those of the judiciary, Parliament, the press and the public. Consider press and public reaction to the successful Article 50 challenge mounted by Ms Miller and the resultant judgment of the High Court in R. (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). Remember the Daily Mail headline identifying and naming the judges as ‘Enemies of the People’ and Nigel Farage’s front-page article entitled ‘Voters aren’t going to let this incredible arrogance lie’ beneath the Daily Telegraph’s headline ‘The Judge versus The People’. What pressure does a vocal public and press bring to bear upon the decisions of our politicians and judges? Consider the Home Office letter sent to Shamima Begum informing her that an order was being made under the British Nationality Act 1918 stripping her of her citizenship; a letter sent before ascertaining whether she had dual nationality and then receiving legal advice upon the legitimacy of the order made. This attracted criticism of the Home Secretary that he was seeking to exploit a tide of hostile populist feeling without paying proper attention to the law.1 What of Lord Hain MP, under parliamentary privilege, naming Sir Philip Green as the subject of allegations of sexual harassment and in the process of doing so, riding a coach and horses through the “super injunction” granted by the court to Sir Green protecting his identity? 2 What of serving judges, such as Hayden J, decrying the lack of

legislative powers at his disposal in court, knowing and intending that his comments be made public? He called for powers to enable him to redress the institutionalised abuse he was obliged to preside over, when watching a victim being cross examined in person by her alleged abuser due to a lack of legal aid and legal representation.3 What do these examples say about the level of mutual respect between politicians and judges and about the understanding of their separate spheres of power and influence? What do these illustrative headlines tell us about the interface between politics and law? My lecture, and this article taken from it, explores the conflict between the two, in practice rather than theory. Having read and digested the many speeches given by academics, journalists, Law Lords and Ladies on the subject matter I have come to appreciate that there are as many differences as there are similarities in approach. This lecture comes with a health warning that the views I express are my own and what one lawyer argues, another may rebut with great coherence and force. HOW THE JUDICIARY RESPECTS THE BOUNDARY The boundary of law and politics is permeable; different judges reach different judgements on the same facts when this permeability comes to the fore; this variety in judgements is the result of excess, rather than too little, care by judges to police this boundary, as it arises from there being multiple well thought-out viewpoints on how best to conceptualise law and politics. 1.1 A V HOME SEC Following 9/11, the UK had derogated from its obligations under Article 5(1) ECHR (right to liberty and security) by detaining, with neither charge nor trial, foreign nationals for whom deportation was not a possibility, using the powers available under Article 15 ECHR (which is conditional upon war or other public emergency threatening the life of the nation) 1.2 BOUNDARY IS NEBULOUS Does the approach the court takes depend on its composition and the permeable nature of the boundary

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between the remits of the legislature, executive and judiciary? Does the balance between judicial activism or judicial deference come down to the personality and persuasion of the judge(s) and the case in question? This case appears to answer both questions in the affirmative. 1.3 DIFFERENT JUDGES --> DIFFERENT JUDGEMENTS a) The interpretation of law and balancing the autonomy of the judiciary and the sovereignty of Parliament is an art not a science: different judges police the boundary from different directions When matters of legal and ethical importance require determination by the court in circumstances where the issue has not been prefigured by the legislature, the application and interpretation of existing legal principles to a unique case will be a matter of judicial art (with its elements of subjectivity and individuality) rather than science. That is why different judges in the same court can and do reach different conclusions on the same law applied to the same facts. That is an important matter for professional acknowledgement not just because it is patently true, but because in deciding whether to make a decision that will effect a change in the common law different judges may draw the line between their autonomy and the sovereignty of Parliament. Judges of equal standing and calibre may take different courses. Where one judge may step back and refer the matter to Parliament, another may make deliver a judgment which will move the law on. The composition of the court can affect a case’s outcome. The division of the court makes this plain. However, the quality of the judges’ analysis in this case is uniformly exceptional: it is intellectually robust, it is transparently laid out. One knows who has decided what and why. The judgements have a clarity and eloquence that is often missing in parliamentary debate. What is missing here is accountability to the electorate for the decision. The point of interest to me is that this was not a unanimous decision. I make the point again about equally competent judges coming to differing interpretations of the same law on the same facts. Lord Hoffmann dissented on the public emergency issue and Lord Walker dissented on the

proportionality and discrimination issues. There is a range of equally astute, intellectually robust decision makers in the Supreme Court: one should not (nor can one I believe) take the personality (with all its power of individual thought, experience, reflection and analysis) out of the equation when considering the way in which judges can develop (and challenge), by interpretation of the law, what might have been the intent of the government. That would be artificial, in my view. 1.4 BC EXCESS CARE OVER BOUNDARY This case shows the court wrestling with the boundaries of their role and what is to be considered to be political (and therefore out of their remit), in the context of the government having declared a state of emergency that threatened the life of the nation. Contrast and compare the approaches of Lord Hope of Craighead:

“[…] whether there is an emergency and whether it threatens the life of the nation are pre-eminently for the executive and for Parliament.” [para. 116] …with that taken by Lord Hoffman dissenting on this point with Lord Bingham:

“I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community […] in my opinion, such a power in any form is not compatible with our constitution. The real threat

to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give terrorists such a victory.” [Para. 96-97] [my emphasis] Lord Hoffman suggests there is no evidence a threat existed which “threatened the life of the nation.”, whereas Lord Hope seems to assert that any evidence or lack thereof is the executive’s to consider, not the court’s. It can clearly be seen in the passage quoted above however, that Lord Hoffman’s readiness to adjudicate on the matter arose not out of a disregard for the boundary between law and politics, but out of a concern that political decisions did not trample on legal, constitutional rights. This emphasises the point that diversity in judgements is the result of an excess of care over policing the boundary, and a variety of conceptualisations of how best to do so. Space precludes a discussion of what these conceptualisations are and the comparative merits of them; it suffices for our purposes that a variety has been shown to exist, and all are concerned with respecting the boundary between law and politics. The full version of this article can be read at: http://www.barristermagazine.com/politics-and-the-lawwhere-do-we-draw-the-line/

--------------1 https://www.theguardian.com/world/2019/feb/19/isisbriton-shamima-begum-to-have-uk-citizenship-revoked 2 https://www.theguardian.com/politics/2018/oct/26/ naming-of-philip-green-will-reopen-issue-of-parliamentaryprivilege 3 Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam), para 60 and 63

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Media - Threat or opportunity? By Sam Rogers , director at specialist PR firm, Uprise Legal

Utilised correctly, social media has the potential to catapult a chambers from a name discussed from time to time in Daly’s to a set recognised outside of Temple as one to engage with. Used incorrectly, a chambers can become a name known by outsiders for all the wrong reasons

s a rule, barristers are not strangers to the media. Frequently taking up opportunities to provide ‘expert comment’ or offer expertise in the legal sections of the mainstream press, legal journals and even on television, each time with a view to adding a little well-earned gravitas to their professional reputations.

While most are of course great speakers, well able to give colour to even the most technical of matters, a barrister isn’t always at their best in front of a camera or a grim-faced reporter, and suddenly, best intentions notwithstanding, the end result, and the perception of those reading or watching the interview, doesn’t quite match what was hoped for at outset. On the scales of reputation, a negative comment outweighs a positive one by a somewhat unfair margin and, even when media appearance after media appearance has gone beautifully, a bad slip-up can sometimes send the scales clattering clean over.

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As my esteemed colleague was once quoted: “Consider a good reputation as being built out of papier maché, made strong over time with layers of long garnered public favour and hard-won goodwill. All easily destroyed if you try to protect it by swinging a sledgehammer.” Nonetheless, there are steps you can take to minimise damage, and steps that have the potential to cause yet more harm: consider the London chambers whose barrister was stripped of his QC status, disbarred and disgraced, who had still not taken that barrister off their website some three years later. No doubt the chambers in question felt some loyalty to the QC in question, but business is business, and personal feelings have no place when it comes to reputation management. As disloyal as they may have felt, a statement distancing themselves from the QC would have allowed them to retain their otherwise exemplary public image and avoided them getting dragged into a damaging scandal. The growing threat of ‘bad’ coverage on social media While no stranger to the printed press, or indeed broadcast, the legal industry has been among the last to fully understand the opportunities – and the risks – posed by social media, and among that group, it is fair to say that barristers are bringing up the rear. Utilised correctly, social media has the potential to catapult a chambers from a name discussed from time to time in Daly’s to a set recognised outside of Temple as one to engage with. Used incorrectly, and a chambers can become a name known by outsiders for all the wrong reasons. This delicate balancing act is why so few chambers have used social media to its fullest potential – generally using it to post bland statements about the areas they practice in, rather than engaging in a meaningful way with industry peers, the media, and potential clients. Alongside the obvious issues with commenting on live cases, something which colleagues in solicitor’s firms do not have to worry about, social media can often appear to barristers a minefield to be tiptoed across or, as often, not ventured into at all. The Supreme Court has noted that social media, and more broadly the internet in general, is not controllable, nor is there the precedent or regulation that exists elsewhere and asserts that the courts must adapt their approach in order to deal effectively with it. The internet is a new phenomenon,

relatively speaking, and has not had the regulation and governance applied to it that it perhaps will in the future. The Government recently proposed new measures that would give it more control over the companies that operate social media platforms, provide a framework for regulation and, more specifically, enforce the removal of ‘harmful’ content on pain of large fines and the threat of blocking the service altogether. The consultation aims to create a legally enforceable ‘duty of care’ towards social media users and is set to run until 1stJuly 2019. What might be included in such a framework is debatable, but it seems unlikely it will do much to protect the professional reputations of all but the tiniest percentage of users. And so the industry relies largely on self-governance, the effectiveness of which, by its nature, varies significantly from one social media platform to another: In theory, the terms and conditions of major platforms like Facebook and YouTube already guard, often very effectively, against ‘terrorist propaganda’, ‘revenge pornography’, ‘violent images or content that might incite violence’, but this isn’t the content most likely to harm the professional reputation of your average barrister. In practice, with each person having an average of seven active social media accounts, it is easy to understand how, in statistical terms, the average user has a carte blanche to post whatever they want. With the sheer volume of content being published, regulation of individual posts that might potentially harm someone’s professional reputation is simply not realistic.

reputation with them. So, what can be done about it? It is an oft-cited truism, that a worthwhile social media account, at least from a reputational perspective, must be posted on frequently and with varied and interesting content. More than this, even at the most basic of levels, content must not only be interesting, but likely to reach, and preferably stimulate engagement from, those to whom one’s professional reputation and activities is of some consequence. In the case of barristers, this means appropriate solicitor’s firms or potential direct access clients – and this often means specific individuals. While in legal terms social media is young, in terms of the knowledge and expertise needed to make it an effective professional tool, it is maturing at high speed. Posting about one’s successes in a specific case, while worthwhile in part, is no longer sufficient on its own. The nature of the Bar is that working hours are unpredictable and the work is tough. Whichever area of law a barrister specialises in, it is fair to say that there is rarely a predictable day. While many find this aspect of the job a driver, it also makes media interviews tricky to schedule and consistent, well-timed social media posts nigh on impossible. Outsourcing your public image to a third party is an option, but is also an exercise in trust, and if you are considering engaging an agency to represent you or your set in the best possible way, it is crucial that you work with one who understands your field, your target market, and the complexities of the sector.

Clearly, what a barrister can and can’t say in public, whether on social media or otherwise, is not dictated only by their discretion. Nonetheless, as far as reputation is concerned, there is still significant opportunity to say the right thing, and an equally significant opportunity to get it very wrong.

Securing media coverage is not, in theory, difficult for most barristers; fulfilling it effectively, to maximum effect and leveraging that effect across social media is an art few have mastered – nor might they want to: already having precious little free time in their diaries.

Most commonly, a barrister’s reputational damage isn’t the result of the kind of ‘trolling’ that certain celebrities and public figures are subject to. More often, we are talking about an errant, misguided tweet, failure to respond to a potentially damaging comment, or responding in a way which itself erodes reputation.

As the sector’s uptake of the digital world increases pace, so too will the competition from other barristers and chambers, each vying for the best run twitter account and the most impactful media presence. In the meantime, though, there is plenty of opportunity to steal a march.

A barrister can rely on the reputation of their chambers, but one’s own reputation must be nurtured, not only in the interests of career longevity, but in the pursuit of excellence, not least because barristers move from chambers and chambers, taking their

Sam Rogers is a director at specialist PR firm, Uprise Legal (https://uprisepr. com/uprise-legal).

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The importance of transparency in the disclosure process

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By Johnny Shearman, Professional Support Lawyer and Stephanie Eaton, associate at Signature Litigation LLP

Disclosure is a cooperative process. The principle that underlies this statement is not new and yet in the contentious world of English Litigation, parties routinely overlook its sentiment (whether by accident or, as is more likely, by design). The recent decision in Kevin Taylor v Van Dutch Marine Holding Limited and others [2019] EWHC 324 (Ch) is a timely reminder that parties must cooperate when in it comes to disclosure. This requires transparency not opaqueness, as highlighted by the court in this case.

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his article considers the decision in Taylor and looks at what level of cooperation is expected of parties under the pre-existing regime in CPR Part 31 and under the new Disclosure Pilot Scheme (the “Pilot Scheme”) . The Dispute The claim arises out of a loan of approximately $1.6million given by the Claimant to the First and/or the Second Defendant. The First to Fourth Defendants (the “Original Defendants”) never defended the underlying claim and judgment in default was entered against them. That judgment remains unsatisfied. Subsequently, the Fifth to Seventh Defendants (the “Additional Defendants”) were adjoined to the claim on the basis that at all material times the Original Defendants were acting as agents for the Additional Defendants as undisclosed principals. Further, the Claimant alleges that all the defendants have conspired to injure him by unlawful means.

The subject of the recent decision was an application brought by the Claimant to address numerous complaints levelled at the disclosure of the Additional Defendants. In particular, the Claimant complained that the Additional Defendants’ List of Documents were incomplete and failed to explain the search parameters used for disclosure including the dates, locations and categories of documents. Further, the Additional Defendants did not provide an Electronic Documents Questionnaire (“EDQ”). Whilst not compulsory, the Claimant complained that by failing to complete an EDQ, the Additional Defendants had failed to address issues such as how electronic documents, such as emails, had been harvested and assessed for relevance. Decision In short, the court resolutely agreed with the Claimant’s assessment of the Additional Defendants’ disclosure and ordered the

Additional Defendants to engage in a further process of disclosure to address the Claimant’s concerns. The court highlighted that a party’s List of Documents should enable the court and the opposing party to evaluate the adequacy of the search carried out. The court noted that disclosure is a transparent, not an opaque process by referring to CPR31.6(a), which requires a party to set out the extent of the search which has been made to locate documents which are required to be disclosed. Further, the court underlined the importance of the opposing party (and the court) being provided with sufficient information to be satisfied that a proper and careful search has been carried out. This includes the disclosing party investigating and disclosing the extent to which disclosable documents have been lost or destroyed. This information enables the opposing party, if appropriate, to interrogate the reasons why disclosable material is no longer available.

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It is important to note that whilst the application in this case was heard after the commencement of the Disclosure Pilot Scheme, the judgment relates to obligations under the pre-existing regime in CPR Part 31. Therefore, the decision’s direct application is limited to those courts that are currently excluded from the Pilot Scheme . However, in practical terms, the decision in Taylor has important and wider implications given the court’s renewed focus on the level of cooperation required by parties during the disclosure process. Cooperation and the disclosure process under Part 31 There are numerous provisions in CPR Part 31 and the accompanying practice directions that allude to and explicitly refer to the cooperation required between parties during the disclosure process under the pre-existing regime. For example: •

CPR 31.10 requires each party to serve a list of documents which identifies documents in a convenient order;

•

CPR 31.10(5) and (6) provide that the disclosure list must also contain a disclosure statement which should set out the extent of the search that the disclosing party has undertaken;

•

Practice Direction 31B paras. 8 and 9 require the parties to have a discussion about the scope and methodology of electronic searches before the first CMC;

•

Practice Direction 31B para. 32 states that the parties should cooperate at an early stage about the format in which electronic documents are to be provided on inspection; and

•

Practice Direction 31B para. 36 states that the disclosing party shall cooperate in making available inspection facilities as may be appropriate. The decision in Taylor provides a reminder of what is expected of parties giving disclosure. In its judgment the court set out a number of useful identifiers that demonstrate a party’s compliance with CPR Part 31 and indicate a proper engagement with the notion of transparency and cooperation. For example, the court stipulated that parties must identify the location of where documents have been searched. In relation to hard copy documents, if they have subsequently been transferred to a party’s solicitor, this means the original physical or geographical location of those documents. For electronic documents, the data sources that those documents have been obtained from should be identified. It is not sufficient to only refer to the “cloud” or “cloud facilities” as the source of electronic documents. Instead the cloud based storage should be identified by reference to the storage provider, the name and the user ID of the account holder. A list of custodians whose files have been searched, the date ranges of the search, the keywords used for searching electronic documents and the types of electronic documents available should all be specified by the disclosing party. Any third parties who have relevant documents under the disclosing party’s control should be identified. Additionally, the disclosing party must reveal whether and to what extent documents are irretrievable due to their loss or destruction. Further, though the EDQ is not a compulsory part of the disclosure process under Part 31, parties are now on notice that the court does consider it best practice to complete an EDQ and to share it with the opposing party. In Taylor, the court highlighted that if an EDQ

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had been completed early on then a lot of time and expense could have been avoided. Cooperation under the Pilot Scheme The introduction of the Pilot Scheme is intended to promote a wholesale change of culture in the approach to the disclosure process, with the aim of encouraging a proportionate approach. The decision in Taylor highlights that such change is needed to ensure cooperation without the intervention of the court. Whilst it is clear from the above that the notion of cooperation existed and still exists under the Part 31 regime, it is fair to say that the Pilot Scheme has fundamentally elevated its importance. It has done so in the following ways: •

PD51U para. 2.3 sets out, as a principle, that the court expects parties (and their representatives) to cooperate with each other and to assist the court to determine the scope of disclosure.

•

PD51U paras. 3.1(3) and (4) create express duties requiring parties to undertake any search for documents in a responsible and conscientious manner and to act honestly in relation to the process of giving disclosure.

•

PD51U para. 3.2(3) and (4) creates an express duty on the part of the legal representatives to liaise and cooperate with each other so as to promote the reliable, efficient and costeffective conduct of disclosure and to act honestly during the process of disclosure.

•

PD51U para. 20.2(3) expressly recognises the power of the court to sanction any party for failing to cooperate.

It is hoped, going forward, that the Pilot Scheme will prevent, or at least curtail, the level of court intervention demonstrated in the case of Taylor. However, if issues such as a lack of cooperation and transparency do arise under the Pilot Scheme it seems likely that

the court is ready to take a robust approach. It is, therefore, vital that parties engage with the principle that disclosure is a cooperative process. To not do so, would mean treading a very fine line given the court’s current approach on this issue.

Johnny Shearman is a Professional Support Lawyer at Signature Litigation, specialising in commercial litigation with experience in handling a broad spectrum of domestic and international disputes. Stephanie Eaton is a commercial litigation and international arbitration specialist at Signature Litigation, specialising in complex matters involving cross border elements. Signature Litigation is a specialised firm that focuses on regulatory investigations,

commercial litigation and arbitration. ---------------

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In addition to the above, the Pilot Scheme has introduced a new document, the Disclosure Review Document (the “DRD”), which replaces the use of the Disclosure Report and EDQ required under the Part 31 regime. This is a far more comprehensive document than its predecessors and, in all likelihood, if parties properly engage with its completion, many of the issues exposed by the decision in Taylor are unlikely to occur. For example, if the data mapping questionnaire in Section 2 of the DRD is properly completed this will arguably achieve the level of transparency the court clearly expects.

The Pilot Scheme commenced on 1 January 2019 in the Business and Property Courts and is governed by PD51U. 2 Form N265 3 The Disclosure Pilot Scheme will apply to the Business and Property Courts of London, Cardiff, Birmingham, Bristol, Leeds, Liverpool, Manchester and Newcastle. Unless otherwise ordered it will not apply to the following types of proceedings: Competition claims, Public procurement claims, the Intellectual Property and Enterprise Court, the Patents Court, the Admiralty Court, the Shorter and Flexible Trial Schemes and cases in the County Court. 1

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