It appears that the legal profession is still not on top of electronic disclosure. The latest example appears to be Phaestos Ltd. & Another –v- Ho.
There have been plentiful judgments in this case this year (7 at the last count) and now the latest shows why. There has evidently been a big dispute about disclosure of documents as well as the particularisation of the Claimant’s case.
In the latest judgment the court evidently lost its patience with the Claimants on their e-disclosure attempts, saying:
It is unnecessary to review the remainder of the period up to date because one can only form the view in logic that the lack of activity on the part of the Claimants … can be explained only by gross carelessness or a reckless disregard or deliberate flouting of the Court orders: I can not decide which.
Looking from the outside it is always difficult to see the true causes, but disclosure is an area where solicitors are expected to be proactive (they should not just “take their client’s instructions”).
As long ago as 1968 the courts made it clear what was expected:
In preparing for trial solicitors bear a great responsibility and a heavy burden. Not the least of these burdens is that of discovery. This is of especial weight in a complex case of passing off such as this was. Many litigants (and not least corporate litigants) have little appreciation of the scope of discovery, and the duty of making full disclosure.
Rockwell Machine Tool -v- E. P. Barrus (Concessionaires) Ltd.
And later the Court of Appeal in 2003:
… it is the solicitor who is in charge of deciding what documents are or are not to be disclosed and he cannot hide behind his client's instructions. If he cannot persuade his client to comply with what is right in the circumstances, the solicitor must withdraw from the case.
Eric Albert Wagstaff -v- Florence Gladys Colls
The wake-up calls on e-disclosure were Hedrich -v- (1) Standard Bank London (2) Zimmers and Digicel -v- Cable & Wireless but there have been several faux pas from solicitors since. Phaestos is apparently the latest.