At present the New South Wales, Queensland, South Australia and Western Australia Solicitors’ Rules require the return of documents to an opponent where there is inadvertent disclosure of confidential documents. The High Court recently commented that such a rule should not be necessary as “in the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications” (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199 (“ERA v Armstrong”))
In ERA v Armstrong a firm of solicitors, Norton Rose, gave general discovery on behalf of a client. This included 13 documents that the client intended to claim privilege over, but which were inadvertently listed as non-privileged and produced for inspection. The error appeared to result from a mistake in the process of reviewing and identifying documents in large-scale discovery. On receipt of the documents Marque Lawyers sent a letter to Norton Rose stating that there was an inconsistency in the discovery as some communications were disclosed, but others were the subject of a claim for privilege. Norton Rose wrote to Marque Lawyers stating that the production was a mistake and requested the documents be returned. Marque Lawyers refused to return the documents and said that any privilege attaching to them had been waived.
Marque Lawyers was successful in the New South Wales Supreme Court and Court of Appeal. On appeal the High Court of Australia unanimously ordered the return of the documents to Norton Rose. The High Court noted that times have changed since the decision of Slade LJ in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1044. and case management concerns, including specific case management powers in the rules (in ERA v Armstrong, the CPA NSW ss 56, 57, 58 and 59) now give courts the power to order the return of the documents to further the “overriding purpose”, that is, the just, quick and cheap resolution of the real issues in the dispute or proceedings (ERA v Armstrong, [56], [57]). The High Court considered the pursuit of satellite interlocutory proceedings, in circumstances where the discovery dispute was a minor issue and offered very little advantage to the recipient, would not fulfill the overriding purpose and is the kind of conduct to be avoided (ERA v Armstrong, [59]). Also, a mistake had been made and this fact was not disputed. As such, there was no question of waiver sufficient to be agitated, and it was necessary that the mistake be corrected and the parties continue with their preparation for trial (ERA v Armstrong, [60] - [63]).
Tuesday, May 13, 2014
Tuesday, March 4, 2014
Expert determinations and procedural fairness: Glenvill Projects v North North Melbourne [2013] VSC 717
In Glenvill Projects Pty Ltd & Ors v North North Melbourne Pty Ltd & Ors [2013] VSC 71 a claimant in an expert determination challenged an interlocutory decision of the expert to refuse the claimant leave to amend its claim. After discussing the nature and purpose of expert determination, and construing the contract between the parties and the expert, the Court held that the expert did not err.
Facts
A dispute between an owner of a residential building and the builder was referred to expert determination. The builder alleged that it was entitled to liquidated damages arising out of the failure of the owner to deliver the site to the builder with utility services connected.
Late in the expert determination process, and after exchange of submissions and affidavits, the builder sought to amend its claim, alleging that liquidated damages were also payable because of other matters unrelated to the failure to provide utility services. The expert’s terms of engagement with the parties to the building contract provided, among other things, that any dispute arising between the parties in respect of the expert determination process was to be determined by the expert.
The expert disallowed the proposed amendment because:
The builder submitted to the court that because the expert disallowed the proposed amendment, there was a manifest error within the meaning of the building contract because the amendment was within the scope of the expert determination referral, and also because the expert denied the builder a proper opportunity to put its case.
Decision
Vickery J analysed the law concerning the role of an expert. A summary of the analysis (at [45], [46], [56] and [57]) follows:
His Honour considered that the IAMA rules conferred the following important procedural processes to be determined by the expert:
Finally, Vickery J noted that the only remedies available to the builder would be contractual in nature, limited to discretionary declaratory relief. His Honour held that specific performance would not be appropriate as the process to be followed is left to the expert’s discretion within the broad parameters of the Expert’s terms of engagement. Further, His Honour noted that administrative law remedies would not be available for a contractual appointment.
Discussion
The decision is important because it highlights the distinction between arbitrations on the one hand and expert determination on the other. The arbitration process is a quasi-judicial process whereas the expert determination process is governed by the expert within the parameters of his terms of engagement.
In this matter the builder also contended that although the dispute resolution process prescribed in the building contract was described as an expert determination, it was in effect an arbitration in the sense that the expert was being asked to hear and resolve opposing contentions.
The Court construed the terms of the Expert’s terms of engagement and found that, irrespective of the expert’s role appearing to be similar to an arbitrator, the process was governed by the building contract and the Expert’s terms of engagement.
Facts
A dispute between an owner of a residential building and the builder was referred to expert determination. The builder alleged that it was entitled to liquidated damages arising out of the failure of the owner to deliver the site to the builder with utility services connected.
Late in the expert determination process, and after exchange of submissions and affidavits, the builder sought to amend its claim, alleging that liquidated damages were also payable because of other matters unrelated to the failure to provide utility services. The expert’s terms of engagement with the parties to the building contract provided, among other things, that any dispute arising between the parties in respect of the expert determination process was to be determined by the expert.
The expert disallowed the proposed amendment because:
- the owner refused consent to it;
- he considered it was not within the scope of the referral; and
- he considered that the process would need to be recommenced with fresh submissions.
- the decision of the expert is final and binding in the absence of manifest error; and
- the expert must decide the dispute acting as an expert and not an arbitrator.
The builder submitted to the court that because the expert disallowed the proposed amendment, there was a manifest error within the meaning of the building contract because the amendment was within the scope of the expert determination referral, and also because the expert denied the builder a proper opportunity to put its case.
Decision
Vickery J analysed the law concerning the role of an expert. A summary of the analysis (at [45], [46], [56] and [57]) follows:
- The activities of an expert are subject to little control of the court, save as to jurisdiction or departure from the mandate given.
- A referral to an expert usually arises because the parties desire a particular body of expert experience, learning, skill and judgment to be applied to the resolution of defined issues that may arise in the course of the relationship and need to be dealt with.
- The problem solving role is usually intended to be applied in a manner which is untrammelled by overly restrictive procedural considerations, so that the specialist skills and insights of the expert can be fully applied to the issues for resolution, in an expeditious and cost effective manner which is attended with an appropriate measure of finality.
- There is no obligation to give procedural fairness in the absence of an express contractual provision.
- Parties who by the terms of their contract agree to submit a question to an independent expert are bound by the determination of that expert acting honestly and in good faith.
- Mistake or error in the process of the determination will not invalidate a decision as long as it is made in accordance with the terms of the agreement.
His Honour considered that the IAMA rules conferred the following important procedural processes to be determined by the expert:
- defining the issues in dispute; and
- appropriate procedures for determination of those issues.
Finally, Vickery J noted that the only remedies available to the builder would be contractual in nature, limited to discretionary declaratory relief. His Honour held that specific performance would not be appropriate as the process to be followed is left to the expert’s discretion within the broad parameters of the Expert’s terms of engagement. Further, His Honour noted that administrative law remedies would not be available for a contractual appointment.
Discussion
The decision is important because it highlights the distinction between arbitrations on the one hand and expert determination on the other. The arbitration process is a quasi-judicial process whereas the expert determination process is governed by the expert within the parameters of his terms of engagement.
In this matter the builder also contended that although the dispute resolution process prescribed in the building contract was described as an expert determination, it was in effect an arbitration in the sense that the expert was being asked to hear and resolve opposing contentions.
The Court construed the terms of the Expert’s terms of engagement and found that, irrespective of the expert’s role appearing to be similar to an arbitrator, the process was governed by the building contract and the Expert’s terms of engagement.
Friday, February 14, 2014
Electronic court books, and running trials electronically
Happy new year to my readers! Apologies for being off-air since December 2013 - I returned from a month-long holiday in late January and I was straight into paperwork and trial work. I just finished my trial, and I found a moment to rest and write this post.
The trial was interesting because it is the first trial I have run without a hardcopy court book or hardcopy transcript. Instead I used the electronic versions on my iPad. I found using an electronic court book and transcript on my iPad to be a lot more efficient than having the hardcopy version. Rather than jumping between different folders and having to wade through tabs and pages in each, I was flicking through my electronic directory on my iPad.
I have described my methodology from start to finish below. Note that statements in [square brackets] denote a note for the purposes of this post. I suppose this post is the next phase of using electronic documents once the 'electronic brief' is delivered - click here for my guide on how to compile electronic briefs.
Electronic court book structure
A week before the trial I created a folder on my computer called '[Matter name] court book'. Then I created a series subfolders with the following names:
As the court book index was developed by me, my instructor and my opponent, I ensured that each document was in electronic PDF format, either by my instructor sending it to me in PDF, or me scanning it from my hardcopy brief. I copied each file into subfolder 2. The filename of each document started with the tab number in the court book index, and following that was a description of the document summarised from the court book index, including the date. As such, subfolder 2, when opened, was the court book index with each document ordered by its particular number in the court book index (since computers sort by name and number).
The following is an example of the structure:
Once each document was loaded into subfolder 2, I made them text searchable by batch OCR'ing them through Adobe Acrobat. This makes life easier in preparing questions and submissions, because it enables me to find the relevant passage I want from each document, I can highlight and annotate that passage, and I can also copy and paste the relevant passage into my submission.
I then revisited my preparation of the matter, and highlighted and bookmarked the relevant portion of each document using Abode Acrobat. I used bookmark codes similar to those which I referred to in my article on electronic briefs, here.
I then obtained all of the court book indexes, scanned them and added them into subfolder 1. I made these text searchable as well.
As aides were handed up to the Judge, at the end of that day I scanned them and added them into subfolder 3. I did the same for summaries (into subfolder 4), my instructor's notes (into subfolder 5) and loose documents that were produced by my opponent or my instructor (into subfolder 8).
Transcript annotation and bookmarking
After each day, I received the transcript from the transcription service in PDF and Word (DOC/DOCX) format. At the end of the day, or in the morning of the next day (depending on tiredness levels) I read the PDF version of the transcript on Adobe Acrobat, and each time I read something relevant I highlighted that part of the transcript, and bookmarked it. The great thing about highlighting transcript electronically is that the highlight also highlights the line numbers on the left hand side of the page, making it easy to refer to while on your feet, and in footnotes in written submissions.
Each electronic bookmark I created in the transcript recorded the witness name and whether that witness was giving evidence-in-chief (denoted 'X'), being cross-examined (denoted 'XX') or being re-examined (denoted 'ReX'). After this detail, I summarised in the bookmark what evidence was given. For example, the bookmarks looked something like the following [note - I have not summarised the actual evidence nor named witnesses - the information is fictional]:
The trial was interesting because it is the first trial I have run without a hardcopy court book or hardcopy transcript. Instead I used the electronic versions on my iPad. I found using an electronic court book and transcript on my iPad to be a lot more efficient than having the hardcopy version. Rather than jumping between different folders and having to wade through tabs and pages in each, I was flicking through my electronic directory on my iPad.
I have described my methodology from start to finish below. Note that statements in [square brackets] denote a note for the purposes of this post. I suppose this post is the next phase of using electronic documents once the 'electronic brief' is delivered - click here for my guide on how to compile electronic briefs.
Electronic court book structure
A week before the trial I created a folder on my computer called '[Matter name] court book'. Then I created a series subfolders with the following names:
- [Matter name] court book [folder]
- 1 indexes [subfolder]
- 2 tabbed documents in court book [subfolder]
- 3 aides [subfolder]
- 4 summaries [subfolder]
- 5 notes [subfolder]
- 6 transcript [subfolder]
- 7 annotated transcript [subfolder]
- 8 loose documents [subfolder]
I numbered each subfolder so that they could be ordered as I wanted them (otherwise they would be ordered alphabetically, in an order that may not have been intuitive to me).
Electronic court book documents
As the court book index was developed by me, my instructor and my opponent, I ensured that each document was in electronic PDF format, either by my instructor sending it to me in PDF, or me scanning it from my hardcopy brief. I copied each file into subfolder 2. The filename of each document started with the tab number in the court book index, and following that was a description of the document summarised from the court book index, including the date. As such, subfolder 2, when opened, was the court book index with each document ordered by its particular number in the court book index (since computers sort by name and number).
The following is an example of the structure:
- [Matter name] court book [folder]
- 1 indexes [subfolder]
- 2 tabbed documents in court book [subfolder]
- 1 statement of claim of the plaintiff dated [###]
- 2 defence of the defendant dated [###]
- 3 amended statement of claim of the plaintiff dated [###]
- ...
- 17 contract of sale dated [###]
- 18 amended plans dated [###]
- ...
- 50 expert report of Webster dated [###]
- 51 joint expert report dated [###]
- ...
- 3 aides [subfolder]
- ...
Once each document was loaded into subfolder 2, I made them text searchable by batch OCR'ing them through Adobe Acrobat. This makes life easier in preparing questions and submissions, because it enables me to find the relevant passage I want from each document, I can highlight and annotate that passage, and I can also copy and paste the relevant passage into my submission.
I then revisited my preparation of the matter, and highlighted and bookmarked the relevant portion of each document using Abode Acrobat. I used bookmark codes similar to those which I referred to in my article on electronic briefs, here.
I then obtained all of the court book indexes, scanned them and added them into subfolder 1. I made these text searchable as well.
As aides were handed up to the Judge, at the end of that day I scanned them and added them into subfolder 3. I did the same for summaries (into subfolder 4), my instructor's notes (into subfolder 5) and loose documents that were produced by my opponent or my instructor (into subfolder 8).
Transcript annotation and bookmarking
After each day, I received the transcript from the transcription service in PDF and Word (DOC/DOCX) format. At the end of the day, or in the morning of the next day (depending on tiredness levels) I read the PDF version of the transcript on Adobe Acrobat, and each time I read something relevant I highlighted that part of the transcript, and bookmarked it. The great thing about highlighting transcript electronically is that the highlight also highlights the line numbers on the left hand side of the page, making it easy to refer to while on your feet, and in footnotes in written submissions.
Each electronic bookmark I created in the transcript recorded the witness name and whether that witness was giving evidence-in-chief (denoted 'X'), being cross-examined (denoted 'XX') or being re-examined (denoted 'ReX'). After this detail, I summarised in the bookmark what evidence was given. For example, the bookmarks looked something like the following [note - I have not summarised the actual evidence nor named witnesses - the information is fictional]:
- X Smith - signed the contract on 1 Apr 2009
- ...
- X Smith - told the agent that she wanted an apartment with ocean views
- ...
- XX Teller - heard conversation with agent but didn't hear ref to ocean views
- ...
- XX Barnes - saw plaintiff talking to planner on 25 March 2009, didn't heard what saying
- ...
- ReX Barnes - saw plaintiff write notes of conversation
Each file of the transcript (representing 1 day of evidence) had around 20 to 40 bookmarks, each with a line describing the evidence given.
Efficiency in preparing submissions
As I was running the trial, I was working on my submissions. After I annotated the transcript each day, I worked on the submissions by typing in extracts of the transcript references where appropriate (that is, under each cause of action or issue set out in the written submissions). I found it easy doing this because I had already highlighted and bookmarked all of the relevant portions of the transcript. Also, footnoting the transcript was a simple task - each time I wanted to footnote something in the transcript, I found the bookmark in the transcript, clicked on it, and it took me to the relevant page, and the highlights showed the lines where the relevant evidence appeared.
A few times while writing the submissions I remembered a particular part of the evidence that I had not highlighted or bookmarked, and wanted to find in the transcript. I used Foxtrot Pro, particularly the neighbouring word search function, to find the relevant passage. Foxtrot Pro is an advanced indexing program for Mac - the equivalent of ISIS or DTSearch for PC.
Electronic court book and transcript on iPad, including examining witnesses and submissions
As I noted above, I had the court book folder on my iPad. I had it loaded onto the program, GoodReader, as a synced folder. Click here for my article on electronic briefs describing this syncing process with GoodReader Because the folder was synced with my computer (via Dropbox), each time I updated the court book on my computer (whether by annotating transcript, adding summaries, bookmarks to court book documents, etc) I pressed the 'Sync' button on GoodReader and it updated the folder on my iPad.
I found examining witnesses a very simple task as for each witness I had a 1-page paper running sheet which had on it the relevant court book references and a summary of the questions to be asked. Each time I needed to visit a particular document in the running sheet, I clicked on the document in subfolder 2 on GoodReader. If I needed to visit a particular part of that document (for instance, I had a 200 or so page contract which I had bookmarked and highlighted in parts) I clicked on the bookmark for that part and I was taken there straight away. I couldn't have my running sheet on my iPad, as I would be attempting to juggle a running sheet and court book documents on the one device. Perhaps another iPad for running sheets, submissions and notes...
I also found the ability to zoom on the iPad's screen to be very useful while on my feet. I was dealing with a contract with small terms, a document with disclaimers, and engineering drawings which were originally in A0 size. Whenever something was too small for the screen, I zoomed in on it.
As far as oral submissions went, referring to the transcript was a breeze since the annotated transcript was loaded onto my iPad and was entirely bookmarked and highlighted. Every time I needed to refer to a particular part of the evidence, I found the file for the relevant day (sorted in subfolder 6), found the bookmark summarising the evidence, and it pulled up the highlighted part of the transcript that I wanted.
Authorities
I had each authority which I relied on in PDF format, with the full name and citation as the filename. I created another folder, called '[matter name] folder of authorities' and created subfolders referring to each legal issue. For example:
- [matter name] folder of authorities [folder]
- apportionment [subfolder]
- estate agents act [subfolder]
- misleading or deceptive conduct [subfolder]
- disclaimers [subfolder]
- reliance [subfolder]
- contract [subfolder]
- damages [subfolder]
I then placed each authority into the particular folder representing the particular cause of action or issue the authority concerned. When annotating the authorities, I highlighted the relevant part of each authority and created a bookmark describing what that part was about. I then synced this folder onto GoodReader on my iPad. As such, referring to the relevant parts of the authorities during submissions was also simple.
As it turned out, the Judge wanted hardcopy versions of the authorities. So, I put these on a USB stick and gave them to my instructor to print and send to the court - with instructions to print without annotations, of course!
Throughout the trial the only pieces of paper I had in front of me which I referred to regularly were the witness running sheet and the exhibit list. Otherwise, everything I needed was in my iPad.
I thought it best to clarify at the end of this article that I have no financial interest in the products I refer to in this post. They are just the products that have worked best for me and my practice.
Thursday, December 12, 2013
Over-representation, voluminous material and costs proportionality: Yara Australia Pty Ltd & Ors v Oswal [2013] VSCA 337
The matter of Yara Australia Pty Ltd & Ors v Oswal [2013] VSCA 337 was a unique step taken by the Court of Appeal, in which the Court of Appeal asked the parties to address the Court on the question of whether an unsuccessful leave to appeal application involved the breach by any party of its overarching obligations under the Civil Procedure Act 2010 (Vic) (the 'Act'). The concern of the Court of Appeal was whether, during a leave to appeal application, there was over-representation of a party by counsel and whether the material produced on the hearing of the application for leave to appeal was unnecessary or excessive.
s29 power to make orders on contravention of overarching obligations
That is, the Court of Appeal was concerned with whether the overarching obligation in s24 of the Act was breached, which provides as follows:
A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to—The Court sought submissions under s29(2)(b) of the Act, which allows a court to make certain orders on its own motion in the event that it finds a person has contravened the overarching obligations in the Act.
(a) the complexity or importance of the issues in dispute; and
(b) the amount in dispute.
Background and summary of findings
By way of summary, the Court of Appeal noted the following relevant facts:
By way of summary, the Court of Appeal noted the following relevant facts:
- The leave to appeal application was from a decision by Whelan J to set aside orders of Efthim AsJ that the respondents provide security for costs of the applicants in the proceedings.
- The amount of security for costs sought for each party was between $20,000 and $80,000.
- There were five senior counsel, six junior counsel and five firms of solicitors representing the parties. One group of parties had two senior counsel and one junior acting for them; another had two juniors; and another had senior and junior counsel.
- The Court was provided with six application folders comprising submissions, affidavit material, transcript and authorities running to over 2,700 pages. The affidavits filed by the applicants contained many unnecessary documents, many of which were not referred to in the submissions.
The Court of Appeal considered that because of the complexity and expense of the broader litigation, including the ongoing legal costs for preparing the litigation and a damages claim that could run to hundreds of millions of dollars, it was appropriate that each party be represented by the counsel that were engaged (at [39]).
However, the Court of Appeal considered that the applicants breached the overarching obligation in s24 because of the filing of voluminous material (at [53]). The Court of Appeal summed up the mischief that the Act is seeking to address, as follows:
52 The Act’s objective is the reform of the culture of unnecessary expenditure on civil litigation. Parliament has intended that this reform can only be achieved by holding parties to account for undesirable civil litigation practices that are unfortunately too common. The court was burdened with excessive material. The applicants and the respondents were burdened with the costs of that material. There has been a breach of the overarching obligation to ensure the costs are reasonable and proportionate by including in the application books voluminous material that was extraneous or repetitious and excessive.The end result in Yara was that the Court of Appeal took the contravention into account under s29 and made the following orders, on its own motion, amongst others:
- each applicant was ordered to pay the respondent's costs;
- each applicant's solicitor was ordered to indemnify the applicant 50% of the respondent's costs incurred as a consequence of the excessive content of the application books; and
- each applicant's solicitor was disallowed recovery from the applicant of 50% of the costs relating to the preparation of the application books and incidental costs.
s24 requirement for costs to be reasonable and proportionate
The discussion about s24 focused on the obligation of legal practitioners to ensure that costs are reasonable and proportionate. The Court of Appeal said that this overrides the legal practitioner's duty to the client such that the client's instructions would not relieve the legal practitioner of this overarching obligation (at [14] to [15]):
The discussion about s24 focused on the obligation of legal practitioners to ensure that costs are reasonable and proportionate. The Court of Appeal said that this overrides the legal practitioner's duty to the client such that the client's instructions would not relieve the legal practitioner of this overarching obligation (at [14] to [15]):
14 Each party and their solicitor and counsel have an obligation to comply with the overarching obligation. Whether any of them have breached that overarching obligation is to be determined by an objective evaluation of their conduct having regard to the issues and the amount in dispute in the proceeding. The legal practitioners’ duty is non-delegable. The obligation will override their duty to their client where the discharge of that duty would be inconsistent with the overarching obligation.[19] The legal practitioner will not be relieved of this overarching responsibility because of the instructions of their client.[20]
15 Legal practitioners, whether solicitor or counsel, involved in the preparation of pleadings, affidavits or other materials that are to be used in the proceeding or who provide advice as to such matters, have individual responsibilities to comply with the overarching obligation. Both solicitor and counsel also have an overarching responsibility with respect to the extent and level of their client’s representation. Each must ensure that, having regard to the issues, the extent and level of representation proposed is reasonable and proportionate. Advice or instructions given or received by legal practitioners, and instructions given by the client may inform but will not be determinative of the question whether, viewed objectively, there has been a breach of the obligation.
That is, if the client insists on senior counsel, or a number of counsel, in circumstances where it might not be reasonable because of the nature, complexity or quantum of the dispute, the legal practitioner is still on the hook despite those instructions.
s29 power to make orders on contravention of overarching obligations
The Court of Appeal also focused on s29, which gives the court power to sanction legal practitioners and parties for contravening their overarching obligations. The Court of Appeal noted that the power is broader and more flexible than that in R62.23 and the inherent jurisdiction of the Court, which are designed to compensate for negligence or incompetence ([18]).
The Court of Appeal said that s29 gives a degree of flexibility in sanctioning parties or legal practitioners because of a breach of the overarching obligations, and the sanctions are not just limited to incompetence or improper conduct, but failure to use reasonable endeavours to comply with the overarching obligations ([20]):
The Court of Appeal said that s29 gives a degree of flexibility in sanctioning parties or legal practitioners because of a breach of the overarching obligations, and the sanctions are not just limited to incompetence or improper conduct, but failure to use reasonable endeavours to comply with the overarching obligations ([20]):
20 The Court’s powers under s 29 of the Act include the power to sanction legal practitioners and parties for a contravention of their obligations as the heading to Part 2.4 indicates.[30] In our view, these powers are intended to make all those involved in the conduct of litigation — parties and practitioners — accountable for the just, efficient, timely and cost effective resolution of disputes. Through them, Parliament has given the courts flexible means of distributing the cost burden upon and across those who fail to comply with their overarching obligations. A sanction which redistributes that burden may have the effect of compensating a party. It may take the form of a costs order against a practitioner, an order that requires the practitioner to share the burden of a costs order made against their client or an order which deprives the practitioner of costs to which they would otherwise be entitled. The Act is clearly designed to influence the culture of litigation through the imposition of sanctions on those who do not observe their obligations. Moreover, the power to sanction is not confined to cases of incompetence or improper conduct by a legal practitioner. Where there is a failure by the practitioner, whether solicitor or counsel, to use reasonable endeavours to comply with the overarching obligations, it will be no answer that the practitioner acted upon the explicit and informed instructions of the client. A sanction may be imposed where, contrary to s 13(3)(b), the legal practitioner acts on the instruction of his or her client in breach of the overarching obligations.
As such, the Court of Appeal regarded ss28 and 29 as giving the Court broad disciplinary powers which may be reflected in the costs orders made ([21]).
The Court of Appeal also noted that s29 has resulted in courts at first instance taking a more pro-active and innovative approach in achieving its objects, particularly because judicial officers must actively hold the parties to account ([24] and [26]):
26 The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.
The Court of Appeal also noted the under-utilisation of these provisions by the courts on their own motion, and considered whether there was judicial disinclination to do this because of a fear that an inquiry about a potential breach might be time-consuming and require the introduction of additional material. The Court of Appeal noted that such fears cannot relieve judges of their responsibilities, and in any event a judge at first instance would not be expected to undertake a substantial inquiry particularly when most of what would be required is a brief submission on costs ([27]):
27 Yet as we have observed, sanctions imposed for a breach of any overarching provisions have been a rarity at first instance. When no party invites the court to determine whether there has been a breach of the Act, there may be a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to a potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities. But we would not wish it to be thought that a judicial officer at first instance must undertake a substantial inquiry when considering whether there has been a contravention of the Act. As the sanction for a breach will usually lie in an appropriate costs order, a judge may at the conclusion of the reasons for judgment immediately invite oral submissions as to why there should not be a finding that the Act was contravened. The judge may in a relatively brief way deal with that issue in providing succinct reasons for a finding that there has been a breach of the Act and how that finding affects the orders for costs that are to be pronounced.
Summary
Yara is an important case because it has considered the core case management provisions in the Act. It has signalled that the purpose of s28 and 29 is both punitive and compensatory, and that parties and practitioners who do not act reasonably and who do not comply with their overarching obligations ought to beware, as a court may be obliged, because of circumstances that arise during a case, to undertake its own inquiry into whether or not there has been a breach of the Act.
Also, the Court of Appeal noted that legal practitioners cannot rely on their client's instructions as an excuse for a breach of their overarching obligations, and must ensure they also comply. This applies to both the seniority of counsel and number of lawyers engaged on the matter, and the volume and relevance of documentation before the Court. The legal practitioners remain on the hook for these matters despite the client's instructions.
Also, the Court of Appeal noted that legal practitioners cannot rely on their client's instructions as an excuse for a breach of their overarching obligations, and must ensure they also comply. This applies to both the seniority of counsel and number of lawyers engaged on the matter, and the volume and relevance of documentation before the Court. The legal practitioners remain on the hook for these matters despite the client's instructions.
Monday, November 18, 2013
Electronic briefs to counsel - Downie's step-by-step guide
I was reading a terrific post by Mark McKillop called 'A tale of a brief in 29 parts – tips for junior lawyers briefing counsel in the email age. Mark's post discusses what to put in a brief to counsel and why. He focuses on the provision of a hardcopy brief and perhaps an email to counsel, in urgent circumstances, of the key documents in the brief. I have experienced the horror of a brief emailed in 29 or so separate parts and it almost always results in loss of time and increased expense for the client, and it occasionally results in overlooked or omitted documents. That is, it should be avoided.
I agree with the comments Mark makes in his post; however, I am of the view that a properly organised electronic brief can be a lot more effective than a hardcopy brief, and can be delivered and updated a lot quicker.
So how is it done? Here's my step-by-step guide.
What equipment and software do you need?
In order to make life easier with electronic briefs from chambers or the office to the court room you need 6 things: a computer, a scanner, an iPad (or a like tablet device), Goodreader (iPad app, or an equivalent tablet PDF annotating app), Adobe Acrobat (PDF computer program) and a cloud based storage service, like Dropbox. Most of these (apart from a cloud service and Goodreader) are expensive. However they are cheap in the long run when you consider the time, paper and cost saved.
I say time, paper and cost saved because:
Step 1 - scanning the files and creating PDF documents
Let's start with the computer, the scanner and Adobe Acrobat, as this is the file creation process. First, ensure all of the documents relevant to the brief are PDF [portable document format] files, apart from any drafts that you want counsel to settle (which should be in Microsoft Word format - .doc/.docx).
Ensuring all files are in PDF can be done by saving Microsoft Word format documents (.doc/.docx) as PDF files (a function that Microsoft word supports with Adobe Acrobat), or (in most cases) by scanning all of the original documents in the instructor's possession using a scanner. It is often best to scan each individual document as a separate PDF file, although this isn't a golden rule since cumbersome files, such as affidavits and contracts, can be bookmarked (see further below).
Step 2 - renaming the scanned or saved PDF electronic files
Once you have all of the documents in PDF format, then you need to change the name of each of the scanned electronic files so they make sense. My system is to give them a reverse date order, followed by a description of the document that is in the file, so as to ensure that the files are date ordered (even though the computer is sorting by name). An example of this is as follows:
Step 3 - creating the electronic folders
So once you have scanned all of the documents and renamed the files, you have a group of electronic files in a folder, such as a generic 'scans' folder. The next process is to create electronic folders in the same way a brief might be structured physically. For instance, the following is an example folder structure for a brief (my descriptive notes for the purpose of this post are placed in [square brackets] next to the folder or subfolder name):
The file index.docx is an index of each document to be placed within each folder, for ease of reference.
I have numbered each folder in order to have them structured in the order I want them. Like reverse date ordering, because name sorting is the default, folders that are numbered will be sorted by the number that precedes the folder's descriptive name.
Step 4 - sorting the electronic files into folders
Once you have the files renamed, you then sort them into the electronic folder according to their description. As such, the above documents get sorted as follows:
In order to work out where each document is located in each folder, it is best to create an index. This is basically the same as any hardcopy brief index, except it is modified for electronic folders. An index may be created by using Microsoft Word to create a table based index, with the following column names:
Step 6 - make all of the files searchable
The next step is to OCR [optical character recognition] all of the electronic PDF files so that they have recognised text and are therefore searchable. Scanned PDF files are usually saved as an image, rather than as text, and as such each PDF file needs to have its image converted into text for the text to be recognisable. Saved Microsoft Word documents will almost always be OCR'd.
OCR'ing (that is, converting a PDF from image to text) is useful for, amongst other things, annotating the subject document, drafting affidavits, preparing submissions, and searching for relevant issues. For instance, where an electronic brief has, say, 2000 pages, if each page is in searchable PDF format then locating particular words or a particular phrase is easy. Also, by using a sophisticated search program such as Foxtrot Pro, specific strings and combinations of words can be searched for. Further, text may be readily copied and pasted from searchable PDF documents into affidavits and submissions.
A program such as Adobe Acrobat will allow you to OCR PDF files. I am informed by my colleagues that there are free programs available which allow you to convert an imaged PDF into a text recognised PDF. However, I find that Adobe Acrobat is ideal as you can run batch OCR'ing on folders so as to convert multiple files at the one time, and then use the same program to manipulate the file with bookmarks and annotations (more on these below).
Step 7 - create electronic bookmarks
Once each file is OCR'd, go through each document on your screen and bookmark each document within the file. For instance, if within the brief there is an affidavit with exhibits, you might want to bookmark the files as follows:
Here's an example of a bookmarked document, opened in Adobe Acrobat.
The bookmarks are on the left hand side, and I created them using Adobe Acrobat. In Court I like to read and refer to the electronic version rather than the paper version of a document because I find it a lot easier to navigate the electronic bookmarks than physical tabs and post-it notes.
Step 8 - deliver the brief by sharing on a cloud service, like Dropbox
At this stage the files are named, bookmarked and sorted into organised and named folders. Once the memorandum to counsel is drafted and in PDF format, the electronic brief is ready to be delivered!
So how do you deliver it?
The chances are that a folder containing 50+ files will exceed the maximum size allowed for delivery via email. If the brief is small enough, it is possible to send it via email; however there are disadvantages with sending via email which you do not have with a cloud service such as Dropbox. The main benefit of a cloud service over email is that the instructor's folder structure and counsel's folder structure, if shared by a cloud service, will be synchronised and contain consistent content on an ongoing basis (assuming both instructor and counsel are online, either via Wi-Fi, or a wireless network). Email only sends the folders and files in the state they were in at the date they were sent, so any updates to the folder and files by one party after the email delivering the brief is sent will not be synchronised and updated on the other party's computer. Updates via synchronisation are especially important where court documents are being produced at a rate of knots, or discovery/instructions are being drip-fed.
Dropbox and cloud services are, in essence, private hard drives stored externally to your computer and accessible online. As such, if you subscribe to a cloud service you will have a folder on your computer which allows you to drag and drop content into that cloud service. To place the electronic brief into a cloud service, all you need to do is drag and drop the root folder into the cloud service, and this will create a copy of the brief externally to your computer in the cloud.
Once this is done, most if not all cloud services allow you to 'share' the folders in the cloud by sending a link of that folder to whomever you want to share it with. Otherwise (subject to the specific terms of service of the cloud service you subscribe to) the content in the cloud is only accessible by you via a password. Those that you share the folder with may include counsel, the client and other solicitors in the firm, as long as they all subscribe to the same cloud service. Once the link is sent by email, counsel opens it up and the brief is with counsel in counsel's cloud service and on counsel's computer for counsel to read, amend and add to as he or she wishes.
Side issue - confidentiality and legal professional privilege in the cloud
Some lawyers query whether a cloud service is sufficiently secure to store documents that might be confidential and/or privileged. It is up to the instructor and counsel to determine whether the particular cloud service is secure enough by reading its terms of use. Click here for the Dropbox terms of service. Consent to use a cloud service could be obtained by including a written consent in the costs agreement between the instructor and client, and between counsel and the instructor.
If there is a particularly sensitive document in the brief, then this doesn't have to be placed in the cloud, but instead could be sent via email. That is, there will be a solution to the issue of confidentiality and it ought not stand in the way of briefing and sharing documents electronically. In saying this I do speak from the point of view of a commercial practitioner. Most if not all of the documents I have in a particular matter, other than documents that are subject to legal professional privilege, would be common between the parties. In any event, privileged documents can be separated into a specific subfolder in the electronic brief, or sent via email instead.
Step 9 - portability, including using the brief in court
A great outcome of this process is that counsel and the instructor have the electronic brief available for use on an iPad by using GoodReader, alternatively Documents by Readdle. I use Goodreader because I am used to it, and it has great functionality. I previously posted a review on Goodreader - click here to read it.
Goodreader, like Adobe Acrobat on a computer, allows the user to go through folders, read documents (particularly PDF documents), and annotate those documents as counsel pleases. The annotation functionality is similar to hardcopy annotation - you can put notes on each page, highlight sections, and bookmark each page. The original PDF document doesn't have to be adulterated since Goodreader asks the user whether the user wishes to create a copy document for annotation.
Once the folder is on the cloud, counsel can connect to the cloud service and 'synchronise' the folder in Goodreader. What that means is that the brief is downloaded to counsel's iPad and, whenever a document is updated and synchronised by counsel or by the instructor on their computers or on their iPads, the brief is updated on all users' iPads and computers. Goodreader doesn't automatically synchronise - one has to select to synchronise for this to occur. This is convenient to avoid corrupted files and synchronisation errors where, for instance, one user is reading a file while another user is editing or updating it.
Here's an image of the above electronic brief synchronised to Goodreader on my iPad.
So that's about it. This is how I prefer my briefs to be and it is a process I often undertake to convert my hardcopy briefs into electronic briefs.
That doesn't mean I don't like hardcopy. I just prefer the convenience of electronic briefs, particularly when I sit at the bar table in front of a Judge and look at what comprises my brief. At that point I'm either staring at an iPad with a perfectly organised folder of annotated and sorted documents which I can move through with ease, or I'm staring at a huge pile of 5 or so lever arch folders which have post it notes in them and highlights throughout.
Which would you prefer?
I agree with the comments Mark makes in his post; however, I am of the view that a properly organised electronic brief can be a lot more effective than a hardcopy brief, and can be delivered and updated a lot quicker.
So how is it done? Here's my step-by-step guide.
What equipment and software do you need?
In order to make life easier with electronic briefs from chambers or the office to the court room you need 6 things: a computer, a scanner, an iPad (or a like tablet device), Goodreader (iPad app, or an equivalent tablet PDF annotating app), Adobe Acrobat (PDF computer program) and a cloud based storage service, like Dropbox. Most of these (apart from a cloud service and Goodreader) are expensive. However they are cheap in the long run when you consider the time, paper and cost saved.
I say time, paper and cost saved because:
- instead of photocopying each page and paying for each page of paper, you scan one page and the resulting file is used by all working on the matter;
- instead of physically compiling each piece of paper into folders, all you do is drag and drop each electronic file (containing all pages referred to) into electronic folders; and
- instead of delivering large numbers of folders to multiple people, all you do is email the folders containing the files, or better yet send a link to the cloud service you are storing the brief in.
Step 1 - scanning the files and creating PDF documents
Let's start with the computer, the scanner and Adobe Acrobat, as this is the file creation process. First, ensure all of the documents relevant to the brief are PDF [portable document format] files, apart from any drafts that you want counsel to settle (which should be in Microsoft Word format - .doc/.docx).
Ensuring all files are in PDF can be done by saving Microsoft Word format documents (.doc/.docx) as PDF files (a function that Microsoft word supports with Adobe Acrobat), or (in most cases) by scanning all of the original documents in the instructor's possession using a scanner. It is often best to scan each individual document as a separate PDF file, although this isn't a golden rule since cumbersome files, such as affidavits and contracts, can be bookmarked (see further below).
Step 2 - renaming the scanned or saved PDF electronic files
Once you have all of the documents in PDF format, then you need to change the name of each of the scanned electronic files so they make sense. My system is to give them a reverse date order, followed by a description of the document that is in the file, so as to ensure that the files are date ordered (even though the computer is sorting by name). An example of this is as follows:
- 2013-09-20 SOC McGee
- 2013-10-01 Defence Meyer
- 2013-10-13 affidavit McGee
- 2013-10-20 affidavit Meyer
- 2013-10-21 submissions McGee
- 2013-10-22 supplementary submissions Meyer
- 2013-11-01 bundle of discovered documents Meyer
- 2013-11-10 submissions Meyer
- 2013-11-13 expert report O'Grady
- 2013-11-14 expert report Schleck
- 2013-11-14 court order
So once you have scanned all of the documents and renamed the files, you have a group of electronic files in a folder, such as a generic 'scans' folder. The next process is to create electronic folders in the same way a brief might be structured physically. For instance, the following is an example folder structure for a brief (my descriptive notes for the purpose of this post are placed in [square brackets] next to the folder or subfolder name):
- McGee v Meyer brief [root folder]
- 1 Pleadings [subfolder]
- 2 Expert reports [subfolder]
- 3 Submissions [subfolder]
- 4 Affidavits [subfolder]
- 5 Witness statements [subfolder]
- 6 Plaintiff's discovery [subfolder]
- 7 Defendant's discovery [subfolder]
- 8 Court orders [subfolder]
- Index.docx
- 9 Transcript [subfolder]
- 10 Offers [subfolder]
- 11 Solicitor correspondence [subfolder]
- 12 Memoranda to counsel [subfolder]
The file index.docx is an index of each document to be placed within each folder, for ease of reference.
I have numbered each folder in order to have them structured in the order I want them. Like reverse date ordering, because name sorting is the default, folders that are numbered will be sorted by the number that precedes the folder's descriptive name.
Step 4 - sorting the electronic files into folders
Once you have the files renamed, you then sort them into the electronic folder according to their description. As such, the above documents get sorted as follows:
- McGee v Meyer brief [root folder]
- 1 Pleadings [subfolder]
- 2013-09-20 SOC McGee [file]
- 2013-10-01 Defence Meyer [file]
- 2 Expert reports [subfolder]
- 2013-11-13 expert report O'Grady [file]
- 2013-11-14 expert report Schleck [file]
- 3 Submissions [subfolder]
- 2013-10-21 submissions McGee [file]
- 2013-10-22 supplementary submissions Jones [file]
- 2013-11-10 submissions Meyer [file]
- 4 Affidavits [subfolder]
- 2013-10-13 affidavit McGee [file]
- 2013-10-20 affidavit Meyer [file]
- 5 Witness statements [subfolder]
- 6 Plaintiff's discovery [subfolder]
- 2013-11-01 bundle of discovered documents McGee [file]
- 7 Defendant's discovery [subfolder]
- 2013-11-01 bundle of discovered documents Meyer [file]
- 8 Court orders [subfolder]
- 2013-11-14 court order [file]
- Index.docx [file]
In order to work out where each document is located in each folder, it is best to create an index. This is basically the same as any hardcopy brief index, except it is modified for electronic folders. An index may be created by using Microsoft Word to create a table based index, with the following column names:
- folder number
- folder name
- filename
- document description
- author
- provenance
- relevant
- privileged
- issue
- document note
Step 6 - make all of the files searchable
The next step is to OCR [optical character recognition] all of the electronic PDF files so that they have recognised text and are therefore searchable. Scanned PDF files are usually saved as an image, rather than as text, and as such each PDF file needs to have its image converted into text for the text to be recognisable. Saved Microsoft Word documents will almost always be OCR'd.
OCR'ing (that is, converting a PDF from image to text) is useful for, amongst other things, annotating the subject document, drafting affidavits, preparing submissions, and searching for relevant issues. For instance, where an electronic brief has, say, 2000 pages, if each page is in searchable PDF format then locating particular words or a particular phrase is easy. Also, by using a sophisticated search program such as Foxtrot Pro, specific strings and combinations of words can be searched for. Further, text may be readily copied and pasted from searchable PDF documents into affidavits and submissions.
A program such as Adobe Acrobat will allow you to OCR PDF files. I am informed by my colleagues that there are free programs available which allow you to convert an imaged PDF into a text recognised PDF. However, I find that Adobe Acrobat is ideal as you can run batch OCR'ing on folders so as to convert multiple files at the one time, and then use the same program to manipulate the file with bookmarks and annotations (more on these below).
Step 7 - create electronic bookmarks
Once each file is OCR'd, go through each document on your screen and bookmark each document within the file. For instance, if within the brief there is an affidavit with exhibits, you might want to bookmark the files as follows:
- Page 1 of the affidavit - bookmark as 'affidavit McGee'.
- Exhibit PM-1, which is a contract dated 12 May 2011 - bookmark as 'PM-1 contract 12 May 2011'.
- Exhibit PM-2, which is a letter from McGee to Meyer dated 13 May 2011 - bookmark as 'PM-2 letter McGee 13 May 2011'.
- Exhibit PM-3, which is a caveat dated 20 May 2011 - bookmark as 'PM-3 caveat 20 May 2011'.
- And so on.
Here's an example of a bookmarked document, opened in Adobe Acrobat.
The bookmarks are on the left hand side, and I created them using Adobe Acrobat. In Court I like to read and refer to the electronic version rather than the paper version of a document because I find it a lot easier to navigate the electronic bookmarks than physical tabs and post-it notes.
Step 8 - deliver the brief by sharing on a cloud service, like Dropbox
At this stage the files are named, bookmarked and sorted into organised and named folders. Once the memorandum to counsel is drafted and in PDF format, the electronic brief is ready to be delivered!
So how do you deliver it?
The chances are that a folder containing 50+ files will exceed the maximum size allowed for delivery via email. If the brief is small enough, it is possible to send it via email; however there are disadvantages with sending via email which you do not have with a cloud service such as Dropbox. The main benefit of a cloud service over email is that the instructor's folder structure and counsel's folder structure, if shared by a cloud service, will be synchronised and contain consistent content on an ongoing basis (assuming both instructor and counsel are online, either via Wi-Fi, or a wireless network). Email only sends the folders and files in the state they were in at the date they were sent, so any updates to the folder and files by one party after the email delivering the brief is sent will not be synchronised and updated on the other party's computer. Updates via synchronisation are especially important where court documents are being produced at a rate of knots, or discovery/instructions are being drip-fed.
Dropbox and cloud services are, in essence, private hard drives stored externally to your computer and accessible online. As such, if you subscribe to a cloud service you will have a folder on your computer which allows you to drag and drop content into that cloud service. To place the electronic brief into a cloud service, all you need to do is drag and drop the root folder into the cloud service, and this will create a copy of the brief externally to your computer in the cloud.
Once this is done, most if not all cloud services allow you to 'share' the folders in the cloud by sending a link of that folder to whomever you want to share it with. Otherwise (subject to the specific terms of service of the cloud service you subscribe to) the content in the cloud is only accessible by you via a password. Those that you share the folder with may include counsel, the client and other solicitors in the firm, as long as they all subscribe to the same cloud service. Once the link is sent by email, counsel opens it up and the brief is with counsel in counsel's cloud service and on counsel's computer for counsel to read, amend and add to as he or she wishes.
Side issue - confidentiality and legal professional privilege in the cloud
Some lawyers query whether a cloud service is sufficiently secure to store documents that might be confidential and/or privileged. It is up to the instructor and counsel to determine whether the particular cloud service is secure enough by reading its terms of use. Click here for the Dropbox terms of service. Consent to use a cloud service could be obtained by including a written consent in the costs agreement between the instructor and client, and between counsel and the instructor.
If there is a particularly sensitive document in the brief, then this doesn't have to be placed in the cloud, but instead could be sent via email. That is, there will be a solution to the issue of confidentiality and it ought not stand in the way of briefing and sharing documents electronically. In saying this I do speak from the point of view of a commercial practitioner. Most if not all of the documents I have in a particular matter, other than documents that are subject to legal professional privilege, would be common between the parties. In any event, privileged documents can be separated into a specific subfolder in the electronic brief, or sent via email instead.
Step 9 - portability, including using the brief in court
A great outcome of this process is that counsel and the instructor have the electronic brief available for use on an iPad by using GoodReader, alternatively Documents by Readdle. I use Goodreader because I am used to it, and it has great functionality. I previously posted a review on Goodreader - click here to read it.
Goodreader, like Adobe Acrobat on a computer, allows the user to go through folders, read documents (particularly PDF documents), and annotate those documents as counsel pleases. The annotation functionality is similar to hardcopy annotation - you can put notes on each page, highlight sections, and bookmark each page. The original PDF document doesn't have to be adulterated since Goodreader asks the user whether the user wishes to create a copy document for annotation.
Once the folder is on the cloud, counsel can connect to the cloud service and 'synchronise' the folder in Goodreader. What that means is that the brief is downloaded to counsel's iPad and, whenever a document is updated and synchronised by counsel or by the instructor on their computers or on their iPads, the brief is updated on all users' iPads and computers. Goodreader doesn't automatically synchronise - one has to select to synchronise for this to occur. This is convenient to avoid corrupted files and synchronisation errors where, for instance, one user is reading a file while another user is editing or updating it.
Here's an image of the above electronic brief synchronised to Goodreader on my iPad.
So that's about it. This is how I prefer my briefs to be and it is a process I often undertake to convert my hardcopy briefs into electronic briefs.
That doesn't mean I don't like hardcopy. I just prefer the convenience of electronic briefs, particularly when I sit at the bar table in front of a Judge and look at what comprises my brief. At that point I'm either staring at an iPad with a perfectly organised folder of annotated and sorted documents which I can move through with ease, or I'm staring at a huge pile of 5 or so lever arch folders which have post it notes in them and highlights throughout.
Which would you prefer?
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