Tuesday 29 November 2016

The evolution of disclosure - the High Court gives the green light to predictive coding

The evolution into forms of electronic disclosure in litigation has been acknowledged by the English High Court in the recent case of Pyrrho Investments Limited and another v MWB Property Limited and others [2016] EWHC 256 (Ch).


Predictive coding has been in operation in the United States for a number of years. It is a search technology that aims to help the review of extremely large quantities of documents that often exist in multi-million/billion pound litigation.


Often the number of documents to review in such cases can number into the millions. The technology allows lawyers familiar with the case to review a sample set of documents and then to provide keywords and themes which are entered into a predictive coding software program to allow it to predict the relevance of the remaining documents and narrow them accordingly for manual review.


This technology, although used this side of the pond, has not been officially sanctioned by the Courts. With Lord Justice Jackson's continued campaign to promote the proportionality of costs in litigation, now seems a ripe time to officially acknowledge a proven technology that reduces the need for time consuming and expensive 'per document' manual reviews of gargantuan volumes of disclosure.


In a serendipitous judgment, the Court decided in Pyrrho that the use of predictive coding could be used in this case - a case which contained 3.1 million documents to review. The Master considered US and Irish authorities and concluded that other jurisdictions had confirmed that predictive coding is appropriate and useful in certain cases and that it appeared as reliable as a full manual review (an argument adopted in defence but rejected by the Court).


Most importantly, the Master sang to Lord Justice Jackson's tune by announcing that predictive coding could indeed promote the proportionality of costs in large litigation by reducing the costs of disclosure reviews. The judgment will certainly be welcomed by junior lawyers who undertake such painstaking reviews!