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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Brown v BCA Trading Ltd & Ors  EWHC 1464 (Ch) (17 May 2016)
Cite as:  EWHC 1464 (Ch)
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In The Matter Of TRADEOUTS LIMITED
And In The Matter Of THE INSOLVENCY ACT 1986
B e f o r e :
| DAVID BROWN
- and –
|(1) BCA TRADING LIMITED
(2) ROBERT FELTHAM
(3) TRADEOUTS LIMITED
8th Floor, 165 Fleet Street, London, EC4A 2DY
Tel No: 0207 404 1400; Fax No: 020 7404 1424
Web: www.DTIGlobal.com; Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
MR S HOSSAIN QC (instructed by Berwin Leighton Paisner LLP) appeared on behalf of the Respondents
Crown Copyright ©
MR REGISTRAR JONES:
"(1) Experience in other jurisdictions, whilst so far limited, has been that predictive coding software can be useful in appropriate cases.
(2) There is no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than, say, manual review alone or keyword searches and manual review combined, and indeed there is some evidence (referred to in the US and Irish cases to which I referred above) to the contrary.
(3) Moreover, there will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds, of lower-grade fee- earners, each seeking independently to apply the relevant criteria in relation to individual documents.
(4) There is nothing in the CPR or Practice Directions to prohibit the use of such software.
(5) The number of electronic documents which must be considered for relevance and possible disclosure in the present case is huge, over 3 million.
(6) The cost of manually searching these documents would be enormous, amounting to several million pounds at least. In my judgment, therefore, a full manual review of each document would be "unreasonable" within paragraph 25 of Practice Direction B to Part 31, at least where a suitable automated alternative exists at lower cost.
(7) The costs of using predictive coding software would depend on various factors, including importantly whether the number of documents is reduced by keyword searches, but the estimates given in this case vary between £181,988 plus monthly hosting costs of £15,717, to £469,049 plus monthly hosting costs of£20,820. This is obviously far less expensive than the full manual alternative, though of course there may be additional costs if manual reviews still need to be carried out when the software has done its best.
(8) The 'value' of the claims made in this litigation is in the tens of millions of pounds. In my judgment the estimated costs of using the software are proportionate.
(9) The trial in the present case is not until June 2017, so there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.
(10) The parties have agreed on the use of the software, and also how to use it, subject only to the approval of the Court.
There were no factors of any weight pointing in the opposite direction."
(After further submissions)
Judgment on Costs Budget
"Rule 3.15(2) provides that, if the costs management order ("CMO") is made, the court will then record the extent to which each party's budget is agreed or is approved by the court. Accordingly, the court should decline to make a CMO for the time being if it wishes to urge the parties to reconsider their budgets, whether or not those budgets are agreed."
There is then reference to the decision of Coulson J in Willis v NRJ Rundell& Associates Ltd  EWHC 2923 (TCC) in which he declined to approve the parties' costs budgets in a professional negligence claim where the figures were disproportionate and unreasonable. Then there is an observation that:
"Circumstances may arise in which the court approves a budget in part only and neither approves nor comments upon the rest of it. See for example Hegglin v Persons Unknown (1) and Google Inc (2)  EWHC 3793 (QB)."