This article was first published in The Times on 4 May 2017.
Digitisation of London's business courts is about to come one step closer. From 25 April. litigants will be required to issue claims, file documents and pay court fees online, and will be able to do so 24/7. One of the main drivers for the new system is the creation of the electronic case file, which will be available online to the parties and the judge, wherever they happen to be working.
In a recent lecture, Lord Justice Briggs explained the ambition that all the processes for issue of civil proceedings through to trial will be digital rather than paper-based by 2022. He spoke of breaking the "tyranny of paper". Nowhere is this tyranny more apparent than at disclosure, often the most expensive part of the commercial litigation process. Due to the rapidly escalating volume of electronic documents generated today, it is not unusual for parties to have millions which need to be reviewed.
In such cases, court rules require parties to discuss the use of tools and techniques which could reduce the burden and cost of disclosure. The court's electronic documents questionnaire expressly anticipates that parties may wish to use automated search techniques.
Technology assisted review (TAR) allows us to reduce huge volumes of data to more manageable levels, saving time and costs. Perhaps the most well-known form of TAR is predictive coding, in which a "seed set" of relevant documents is used to train software to identify potentially relevant documents and prioritise them for review. Other software tools are used to analyse huge amounts of unstructured data very quickly, organising documents into related clusters, allowing us to spot hot topics and prioritise accordingly.
The use of TAR was first endorsed by a court in the US in 2012. Over three million emails had to be reviewed. The judge said "while some lawyers still consider manual review to be the 'gold standard', that is a myth, as statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review." Importantly, the court also expressly recognised that TAR is not a magic solution for all cases.
TAR was first approved by a UK court in Pyrrho Investments Ltd v MWB Property Ltd  EWHC 256 (Ch). Here, the cost of human review was estimated to be least several million pounds, whereas the cost of using predictive coding was estimated at somewhere between £180,000-£470,000 plus monthly costs of £15,000-£20,000. Master Matthews identified a list of factors which supported its use including favourable experience of use in other jurisdictions, the fact that, again, over three million documents had to be reviewed, and the significant costs savings.
In Brown v BCA Trading  EWHC 1464 (Ch), the parties disagreed over the use of predictive coding. The party holding the majority of the documents asserted that it was the most reasonable and proportionate method of disclosure, as well as being significantly cheaper than the alternative. Applying the factors identified in Pyrrho, the Registrar directed that predictive coding should be used. In February this year, it was reported that the Serious Fraud Office is now using TAR in its investigations.
Meanwhile, work is being done using data mining and predictive analytics technology to forecast outcomes of litigation. It may be some time before it is applied to big ticket litigation but we wait and see!