For the first time in the UK, on February 16, 2016, a court (the High Court of Justice Chancery Division, Master Matthews) approved the use of predictive coding in e-disclosure. Pyrrho Investments Limited v MWB Property Limited,  EWHC 256 (Ch).
Noting that there were no English precedent (¶32), the Master relied on some US decisions (Moore v Publicis Groupe, 11 Civ 1279 (ALC))(AJP) and to an Irish case (Irish Bank Resolution Corporation Ltd v Quinn  IEHC 175 in which “Irish High Court has also endorsed the use of predictive coding” in a case – the Master notes “unlike the present case, the use of the technique was not agreed between the parties” (¶31) it has found that “if one were to assume that TAR will only be equally as effective, but no more effective, than a manual review, the fact remains that using TAR will still allow for a more expeditious and economical discovery process.”
The Master considered several factors in favor of the use of predictive coding: 1) positive experience in other jurisdictions; 2) no evidence that predictive coding leads to less accurate disclosure; 3) greater consistency in predictive coding than in the use of “dozens, perhaps hundreds, of lower-grade fee-earners” to review documents; 4) nothing in the rules prohibiting it; 5) the number of documents here is “huge, over 3 million; 6) the cost of manual search “would be enormous, amounting to several million pounds at least” and therefore “unreasonable”; 7) the cost of predictive coding here has been shown to be much less than a manual review; 8) the value of the claim here is high (“in the tens of millions of pounds”) and the “the estimated costs of using the software are proportionate”; 9) because the trial is fixed in June 2017, the parties and the court will have “plenty of time to consider other disclosure methods” if predictive coding “turned out to be unsatisfactory”; 10) the parties agreed on the use of predictive coding. See ¶33.
Finding no factors “pointing in the opposite direction” the Master approved the use of predictive coding.
I considered that the present was a suitable case in which to use, and that it would promote the overriding objective set out in Part 1 of the CPR if I approved the use of, predictive coding software, and I therefore did so. Whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstances obtaining in them. ¶34.
See the full Approved Judgment here
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