Partner Amjid Jabbar comments in The Times re the outsourcing of disclosure by the SFO following several high profile failures in previous cases against Unaoil and Serco.
Amjid’s comments were published in The Times, 5 May 2022, and can be found here.
“It rather depends on the scope of the disclosure outsourcing. If they mean that they are using external platforms to host the data and to perform searches and scans of the material, then that is obviously fine (subject to adequate data security etc).
However, if the suggestion is that consideration of the material and the making of disclosure decisions is to be outsourced, then that would be problematic. Whilst it may well be reasonable and proportionate to allow technology to search for documents using, for example, key words, the product of that review should be reviewed by those with (a) a proper understanding of the facts of the case so that they can ascertain what is actually relevant and what might actually undermine or assist & (b) the appropriate legal training to know the test. In any event, the final decision should be taken by appropriately qualified lawyers.
Ordinarily, this sort of task would be undertaken by drafting in additional disclosure lawyers (sometimes junior counsel).
If the SFO are trying to use technology and/or external non-lawyers to do the review work (other than the hosting/searching), then one wonders whether their priority is cost-saving or justice!
This, I fear, will simply add another layer of complexity and allow the SFO to try and pass blame for their disclosure failures to another body. Ultimately disclosure needs to be undertaken properly by a resourced and trained body.”
04 Dec 2023