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Predictive Coding – “TAR” very much

04/01/2017 | Louisa Hartley
Since the decision in Pyrrho Investments Limited and another v MWB Property Limited and others EWHC 256 (Ch) permitting the use of predictive coding in an electronic disclosure exercise there has be

Since the decision in Pyrrho Investments Limited and another v MWB Property Limited and others [2016] EWHC 256 (Ch) permitting the use of predictive coding in an electronic disclosure exercise there has been much commentary on predictive coding, also referred to as Technology Assisted Review [“TAR”], and its use in the disclosure process. Prior to that decision, use of predictive coding technology in the English courts had been limited, mainly due to the fact that there was no authority confirming that its use fulfilled a disclosing party’s obligations under the Civil Procedure Rules [“CPR”].

Disclosure under the CPR

The purpose of disclosure is to make available evidence which either supports or weakens the parties’ respective cases in order to assist the Court to fulfill the overriding objective of dealing with cases justly and at a proportionate cost. Parties are required to undertake a “reasonable search” for documents (CPR r31.7) which meet the test of standard disclosure. This includes electronic documents such as emails and computer files.

What is reasonable is decided by reference to a number of factors (set out in CPR r31.7(2)), specifically:

(a) the number of documents to be searched;

(b) the nature and complexity of the proceedings;

(c) the ease and expense of retrieval of any particular document; and

(d) the significance of any document which is likely to be located during the search.

There are additional factors that determine what is a reasonable search of electronic documents such as consideration as to the availability and location of electronic documents and the cost and likelihood of recovering them (Practice Direction 31B).

What is predictive coding?

Predictive coding is used in the electronic disclosure process in litigation. It is computer software which identifies electronic documents that meet the test of standard disclosure. It aims to streamline the document search and review process and, in doing so, to reduce the costs and the time which would otherwise be spent manually reviewing documents.

Predictive coding is a distinct form of TAR in that it is a continuous learning mechanism, as opposed to merely using technology to search for keywords in documents to consider whether certain document should be disclosed or not. The increasing use of TAR and now predictive coding in place of human manual review of documents in the disclosure exercise is due to the fact that it is just as, if not more, accurate than manual review and in the majority of cases costs less time and money.

How it works

Predictive coding combines human expertise with data analysis to create an algorithm by which relevant and non-relevant documents are identified, categorised and flagged.

In practice, the parties will first agree a set of guidelines to define the data size, criteria for inclusion of documents and a margin of error. Documents are then uploaded onto an electronic review platform and a representative sample is selected to train the software. A manual review of the documents produced by the software is carried out by a solicitor who categorises them as relevant or not-relevant. Predictive coding software then analyses the sample and scores the relevancy of documents to the case based on common concepts and the language included. The remaining documents are then reviewed by the software and categorised as either relevant or not relevant.

Advantages

  • Avoids manual review of a large number of irrelevant documents therefore saving time and costs.
  • The number of documents in review is not directly proportionate to the costs i.e. doubling the number of documents does not double the cost of reviewing them.
  • Documents which are relevant in the case can be identified quicker than if each were reviewed manually.

Disadvantages

  • Predictive coding does not work with non-text-searchable documents and mainly numerical content.
  • Where there is a high proportion of relevant documents the time and cost savings will not be as significant.
  • It is not always 100% accurate.

The decision in Pyrrho

Master Matthews highlighted in his judgment that whilst the CPR and its Practice Directions contemplate the search for electronic documents, neither deal with the question as to how these should be searched. The Master did note however that PD31B does mention the use of “automated methods” or “automated search techniques” in the search for electronic documents.

The number of electronic documents under review in Pyrrho amounted to over 17 million. After de-duplication that number was still 3.1 million. Drawing on the decisions of the US Federal Court case of Moore v Publicis Groupe, 11 Civ 1279 in which there were over 3 million documents to be reviewed and the Irish High Court case of Irish Bank Resolution Corporation Ltd v Quinn [2015] IEHC 175 in which there were over half a million documents after de-duplication, Master Matthews considered that the use of predictive coding was appropriate. Included in the factors he listed in his Judgment as being in favour of the use of TAR were:-

  1. The parties had agreed on the use of predictive coding software, subject to the Court’s approval.
  2. There is no evidence that predictive coding is less accurate than manual review and, in fact, there was evidence that it was more accurate in some cases.
  3. There is nothing in the CPR or its Practice Directions prohibiting its use.
  4. The number of electronic documents to be reviewed in the case was “huge” and the cost of manually searching for these would be “enormous”. The highest cost estimate given to use the technology was £469,049 plus monthly hosting costs of £20,820 which Master Matthews considered as “far less expensive than the full manual alternative”.
  5. The value of the claim was tens of millions of pounds and therefore the costs of using the software were proportionate

Although each case will turn on its own facts, the implication of the judgment in Pyrrho is that there is now judicial authority for parties to use predictive coding in e-disclosure where it is considered appropriate. The more recent case of Brown v BCA Trading Ltd [2016] EWHC 1464 (Ch) affirms the Court’s view that technology is sometimes a better alternative to traditional methods. In that case, the Court ordered the use of predictive coding against the Claimant’s wishes. Over £20,000,000 was being claimed with the cost of predictive coding estimated to be around £132,000 and the cost of traditional review £250,000.

The Court considered the factors identified by Master Matthews in Pyrrho and made an order for the use of TAR. Consequently, even where the parties do not agree to predictive coding, the Court may order its use in disclosure where the arguments in favour far outweigh those against it. It may well transpire that TAR will become the norm, unless there is a compelling reason not to use it.

If you would like any further information, please contact Simon Walton on 0207 955 1455.

This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice, please contact Rosenblatt as above.  

New Apprenticeship Levy

14/12/2016 | Andrea London
As announced in the Summer 2015 budget, those companies with an annual UK pay bill of over £3m will be obliged to pay the government's new apprenticeship levy. The levy is a key element of the gover

As announced in the Summer 2015 budget, those companies with an annual UK pay bill of over £3m will be obliged to pay the government’s new apprenticeship levy. The levy is a key element of the government’s plan to fund three million new Apprenticeships in England by 2020.

The levy is due to come into force from 6 April 2017 and it will be mandatory and require employers to invest in apprenticeships. The size of such investment will be calculated in relation to the size of the company’s UK payroll bill.

How will levy contributions be calculated?

The levy will be required to be paid by all employers with a gross annual pay bill of more than £3m. A company’s levy contribution will be paid against the total gross bill at a rate of 0.5 per cent, minus an annual levy allowance of £15,000 to offset against this. In addition to the amount payable by the employer, the Government will apply a 10 per cent ‘top up’. Therefore, for every £1 paid in to the fund, the employer will have £1.10 to spend.

Levy payment will be collected by HMRC through the PAYE system. Employers will have to calculate, report and pay the levy to HMRC through the PAYE process, alongside any tax and NICs. Each month, the employer will have to inform HMRC whether it needs to pay the apprenticeship levy and if so, include it within the usual PAYE payment.

Example:

A company with an annual pay bill of £10m and will be obliged to contribute an annual levy payment of £35,000. This contribution is calculated as follows:

  • Annual gross pay bill of £10,000,000
  • Apprenticeship levy calculated at 0.5% of £10,000,000 = £50,000
  • Less the £15,000 apprenticeship levy allowance = £35,000 annual payment

What will happen to the money once the levy has been paid?

Once an employer in England has registered and paid the levy, it will then be able to access apprenticeship funding through a digital apprenticeship service account. The account will allow employers to effectively “reclaim” their levy contributions as digital vouchers, which can then be used to select and pay for Government approved training providers, post apprenticeship vacancies and to search for candidates. Companies will have up to 24 months to spend the vouchers, after which any unspent funds in the digital account will expire.

As apprenticeships are a devolved responsibility, Scotland, Wales and Northern Ireland have their own, separate arrangements in place.

What can the levy fund be spent on? 

The levy contributions can only be used for Government approved apprenticeships, which includes both the new approved standards and Trailblazer Apprenticeships. The levy fund must be spent on training and assessment with a recognised and registered apprenticeship training provider, those training providers with an inadequate Ofsted rating will not feature on the approved register.

Unless an organisation becomes its own training provider and draws down the funds, employers will also be unable to use the levy for internal training. In order to become a training provider, the company would be subject to the appropriate inspections and would need to officially register as a training organisation.

Digital funds and government funding cannot  be used for:

  • apprentice wages or expenses;
  • trainee or workplace programmes;
  • the costs of setting up an Apprentice programme.

Opportunities for smaller companies

Employers with a pay bill of less than £3m will not have to pay the levy, but will be able to benefit from the fund. When the new funding system begins, non-levy payers will be able to choose an approved training and assessment provider. In a scheme known as ‘co-investment’, the company will only be expected to contribute 10% of the cost of training, with the government paying the remaining 90%. For now, SMEs will pay the training provider directly and will not need to use the digital apprenticeship service account until at least 2018.

What next?

Given the mandatory nature of the levy, employers with a £3m+pay bill will need to ensure that their business is in a position to benefit from its own contributions. Rather than be disadvantaged by levy payments, companies should begin to consider either introducing apprenticeships or developing current programmes in order to recover the monies they have been required to pay in.

If you would like any further information, please contact the Employment Department on 0207 955 0880.

This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice, please contact the Employment Department as above. 

Tribunal obscures ICO Guidance on Freedom Of Information Requests made via Twitter

29/07/2016 | Suzanne Hu
The Information Commissioner’s Office issued guidance on how a Freedom Of Information request made via Twitter could comply with the statutory requirements. A subsequent decision by the First Tier

The Information Commissioner’s Office issued guidance on how a Freedom Of Information request made via Twitter could comply with the statutory requirements. A subsequent decision by the First Tier Tribunal, which solicitors had hoped would provide more clarity in this area, has instead blurred the issue further.

Twitter launched ten years ago this month. In its first few years, it enjoyed a fast-paced, if fractious, relationship with the British legal world. There was the “Twitter Joke Trial” where a tweet from a frustrated traveller in January 2010 led to a criminal conviction and three appeals which finally overturned the conviction in July 2012. There was the anonymous tweeter who, in May 2011, revealed allegedly key details of several super-injunctions rendering them somewhat pointless as they then spread like wildfire over social media (which continues to be a thorn in the side of super-injunctions, see our previous article “STOP PRESS!- Supreme Court consider celebrity threesomes to be ‘at the bottom end of the spectrum of importance’”).

Even as far back as October 2009, Twitter played its role in the creation of a new type of court order called a “Blaney’s Blarney Order” whereby an order was permitted to be served against an anonymous individual via Twitter (Donald Blaney v Person(s) unknown, (not reported)).

Such forward thinking looked set to be adopted by the Information Commissioner’s Office who, in July 2011 via its monthly newsletter, opined that a Freedom Of Information request made via Twitter against a public authority could be valid as long as the public authority’s Twitter handle was cited, and the real name of the individual making the request was provided, if not in his/her Twitter handle then in a linked profile. In addition to making requests via Twitter, the ICO also suggested that public authorities could respond to requests via that medium: as to the 140-character limit imposed on tweets, the ICO suggested that the public authority could post its response on a website and tweet a hyperlink to that, or ask the individual for an e-mail address.

However, it appears that the courts are not so ready to embrace the ICO’s pragmatic approach. In November 2015, the First Tier Tribunal dismissed the appeal of a decision by the Information Commissioner, holding that the tweet in question was not a valid Freedom of Information request. The Tribunal held that (i) it did not contain the appellant’s real name (this was available by clicking on his Twitter handle which led to his profile, but the Tribunal stated that the Freedom of Information Act 2000 does not impose a requirement to search elsewhere for this information); and (ii) a Twitter handle did not constitute an address for correspondence (the Tribunal stated that this must mean an address that is suitable for correspondence between the public authority and the requester, and that a method of communication which is limited to 140 characters is unsuitable for such correspondence).

The details

In August 2014, the Department for Work and Pensions sent a tweet from its Twitter account about the percentage of genuine jobs on its ‘Universal Jobmatch’ service. The appellant, Bilal Ghafoor, replied “@dwppressoffice FOI request: copy of internal report or assessment, including all data considered and method, for this assertion. Thanks.

There was then an exchange by e-mail and Twitter, culminating in the DWP’s response (via e-mail) that there was “no set report or assessment” for its assertion regarding the percentage of genuine jobs on Universal Jobmatch and that “this percentage was calculated by the team responsible for removing non-genuine accounts from the service from their own records”.

Mr Ghafoor complained to the Information Commissioner that the DWP had not complied with his request relying on three grounds:

1.      That the DWP was in breach of s.11 of the FOI Act because it had provided its response via e-mail, and not Twitter as Mr Ghafoor had asked;

2.      That the DWP was in breach of s.10 of the FOI Act because it had responded outside of the statutory time limit; and

3.      That the DWP was in breach of s.1 of the FOI Act because it was incorrect to state that no relevant information was held.

In opposing the complaint, the DWP contended that the FOI Act provided that (i) it could respond by any means reasonable in the circumstances; (ii) time did not begin to run from Mr Ghafoor’s initial tweet because it did not state the applicant’s name and correspondence address as required of a valid FOI request; and (iii) it was correct to say that no relevant information was held.

In relation to (ii) and (iii), the Commissioner decided in Mr Ghafoor’s favour and held that the DWP was in breach and required the DWP to issue a new compliant response or a valid refusal notice.

However, in relation to (i) the Commissioner agreed with the DWP. It held that the DWP was entitled to refuse to provide a response via Twitter on the basis that s.11, which allows an applicant to express a preference for the form or format of communication, did not apply to communicating simply – as was the case here – whether the requested information exists or not (known as the duty to confirm or deny). Rather, s.11 only applies to when the information requested does exist and is being provided.

Apparently unsatisfied with the decision, Mr Ghafoor appealed. He argued that:

(a)       the drafting of s.11 must have been an oversight because permitting the use of one means of communication for the duty to confirm/deny, and then a different one to actually provide the requested information was counter-intuitive;

(b)       permitting a public authority to ask for an address different from that stated in the FOI request would be a breach of the 3rd data protection principle (i.e. that an organisation should not hold more information than it needs for the purpose it is holding it for);

(c)       where a FOI request had been made by a tweet, it should be responded to by a tweet where reasonably practicable;

(d)       the DWP frequently published information via tweets which contained links, thus avoiding the 140-character limit problem, and therefore the DWP could do the same for a FOI response; and

(e)       he had made his FOI request through the same medium through which the assertion he was challenging was made, and it was reasonable to expect the DWP to reply through this medium and give equal publicity for the evidence as it did for its claim.

The First Tier Tribunal maintained that the DWP had not breached s.11 as it did not apply to the duty to confirm/deny. However, it agreed with Mr Ghafoor that a public authority could not demand a different address for correspondence from the one stated by the applicant in a FOI.

Unfortunately, given the efforts to which he went, the Tribunal held that Mr Ghafoor’s FOI request was not valid in the first place. It did not contain his name or an address for correspondence as required by s.8 of the FOI Act. In so finding, it ruled that ‘name’ must mean ‘real name’ and ‘address for correspondence’ must mean an address that is suitable for correspondence between the public authority and the requester, and that a 140-character limit meant this method of communication was unsuitable.

Analysis

Despite the ultimate outcome for Mr Ghafoor, this decision leaves open the possibility that Twitter could be suitable for FOI requests if certain hurdles can be overcome, for example had Mr Ghafoor signed off his tweet with his real name, or if his Twitter handle was @BilalGhafoor.

It is unclear, however, whether the Tribunal’s Decision applies only where individual correspondence would exceed Twitter’s 140-character limit, or whether it means no FOI requests made via Twitter can ever be considered valid even if both the FOI request and the response would be within the character limit. There is no consideration of whether, per the ICO’s guidance back in July 2011, attaching links (or screenshots) to Tweets would make a Twitter handle a suitable ‘address for correspondence, or of Twitter’s ‘direct message’ function which has a much bigger limit of 10,000 characters. There is also, of course, the possibility that Twitter may increase the character limit for Tweets generally. It has made various changes to its service in the past year: in addition to the increased character limit for direct messages, it also added an option for tweeters to permit anyone (not just followers) to direct message them and, in May 2016, Twitter announced that it would make changes to reduce what counts towards the 140-character limit on ‘public’ Tweets. This limit, which is largely a vestige from when Tweets were originally sent by text message, is a key issue for Twitter and its users.

However, until another Twitter FOI request comes before the courts, these issues will remain unresolved. We will be monitoring this area, and report on any further developments.

Suzanne Hu is an Associate in our Dispute Resolution department. If you require any assistance with matters requiring dispute resolution, please do not hesitate to contact Suzanne on 0207 955 1441.

High Court ruled that an order for costs could be revised to include provision for a payment on account.

28/07/2016 | Lucy Hamilton-James
On 21 June 2016, a Judge, in handing down judgment at the hearing, ordered the claimant to pay the defendant’s costs.  When counsel for both parties were subsequently seeking to agree the terms of

On 21 June 2016, a Judge, in handing down judgment at the hearing, ordered the claimant to pay the defendant’s costs.  When counsel for both parties were subsequently seeking to agree the terms of the order, counsel for the defendant sought to include provision for payment on account.  The claimant objected to  such provision being included in the order on the basis that the request for the inclusion of any such provision should have been made at the hearing when the order was made.  There were other minor issues considered and dismissed by the Judge but, as he stated in his judgment: “The substantial point, as it seems to me, is whether a request for payment on account can only be made at the hearing itself.  If so, then, once the parties come to draw up the order for the court’s approval, it is too late to argue for its inclusion.”

However, the judge went on to clarify that, while the general rule is that an order is effective from the moment it is made by the court, the court still has the power to alter its judgment or order at any time until it is entered and perfected by sealing, and that such power is not limited to exceptional circumstances.  The judge went on to order a payment to be made on account within 14 days.

This ruling demonstrates the court exercising its powers in a measured and pragmatic way in that, if it is appropriate for provision to be made in an order for a party to make a payment on account, it would conversely be inappropriate to prevent such a provision being included simply because its inclusion was not requested at the hearing.  It is often the case that subsequent to a hearing, counsel will agree between themselves certain tweaks to an order, particularly on points in relation to costs, before it is sealed or revert to the judge for clarification on certain points and taking a common sense approach to this can keep costs down.  It is also a reminder that parties should not resign themselves to being unable to have appropriate provisions included in an order even if requests are not made at a hearing.  If after the hearing but before the order is sealed, requests are made and the court considers the requested provisions can and should be included, such requests may be accommodated.

Aliston Albert Ashman v Clyde Caulson Thomas [2016] EWHC 1810 (Ch)

Pokemon Go… Away?

18/07/2016 | Suzanne Hu
Those on social media will already be aware of the gaming phenomenon of Pokemon Go, released recently in the US, and last week in the UK. For everyone else, start getting used to looking at the top

Those on social media will already be aware of the gaming phenomenon of Pokemon Go, released recently in the US, and last week in the UK. For everyone else, start getting used to looking at the tops of people’s heads…

For those not in the know, Pokemon Go is an augmented reality game: as players walk around, they receive a live view of their surroundings (via their smartphone’s GPS and camera) over which Pokemon (animated characters) appear superimposed. The aim is to catch as many Pokemon as possible, then train them up to battle other players’ Pokemon at “gyms” which are located at public landmarks or buildings in the real world.

Whilst the game has been lauded both for its capitalisation of augmented reality and the physical activity factor, it has also caused controversy and raised a number of potential/actual legal issues: invasion of privacy from the game’s initial requirement to access a player’s entire Google account; invasion of privacy and harassment from players congregating outside people’s homes; and involvement in criminal offences (there are already reports of criminals using the “lure” element of the game to rob players, and concerns that the “team” element could facilitate child grooming).

However, it is not only individuals that may be affected. Businesses may too, for example should the work premises become a Pokemon Go location this could be disruptive to daily business, or there may be decreased productivity from employees who either play the game at work or take long breaks in order to do so.

As to the latter, businesses could take a similar approach to that outlined at section 3 of our previous article “Are Employers Ready for Euro 2016?” by reminding employees that any excessive time-wasting will be dealt with in accordance with the employer’s standard policies.

Should your work premises become a Pokemon Go location, it would appear that little can be done in the immediate future. The UK’s harassment laws do not apply to businesses and, whilst they do have privacy rights, they are more limited than those afforded to individuals such that fleeting (albeit unwelcome) gatherings of gamers is unlikely to meet the privacy thresholds. Either by design or oversight, the game’s designers have put the onus on individuals/companies to request that their home/workplace be removed from Pokemon Go, rather than ensuring first that those would be appropriate locations in the first place. Even then, the game currently only provides for removal requests if locations present “immediate physical danger”; apparently, requests “for other reasons cannot be addressed at this time”. So for now, you may simply have to resort to polite notices to the public asking them to stay at a respectful distance and move on quickly.

Of course, your business may welcome the increased footfall, particularly if the premises are a retail or entertainment venue. The game is very much still in its infancy, and it is easy to foresee businesses paying to have their premises selected to be “gyms” or other Pokemon Go key locations. Any businesses interested in this should keep a watchful eye on developments in order to be ahead of, or more appropriately in, the game.

The author would like to make it clear that she does not, and does not intend to, play Pokemon Go as she has far better things to spend her time on. After all, those Sims don’t feed themselves.

Suzanne Hu is an Associate in our Dispute Resolution department. If you require any assistance with dispute resolution, please do not hesitate to contact Suzanne on 0207 955 1441.

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