There has been further judicial recognition of predictive coding in the UK in BCA Trading (UK PC Order) [2016] EWHC 1464 (CH).
In May the England and Wales High Court Chancery Division (EWHC) approved the use of predictive coding as part of the e-discovery protocol, against the wishes of one of the parties.
In doing so the EWHC has re-iterated and re-enforced the decision in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (CH), in which the Court identified ten factors which favoured the use of predictive coding. For further detail see our Forensic Matters publication.
The Pyrrho case had a large corpus of over 3 million documents, whereas the BCA Trading case had significantly less: around 500,000 documents.
Pyrrho must be further distinguished from BCA Trading in that, in Pyrrho both parties agreed to the use of predictive coding, only requiring the Court to approve the method.
The Registrar in BCA Trading said that:
- The fact that there were no factors of any weight pointing in the opposite direction to the ten Pyrrho factors, encouraged and sustained the decision to allow the use of predictive coding;
- There was a concern that predictive coding might not be as effective as traditional methods. However, the parties must do their best to achieve reasonable and proportionate results.
The Registrar also said that the very use of predictive coding, which requires that the parties discuss the criteria to adopt and the general process of disclosure, prior to commencing predictive coding, would be beneficial to the discovery process.
This decision further solidifies predictive coding's legitimacy as an alternative – and, often, preferable to traditional keyword searching and linear review.
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