A decision of the English High Court handed down earlier this week has expressly approved the use of predictive coding (also known as technology assisted review) for a large disclosure exercise: Pyrrho Investments Limited & Anr v MWB Property Limited and Others  EWHC 256 (Ch). Judicial approval of the use of predictive coding should also encourage the UK regulators (both PRA and FCA) to consider its use in facilitating disclosure of documents in the context of regulatory and supervisory investigations.
Based on the US's experience, this case will likely mark a turning point for the use of predictive coding in England and Wales. It took the US less than three years from the date of its first judicial approval to reach the point that "it is now black letter law that where the producing party wants to utilize [technology assisted review] for document review, courts will permit it.” Rio Tinto Plc v Vale SA, 1:14-cv-3042 (S.D.N.Y. Mar. 2, 2015).
As noted in Master Matthews's decision, predictive coding has been used relatively infrequently in English litigation. However, Herbert Smith Freehills is among a small number of firms that have already employed the technology in large-scale disclosure exercises in England. While judicial endorsement is not a pre-requisite for a party's use of predictive coding software, Master Matthews's decision is welcome in confirming the benefits of the technology in appropriate cases in England and Wales.
Celina McGregor, a senior associate in our London office, considers the decision in more detail below.