Monthly Archives: August 2009

Snails, smoke balls and good neighbours

Lawyers will all remember (some possibly with fondness) the case of Donoghue v Stevenson (1932) AC 562. The snail in the ginger beer case was a favourite of mine at university not least because it showed the human side of the law and how the law related to real life.

I was only slightly amused to discover that this famous case  has recently been given a musical treatment by the catchily-named Australian “rock band” Lord Atkin & the Tortfeasors. Click the video below… if you dare.

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Down among the green shoots

Green shoots?  But will they be trampled by the elephant in the room?

In her recent article (Positive thoughts, The Lawyer, 26th August 2009) Katy Dowell quotes the claim by Patrick Sherrington, global head of litigation at Lovells, that London is a “good place to hear cases” and his view that the Government (by asking Lord Justice Jackson to review litigation costs) has misrepresented the British commercial justice system as being an expensive place to litigate.

Sherrington asks, “Why should we say it’s expensive? It’s shooting ourselves in the foot.”

Economists may disagree whether the economy is set to recover and whether the recovery will be W shaped, V shaped or any other shape, but I have noted before [The race is on, 25th August] that there appears to be an upturn in the amount of litigation work in the City…

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The race is on

Usain Bolt’s electrifying run in Berlin last weekend which resulted in a new world record of 9.58 seconds for the 100m set the press speculating on how low he could take the world record.

Recent events in the global economy have led to a very different run for lawyers. Judging by the gloomy stories coming out of all sections of the legal market, you could be forgiven for wondering how low matters can go! 

Stories abound of redundancies, falling profits, part time working, enforced sabbaticals, deferred training contracts and even advice from the Law Society to students not to go into the law. 

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See you anon – in court

Blogs may not be as anonymous as some contributors have assumed or would like.

As a relative newcomer to the art of blogging, I woke up today to a salutary reminder that bloggers are not above or beyond the law when it comes to ‘ordinary’ standards of defamation and libel.  According to an aticle in the Times  ‘Vogue model Liskula Cohen wins right to unmask offensive blogger‘ an anonymous blogger in the US has posted less than flattering comments about a Vogue model called Liskula Cohen, to which Ms Cohen took grave exception. She applied to the court for an order that Google, the blog host in this case, disclose to her the identity of the blogger so that she could sue him/her for damages for defamation.

She won!

Judge Joan Madden, a Manhattan Supreme Court Justice ruled that Google should hand over the evidence of identity to her and rejected the blogger’s argument that blogs “serve as a modern-day forum for conveying personal opinions, including invective and ranting, and should not be treated as factual assertions”.

As it happens, contributors to the Smart e-Discovery blog are not anonymous, though it does remind us that moderating comments before they are published is a sensible precaution!

Jackson Road Show

I travelled to Birmingham recently to attend one of the road shows hosted by Lord Justice Jackson as part of the consultation exercise following publication of his preliminary report. That exercise is now complete and we await his final report at the end of the year. The event was well attended, attracting about 150 lawyers, civil servants, trade unions and other professionals, with a keynote address by the Lord Chief Justice, Lord Judge. Rupert Jackson’s two assessors, Mike Napier of Irwin Mitchell and Jeremy Morgan also attended.

Speakers included Professor Helen Genn, Anthony Hughes of FOIL, Amanda Stevens (Charles Russell and formerly of APIL), John Ussher of UNITE and Judge Stephen Oliver-Jones QC.

The message which came across loud and clear was that change is on its way and particularly in relation to areas of litigation practice such as disclosure. If lawyers cannot come up with a more efficient and cost effective way of dealing with disclosure, the rules relating to disclosure will have to be changed to make the process less onerous and therefore cheaper to comply with.

All this is of a piece with Mrs Justice Gloster’s view expressed at a recent Commercial Litigators’ Forum meeting that the days of courts filled with lever arch files are over.

You say discovery, I say disclosure…

I must admit I have always been baffled by the decision taken by Lord Woolf in Access to Justice to rebrand the process of “Discovery”, which we all knew and loved and to call it “Disclosure”.

I don’t think you see the process called Disclosure elsewhere in the world and indeed, I have recently had reason to look at the new Irish Supreme Court rules for 2009 and see that they resolutely refuse to follow Lord Woolf’s lead and firmly call the process Discovery. 

I am not sure what lies behind the change but the process described is still the most expensive and time consuming of all the litigation tasks.

Coupled with the reluctance to come to terms with new technologies and the increasing amount of documents for disclosure caused by emails, back up tapes etc., disclosure has become a nightmare for clients and lawyers alike.

I hope that some sensible recommendations for change will come out of the Jackson review on costs.   However, a start could be made now if..

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The Road from Wembley

Almost everybody has heard of the protracted litigation between Multiplex and various parties arising out of the construction of the new National Stadium at Wembley.  Amongst those disputes the largest, and most publicised, was that between Multiplex and its steelwork sub-contractor, Cleveland Bridge (CB).

Less well known are the 6 paragraphs (out of a total of 1693!) in a judgment given towards the end of last year in yet another Multiplex/CB case (no. 6) and entitled “The Lesson to be drawn from this Litigation”…

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Speak no evil

It came as news to me recently that the technology exists to search the spoken word in much the same way as e-discovery tools search the written word.

Bearing in mind the wide definition of “document” for the purposes of disclosure, lawyers need to consider whether voicemails and recorded messages and other forms of the spoken word should be disclosed. Basically, speech recognition companies offer a “culling” system similar to e-discovery by using search terms to pull out responsive material from audio tapes.

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Neuberger sweeps clean

Lord Neuberger is to be the 95th Master of the Rolls since the 13th Century. At 60, he is the youngest of the Law Lords and has enjoyed a meteoric rise to the top job.

“I am fully aware of the many challenges of my new office which will include the implementation of the review being conducted by Lord Justice Jackson into the costs of litigation…”, he said when his appointment was announced. 

A fresh approach (he takes office in October when the present incumbent moves to the new Supreme Court) and talk of implementation of the Jackson recommendations, encourages me to believe that the reforms introduced by Lord Woolf in 1999 will be brought up to date with new rules relating to the sensible use of technology in litigation where such use can bring about savings in time and costs.

Doubtless this will be a relief to the paying client!

From the supreme to the ridiculous

I noticed a report in The Lawyer on 31st July relating to the swansong of the House of Lords Judicial Committee.

The Committee is being replaced by the new Supreme Court of the United Kingdom in October.

Apparently, the staff have a sense of humour. On their last day callers to 020-7219-3111 heard Frank Sinatra singing “I did it my way” accompanying an answerphone message listing the last appeals heard in Chambers. On the day I called, Ol’ Blue Eyes had been replaced by a rather dull message…

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