|What have the following in common?
Many readers (and we have had a dramatic increase since the start of the year) will recall that my modest hope for 2010 was that there would be more strategic thought during the litigation process than is often apparent when we are called in to assist.
Frankly, not a lot of strategic thought can be undertaken when the disclosure deadline is only days away and there is a terabyte of data to review and the other side has just produced more material than you thought possible or likely.
Of course, if you have plenty of time you can mull over strategy to your heart’s content but most litigation cases do not allow the participants that luxury!
So, how can you make time?
Fresh from the mauling the Chilcot inquisitors suffered recently at the hands of Tony Blair, the former PM would doubtless wish to offer a similarly spirited and robust defence of his 1996 speech when campaigning for the return of a Government of New Labour, in which he asserted that the three main priorities for government were: Education, Education, Education.
My recollection, on first hearing this speech, was that I thought immediately of the rather turgid 1970 film about the Japanese attack on Pearl Harbour in 1941, called “Tora. Tora, Tora”! Presumably this was because I did not take the content of the speech seriously enough and could only think of the film with a similarly three-worded title (which I believe means “Attack, Attack, Attack”)!
Now, 14 years after the speech and billions of pounds of investment later, some would argue that the priorities had not necessarily been achieved and might question whether the money had been put to good use.
In a judgement dated 26th January 2010 and running to more than 500 pages [BSkyb Ltd & Anor v HP Enterprise Services UK Ltd & Anor (Rev 1)  EWHC 86 (TCC) (26 January 2010)] Mr Justice Ramsey accepted one of the five main claims by BSkyB against EDS in their long running dispute. As a result, BSkyB looks forward to an award of around £200 million at a damages hearing expected to take place later his month.
The limitation of liability clause in the contract did not help EDS in the end as the judge found the company guilty of deceit in making fraudulent misrepresentations to win the original contract. HP, now the owner of EDS, has indicated it intends to appeal.
Ingenuity is the most remarkable human trait. Without it, we would not have discovered how to make fire, how to fashion tools and how to manufacture things useful to our everyday lives. We learned to stand on our hind legs which made life easier for our ancestors. We can also invent things which make our lives easier.
The terrible disaster in Haiti which dominated the news in recent weeks is not something which humans can prevent, nor it seems, accurately predict. We can only react and often that reaction is neither pretty nor particularly effective, but those who try to alleviate the suffering in that small island must be applauded.
It was, therefore, with some relief that I alighted upon three news items which, amongst the doom and gloom, caused me to smile about the ingenuity of the human race at a time when at least parts of it are sunk in understandable despair.
A recent US case of a law firm suing a client contains a salutary lesson.
Debevoise & Plimpton had sued former client Candlewood for $6million in unpaid legal fees and found itself facing “an answer and counterclaim” seeking damages of $55million! [Ex-Debevoise Client Raises Nasty Counterclaims in Unpaid Bills Case, The American Lawyer, 14 January, 2010]
Apparently, some of Candlewood’s allegations against their former advisers were not too flattering which only goes to show that the publicity generated by this type of dispute is often publicity the law firm could well do without.
According to Candlewood’s counterclaim, D&P managed to bill for more than 15,000 hours or the equivalent of 10 lawyers working full time for the 10 month period in question, whereas Candlewood’s Delaware based lawyers successfully represented the company for two and a half years at a total cost of $450,000.
Could this happen in England?