The old order changeth

By | 27th April 2011

Of all the poems I was made to learn at school, few have remained with me as much as Tennyson’s Morte d’Arthur. I cannot help but be moved by the opening lines: “So all day long the noise of battle rolled, among the mountains by the winter sea”.

Lovers of legend will remember how the fatally wounded Arthur instructed his knight Sir Bedivere to take the famous sword Excalibur, throw it into the lake and come back and tell Arthur what he saw. The knight was bedazzled by the beauty of the sword and could not bring himself to do as instructed but pretended to the dying king that he had done so and had seen the waters ripple on the lake. The king knew he was lying and ordered him to go again. For a second time the knight could not do as instructed and again told the king that when he had thrown the sword into the water he had heard “the water lapping on the crag and the long ripple washing in the reeds.”

The king was furious and threatened to kill his knight unless he did as he was told and on the third occasion Sir Bedivere flung the sword with all his might out over the waters of the mere. As Excalibur fell towards the water, there “rose an arm, clothed in white samite, mystic, wonderful, that caught him by the hilt and brandished him three times, and drew him under in the mere.”

When Bedivere told the king what he had seen, the king knew the knight had done as he had commanded. He ordered the knight to place him in a barge to die, and began his final speech with the words: “The old order changeth yielding place to new…”

The real stuff of legend!

There are other occasions in history when this has happened (not the arm in white samite, but the old order giving way, often as a result of war, to the new.)

The Battle of Hastings is an obvious example of one way of life giving way to another. Another is the battle whose 550th anniversary we have just celebrated (if that is the right word). Towton may not trip off the tongue as readily as Hastings or Waterloo but on March 29th 1461 one of the bloodiest battles ever fought on English soil was fought out in Yorkshire as part of the Wars of the Roses. Over 50,000 men with pikes, axes and clubs faced one another and just as at Bosworth almost a quarter of a century later in 1485, the end result was a change in monarch, Edward IV replacing Henry VI.

Not so much legend as the raw power of arms removing the House of Lancaster from power for ever and replacing it, although only briefly, with the House of York until the arrival of the Tudors and Henry VII.

These days we are all armchair observers of wars fought by modern means. In some cases the military do not even leave their positions behind the lines and send armed drones and other robotic devices or guided missiles to do their work for them.

Sometimes there are spectacular results but it is definitely not the stuff of legend!

This fascination with historical dates does not impress everyone so I am happy to say that I do not think that there is a date to which our successors will look back and say that was the date when the old order gave way to the new when discussing the way litigation is conducted in this jurisdiction. You can argue that a possible date was April 1999 when the Woolf reforms took effect. You can argue for the date of the Jackson report on reducing the costs of civil litigation. You could even argue for the date last year when the new Practice Direction under Part 31 CPR came into effect (October 1st in case you could have forgotten!).

No matter, but there is no doubt that, slowly but surely, the way in which litigation is conducted in this country is starting to change. Of course, I have a view from outside the litigation fraternity these days but that enables me to see what is happening in dozens of law firms all round the country rather than a view necessarily limited by the cases conducted by my old firm and those who acted for the other parties to the litigation.

I have had two instances this year where litigation lawyers have said to me that they did not feel they had any need for electronic disclosure at this stage. Rather like King Arthur, I am not sure I believed them. Perhaps they should refer to the judgment of His Honour Judge Simon Brown QC in Earles v Barclays Bank and/or their professional negligence insurers, but “ours not to reason why!”

Encouragingly, I have also had two firms in the last few days who have approached us before the letter of claim has been sent, wanting to discuss how they might handle the whole question of collection, process and review of the data in the case and the strategy which goes with it, rather than waiting until the CMC is imminent and /or a final order has been made.

The old order certainly has changed and I think I know which order the clients of the four law firms prefer! More on this in due course.

Lawyers often say to me that while they understand the need to consider the use of the technology which now exists to manage the data involved in litigation, they are continually frustrated by the fact that they still have to turn electronic data into paper when it comes to trial. Few courts in this country are equipped for electronic trials as described by Lord Saville (of Bloody Sunday fame) to Richard Susskind in a recent interview for Digital Age with Jim Zirin: Does a public inquiry require digital support?

Click the link above to watch the 26 min interview in full. Your time will not be wasted!

At this time of economic strictures there is unlikely to be new money to equip courts with the technology Lord Saville describes, so paper will continue to be essential. But that does not mean that we should stop looking for ways of reducing the amount of paper produced and copied (endlessly), if only because clients increasingly refuse to pay for all this but also in an effort to preserve some of the trees on which so much life on this planet depends.

The good news is that things are changing for the better. The less good news is that this is happening patchily and in some cases too slowly or even not at all.

Two snippets from recent news illustrate what I mean. The first is an article by Emma Barnett, The Telegraph Media Group’s Digital Media Editor (follow @emmabarnett on Twitter ) in the Sunday Telegraph dated 17th April 2011. It is entitled “Digital Chief must trailblaze state’s online future” and concerns the Government’s search for a digital chief reflecting the growing need for digital communication and delivery. Quite why the State is involved in employing yet another adviser at a salary of only £500 less than the Prime Minister when they could easily outsource the whole job of ensuring that all the Government’s 750 websites (yes 750!!) are on a single umbrella site, I am not sure. Apparently the Government has said it wants to axe 75% of all government websites and cut the annual spend from £560m to £200m. I should think so too! Martha Lane Fox says that this figure should fall to less than £100m within a year of the creation of a one stop shop site. They could have used the money wasted on last month’s census and outsourced the job under a strict budget to the private sector and saved the cost of a Twitter Tsar. But at least they are thinking about it sensibly.

The other titbit for you is once again from The Economist dated 16th April 2011:
I think it’s time we broke for lunch… ”  The American author expounds the theory that court rulings depend partly on when the judge last had a snack, while poking a stick at the English Judiciary and what is described as their “prandial proclivities.” Perhaps it does not matter whether the data in front of them is in paper or electronic form!

The old order may be changing and giving way to the new.

Occasionally, it is for the better too.

Illustration: Edward Burne-Jones.The last sleep of Arthur, 1898