Snails, smoke balls and good neighbours

By | 28th August 2009

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.

Another favourite was the Carlill v The Carbolic Smoke Ball Company (1892 EWCA Civ 1) not so much because of its exposition of the law of contract but rather its magnificent and unforgettable name!!  But I digress….

There is a good potted version of the “snail case” in Wikipedia. This handy source of information about a case serves my present purpose admirably with its concise recital of the facts and the details of Lord Atkin’s famous “neighbour” test.

What has this got to do with Smart e-discovery, you may ask?

The unfortunate Mary Donoghue sprang to mind during a recent conversation about where lawyers might find reputable organisations to assist them in dealing with a quantity of electronic documents in circumstances where their in house resources either could not or would not help.

It seemed to me that there was no simple answer to this question. Indeed, if you search the internet for vendors or suppliers you are likely to come up with millions of hits for potential providers.

There is no easy way round this but consider asking your colleagues and friends about their experiences in this field. Who would they use? You are doing well if you can come up with two or three recommendations but then how do you choose between them? Sometimes you will only be given one name and how do you check if they are right for you?

There are a number of criteria which lawyers might usefully bear in mind when faced with the problem.

Without in any way claiming that the list below is exhaustive, it seems to me that when you are faced with this difficulty there are a number of questions you might ask.


  • What sort of help do you need? Forensics or e-Discovery?
  • How big is the case?
  • Who are your opponents?
  • What sums are involved and what is your client’s attitude to the litigation?
  • Will a disclosure exercise be likely or is there a good chance the case will settle before that?
  • What is the experience of the potential provider? Ask about their track record, their financial standing and seek out their market credibility.
  • What about their project management skills? Ask for details.
  • Can they work easily at 10 gigabytes and can they scale up to terabytes or more if necessary?
  • Are they tied to a single approach or can they offer a range of solutions to suit your particular needs and are they flexible enough to adapt those solutions as the case progresses and/or the circumstances change?
  • What are their operating hours?
  • Is there a long term contractual commitment? What happens if the case settles?
  • What is their security like?
  • Do they offer training?
  • Do they offer continuing support during a project?

In the end, once you have some or all of the answers to these basic questions, you may well decide that the firm you want to work with is the one which provides the friendliest faces even if it only ticks some of the boxes above.

In general, we all like working with people we get on with, like and trust and that, to me, is the real secret of a successful professional relationship.

If I am right, that will go a long way towards answering Lord Atkin’s question: “Who then, in law, is my neighbour?”