Plan for peace, prepare for war

By | 25th February 2010
What have the following in common?

  1. Britain’s forthcoming defence review.
  2. Jackie Fisher, First Sea Lord at the end of the 19th Century.
  3. John Terry, Chelsea and England footballer.
  4. Publius Flavius Vegetius Renatus.
  5. The Royal Navy.

Answers on a postcard please!


No, not really. Inappropriate in this electronic age and there is no prize for this one anyway.

Last Sunday evening, I was happily clutching an alcoholic restorative in a comfortable chair by a roaring log fire, when my attention was drawn to background commentary on the TV about HMS Dreadnought.

The voice was Dan Snow’s, (son of Peter of the Swingometer arms beloved of election night audiences) the presenter of a BBC TV series about Britain’s naval past entitled “Empire of the Seas”. HMS Dreadnought was the ultimate fighting ship of its time. Built in HM Dockyard, Portsmouth in under a year and launched in 1906, it effectively rendered all other ships obsolete. The trouble was that this obsolescence extended to the ships of His Britannic Majesty’s navy too and encouraged the first real arms race as other naval powers such as France and aspiring powers such as Germany invested in their ship building skills in an effort to produce an answer to Dreadnought. At the time it was a magnificent fighting ship and if you were a sailor in Dreadnought you really did fear nothing. The guns had a huge range larger than any other ship afloat and the iron clad hull effectively meant that the ship was immune from penetration by any known enemy projectile.

Some of you will recognise this approach to litigation. You know what I mean! Marshal massive forces on one side and blow the opposition out of the water with everything at your disposal before the enemy has a chance to respond. The trouble with that approach is that it is often ineffective today. I remember the days when a well fed corporate lawyer would seek to reassure his client with the words, “Don’t worry, I will get one of our litigation chaps to issue a writ right away”, the implication being that by bringing all their firepower to bear immediately you would blow the opposition away.

It is odd to realise now that in those days that was allowed! I am not talking about injunctions and applications for other urgent orders such as Anton Piller (search and seize) but about any ordinary claim where the issue of a writ was thought to be the initial negotiating tactic or possibly the only weapon in the armoury. Nowadays, we have the concept of proportionality introduced by the Woolf reforms of the late 1990s and the various protocols to be followed before a claim form (a writ sounds so much more intimidating) can be issued.

Si vis pacem, para bellum. If you want peace, prepare for war! These words are attributed to the works of the Roman military writer Publius Flavius Vegetius Renatus. Writing in the 4th century AD he was responsible for a sizeable treatise on Roman warfare. Whether he wrote these words or not, they have been adopted and adapted by many others over the ages.

I understand the words are the motto of the Royal Navy today!

However, you translate them, the sense of the words is clear. You may not agree with the sentiment but there is force in the suggestion that in order to have peace you have to be able to prosecute war. You may not want to, but if you are incapable of doing so, it will not be long before someone seeks to take advantage of your perceived weakness and you have war not peace.

Dreadnought came and went in a matter of a few years. Just as the Admiralty and its designers strove to achieve superiority, so litigators strive to overcome their opponents but the emphasis is now on the importance of skilful preparation rather than reliance on mere superiority in numbers. In these days of proportionality it simply is not good enough to seek to overwhelm the opposition by deluging them with paper or ESI without taking effective steps to reduce the amount involved. If you do not do so, your opponents will almost certainly complain and raise the judgement in Earles v Barclays Bank PLC given by Judge Brown in October last year.

I have written before [Readiness is next to godliness, 16 Febreuary, 2010] about the importance of litigation readiness as part of a robust strategy for litigation and it seems to me that the more lawyers talk to their clients in times of peace, the better prepared they will be to deal with war when it arrives. Anyway, just think of the opportunities to build relationships with your clients in the process! Truly, if you want peace, prepare for war!

Last Sunday was a day for thoughtful reflection in other ways too. Hard on my poached eggs on toast (delicious with marmite too) I came across an altogether less palatable subject in my Sunday Times. Michael Smith had written a full page article on the forthcoming defence review under the title: “The shape of wars to come”.

Difficult decisions will have to be made about reshaping our armed forces with limited funds whichever Government we elect in the spring. The arguments are ranged all along the spectrum from the defeatist (let’s reduce them all to one service) to the alarmist via the pragmatic but as one former Admiral put it: “Peace doesn’t keep itself…..history shows that. We need forces that defeat and deter threats to the UK and protect our interests around the world. If you forget that, you are not going to be any sort of power. You become Belgium”.

Unkind to Belgium perhaps but his meaning is clear. If you wish for peace, prepare for war.

If you have stayed with me this long you may be wondering what John Terry has got to do with all this. I do not consider him to be an expert in this field of e-disclosure although I am prepared to concede he may be or perhaps there is a litigation support manager out there somewhere, whom I have not met, called John Terry! However, you will know the one I am talking about and I am sure you do not need me to intrude on private grief given the revelations of the past few weeks. However, John Terry featured in an article by Alastair Brett, Legal Manager of Times Newspapers, far removed from the sports pages of the same Sunday Times dated Feb 7th.

Beside being drawn by the arresting title – John Terry, the accidental poster boy for press freedom – I decided to read the article because I used to know Alastair at university and although I have lost touch with him I always read his articles as a way of making me believe that I am still in contact with him. His article carried a picture of JT with a pained expression on his face (hardly surprising) and a subtitle which “hails the ruling that leaves liars and cheats exposed” as JT’s so called Super injunction was lifted and his identity was revealed.

Alastair is clearly no lover of the super injunction and I wholeheartedly agree with him. His point, however, was that we are in danger of sleepwalking into the nightmare of a judge made privacy law which only serves to “protect the immoral but legal behaviour of the rich and famous, or which enables philanderers not only to gag a free press but also to claim damages for cheating and lying to their wives and fans”.

Strong words indeed. He went on through a whole range of recent stories from Avram Grant’s visits to a massage parlour in Portsmouth, through Max Mosley’s successful action against the News of the World for invasion of privacy after his predilection for S & M was revealed, to the Sunday Sport journalist who, in 1990, gained access to the hospital room of ‘Allo! ‘Allo! actor Gordon Kaye where he was lying gravely injured following an accident.

His object was to suggest that privacy law in this country is a mess and to propose a solution but whatever the solution it seems to me that the participants would do well to assume you are going to be found out and to take steps to prepare for when it happens. If you want peace, prepare for war! You may not succeed but you will be embroiled in an unpleasant spat if you make no effective preparations.

Something to talk to your clients about, perhaps, before they become involved in their own wars?