By | 14th October 2010

Son of Sweyn Forkbeard and of Swietoslava (or possibly Gunhilda also known as Sigrid the Haughty) the daughter of Mieszko 1 of Poland, grandson of Harold Bluetooth and great grandson of King Gorm (the first historically recognised King of Denmark) and more famed for the story that he once tried to command the advancing waves to stop at Bosham in West Sussex than for his other achievements, the remarkable history of King Canute was brought into sharp focus for me the other day when I was sitting listening to the sermon in the Cathedral at the annual Justice Service in Norwich.

This service mirrors the service held each year on October 1st in Westminster Abbey to celebrate the start of the new legal year which is followed by the Lord Chancellor’s Breakfast held in Westminster Hall. Attendance by Her Majesty’s Judges is high and is always colourful as can be seen by newspaper pictures of brightly attired senior legal figures walking from the Abbey to the breakfast. Confirmation also came from the judge who presided over our Norwich service, Mrs Justice Gloster, Head of the Commercial Court and about whom I wrote recently in this blog [Whizzie Lizzie and the Commercial Court,  7th Sept, 2010 ].

HM The Queen opened the new hostry at Norwich Cathedral earlier this year and the Dean reminded us that prior to the building programme there had been an enthusiastic archaeological dig which had revealed the foundations of the original hostry upon which much of the new hostry now rests. But, for him and for many, the most exciting discovery by the “diggers” was a silver penny (which I have since seen and actually handled) dating from 1025, some 70 years before the construction of the present day cathedral began in 1096, depicting a Christian cross on one side and a likeness of King Canute on the other.

Canute was by all accounts a remarkable man. Ruler of an empire which included England, Denmark, Norway and parts of Sweden, he could be ruthless when necessary but he is also credited with what the authors of “1066 and all that” would have described as being “a good king” who, amongst other achievements, divided England into the four great kingdoms of Mercia, Wessex, Northumbria and East Anglia and introduced the laws of inheritance and strengthened the currency on which so much of the prosperity of the merged kingdoms of England and Denmark was to depend.

The currency of the realm appears to have been common throughout his empire and as such was described by the Dean in his address as the forerunner to the euro although I suspect Canute would be horrified, were he alive today, to have his beloved currency compared to what now circulates around Europe. He would have been equally horrified to be associated today quite wrongly with the concept that he thought he was smart enough to be able to command the sea. The popular myth is, of course, slightly inaccurate and, as most people know, the story was Canute’s way of demonstrating to his particularly over zealous flatterers that when they suggested he was so powerful that he might order the seas, they were ridiculous and dangerously wrong.

The Dean’s theme was a passage from one of the newer versions of the Bible where Jesus said to his disciples that “when a teacher of law becomes a learner in the kingdom of heaven, he is like a householder who can produce from his store things new and old” (Matthew 13 verse 52). The Authorised Version has it as “Every scribe which is instructed into the Kingdom of Heaven is like unto a man that is a householder which bringeth forth out of his treasure things new and old.” Not so easy to understand but, as is often the case, more magisterial! The idea of a man’s treasure is bound to excite the imagination more than a mere store!

It is not entirely clear when Canute was born. It may have been 985 or 995 AD but there seems to be historical agreement that he died (was murdered) on 12th November 1035. He was buried in the Old Minster in Winchester along with Saint Swithun. The Old Minster no longer exists but it is known it was slightly to the north of and partly under the present cathedral in Winchester and the bones of the monarchs buried there are now contained in the mortuary chests around the choir. So, like his penny in Norwich, Canute has found a religious resting place after all.

From time to time, I come across stories or hear scraps of conversation which start me thinking and occasionally I share those thoughts with readers of this blog. Of course, it is not my purpose to take you through the minute detail of the Dean’s address, but the quotation he used struck me as being just as relevant to where we are today in the world of electronic disclosure as it was to the Dean’s theme at the Justice Service.

In conversation with a senior litigation lawyer over lunch recently, I was struck by the realisation of how far we have all come in the past few years. From almost paranoid fear of anything to do with technology to calm acceptance that it has a vital role to play in many cases. Add to that the new Practice Direction 31B which came into force on October 1st and about which I recently sent out an email alert and commentary, and you have something old and something new coming out of the treasury (or store, if you must) of those lawyers (or teachers of the law) who are learning about e-disclosure and its benefits. I know I should not compare the Kingdom of Heaven to e-disclosure but I hope you get my drift!

My lunch companion happily accepted that today it was inappropriate and disproportionate to work exclusively in paper and as Mrs Justice Gloster has remarked before “the days of filling my court with lever arch files full of paper which we will never look at, are over!”

What my lunch companion was relieved to know was that while there are great benefits in appropriate cases for using technology to reduce the mass of data he had collected to a manageable amount, he could still work on the final resulting data in paper if that worked for him and his client. Hey presto! Something new and something old from the treasury! And in many cases that will be entirely acceptable to the parties and to the courts (because it will almost certainly be proportionate) and to the clients too who will not have to face a bill from their lawyers for reading through thousands of pages which proved to be irrelevant.

Just like that over zealous flatterer of King Canute, technology providers who insist that their technology and their systems offer the only way to heaven are ultimately likely to be shown to be ridiculous and possibly dangerously wrong. What is needed is a measured and considered strategic approach to the problem using the EDQ (Electronic Documents Questionnaire) where necessary and appropriate and getting your house in order by considering carefully the Practice Direction and the areas covered by the questionnaire.

If lawyers adopt that approach they will almost certainly find it of benefit to their command of the case and the interests of their clients. The “teacher of the law” will have become a real learner in the realms of technology!