To hell in a handcart

By | 21st June 2012

The summer (ha ha) is a time when I often find that work gets in the way of my social life. I am sure I am not alone in that, even if the weather is more like the Falkland Islands (30 years on) than what we expect of a reasonably temperate island to the north west of the European continent in June.

Which is not to say that we are all going to hell in a handcart, whatever that may mean. I found myself wondering recently about the origin of the phrase which had tumbled into my mind while I was enjoying a few rays of improbable sunshine and thinking about the future development of the world of e-disclosure – as you do!

Before dealing with issues beloved of common law lawyers the world over, such as Peruvian Guano, you may be interested to know that to go “to hell in a handcart” is a phrase of uncertain origin. Many suggestions have been made about its derivation but the one which strikes me as one of the most colourful and one which is at least as likely as any of the others may be found in a church in Gloucestershire.

The great west window of Fairford church depicts the Day of Judgment in stained glass. Amongst the mediaeval images of the innocent going to heaven and the guilty going to hell, is the picture of an old woman going to hell in a wheelbarrow being pushed by a blue devil.

Whether this is an ancient warning to us all or merely to lawyers who still cling to the idea that disclosure is all about managing pieces of paper, I am not qualified to say. It is certainly a powerful image of the Day of Judgment, even if it does not depict the fate of the lawyer after a CMC who has failed to prepare sufficiently for the searching questions put by the judge (and possibly opposing counsel) on how she and her clients intend to approach the subject of disclosure.

South America is a continent of contrasts and surprises and one which has always filled me with longing and some wonder. I have been lucky enough to spend some time there in the enlightened days when lawyers had sabbaticals and subsequently for both work and play, so I know a little about what goes on there. As a result I feel partly qualified to mention the Inca fascination with and use of bird droppings to fertilise their crops. The Quechua Indian language word for “the droppings of sea birds” translates as guano, which the Incas valued highly, restricting access to it and punishing any disturbance of the birds with death.

Discovery as it used to be called (and still is called in the rest of the world) has always caused problems for contentious lawyers. In the 19th century and subsequently, the rules provided that any document relating to any matter in question in the dispute was discoverable. In the case of Peruvian Guano (1882) 11 QBD 55, Lord Justice Brett ruled that “as large an interpretation” as possible would be given to the words of the rule and that “ the documents to be produced are not confined to those which would be evidence either to prove or disprove any matter in question in the action.” Such documents included those which “might lead to a train of enquiry enabling a party to advance his own case or damage that of the opponent.”

The CPR put an end to all that with the introduction of the concept of standard disclosure (although it is still possible to board the train of enquiry if you can get an application for specific disclosure off the ground, or out of the marshalling yard to continue the metaphor)! If you have forgotten how these rules have been applied in practice you should refer to the case notes in the resources section of this blog and in particular the case of Nichia Corporation v Argos Limited (2007) EWCA Civ 741 (17th July 2007)

Incidentally it is one of the quirks of our judicial system that rules often become known by the name of the case which introduced them. Thus we have Peruvian Guano discovery, Norwich Pharmacals injunctions and Anton Piller orders – the latter sounding so much more exciting than mere “search and seize”.

One of our judges who has already got to grips with the changing scene is His Honour Judge Simon Brown QC who runs the Mercantile Court in Birmingham. People may say that what happens in the Mercantile Court in Birmingham is of no concern to practitioners in London, Manchester, Leeds or anywhere else in the country but they would be wrong.

They are wrong because LASPO is now law and if you don’t know what I am talking about, you will hear more about the Legal Aid Sentencing and Punishment of Offenders Act 2012 in forthcoming pieces on this blog. Odd as it may seem from its title, which has nothing whatever to do with civil procedure, this legislation gives effect to the reforms proposed by Lord Justice Jackson in relation to menu options for disclosure and the all important new regime on costs management.

I intend to comment in due course on two articles written by Simon Brown in the New Law Journal in which he gives us all the benefit of his practical experience of running a court where case management conferences are definitely not the rubber stamping exercise beloved of lawyers of a certain age who thought it was their inalienable right not to manage cases except in the way they wanted to, as well as tips on how to prepare for the CMC of the future and the how to approach the whole area of disclosure from now on.

There will be more detail on this in due course but I leave you with the references to the two articles in case you want to get ahead of the game:

You may not be destined for hell in a handcart or in any other type of conveyance but ignorance of the new rules and the regime of costs management will only leave you (and your clients) in the guano, so to speak!