Band 1 again in Chambers & Partners…

2nd November 2017

Band 1 again in Chambers & Partners and spotlight table for Charles Feeny in Clin Neg and Industrial Disease. ‘Widely recognised as leading clin neg specialist. Popular choice for firms looking to fight intricate cases on causation and quantum’.  ‘Highly esteemed by peers for his exceptional expertise in Industrial Disease matters, approachable, authoritative and excellent’.

Charles Feeny has been invited to join the CEDR Mediator Panel

We are delighted to announce that Charles Feeny has been invited to join the CEDR Mediator Panel and becomes their only accredited Mediator in Liverpool.

View Charles’ profile page here.

The next CEDR event deals with ‘Mediation in Public Healthcare’ which is due to take place on 26th September. Full details can be found here.

THE DIGITAL CITY: DOES ACTUAL LOCATION MATTER?

In previous articles, we have suggested that the Digital City does not have any specific location, but rather is constituted by the connections which the internet facilitates. Against this background, where the citizens are located might be regarded as essentially happenstance, but digitally they are all citizens of the same entity.

However, personal interactions remain and individual locations have different cultural and social traditions. Therefore, whilst there is a Digital City, it has distinct neighbourhoods and those neighbourhoods have different characteristics.

Recent research has confounded many people’s perceptions with the realisation that Liverpool now has the biggest proportion of fast growth firms of anywhere in the United Kingdom, to include London. We suggest that this is because the city is so attuned to the development of the digital world.

Uniquely, certainly for the United Kingdom and perhaps in the world, the character of the city was formed by people in transit, rather than a longstanding indigenous population. Liverpool expanded from a small fishing village in the 18th Century to a major port in the 19th Century. The expansion brought many people of different ethnicities into to the city and this effect was exacerbated when the Port became a major exit point from the old world into the new world, in particular North America. The character of the city can be judged from a piece in the Liverpool Mercury in 1887 which described the city’s atmosphere without any resistance to the use of stereotypes,

“The streets of Liverpool during the emigrant season present stirring spectacles of cosmopolitan animation, and the city itself is the temporary resting place of visitors from all parts of the hemisphere. Russians, suspicious and sullen, … Finns and Poles, men of fierce and haughty natures, … Germans, quiet and inoffensive, brave and determined … the flaxen-haired Scandinavians, paragons of nature’s handiwork, erect and stately.”

This great Port went into massive decline with the end of the empire, the disappearance of the traditional industries of North West England and the ravages of war. By the 1980s, its ultimate demise was confidently predicted. Significantly, the city’s incredible renaissance in the 21st Century has been driven by a similar process to its original growth that is by people in transit. These people are now tourists and cultural visitors. Many will be descended from the economic migrants, although no doubt considerably wealthier and less given to stereotypical presentations.

The character formed and regenerated by this process is complex, involving openness with strangers and a willingness to assist them, an acceptance of change, a lack of concern over financial security, and a disrespect for status and authority. It is easy to see how Liverpudlians could seamlessly become citizens of the Digital City. Of course, this exciting growth has to be seen against the background of a low starting point by contrast with other cities, in particular London. Whilst the Digital City exists in London, in particular at Silicon Roundabout, it does not appear, certainly at a distance, that the digital industry is characterised by originality or creativity. Rather, as with large parts of London, it appears to be in the psychological and financial paw of the global corporations, with its energy directed principally towards enhancing their lavish profits.

We have already argued that the Digital City should be regarded as a rebel city. If it has different neighbourhoods like most cities, it may have its affluent but ultimately rather staid districts, but also its much more stimulating bohemian quarters.

Upcoming event: Cerebral Palsy & Brain Injury Cases – Ensuring you do the best for your client

Date & Time: 16/03/2016, 9:00 am – 5:00 pm
Location: Foresight Centre, Liverpool

Complete Counsel in association with AvMA (Action against Medical Accidents), Atlantic Chambers and A Neat Legal Services will be organising a conference on 16th March 2016 that will discuss and analyse the key areas currently under the spotlight in Cerebral Palsy and Brain Injury Cases so that lawyers are aware of the challenges required to best represent their clients.

The conference will commence with an in-depth session on CP litigation analysis, involving medical experts and barristers including Charles Feeny and Ana Samuel from Complete Counsel. The discussion will then move on to cover intrapartum fetal distress and surveillance focusing on CTGs, neonatal risk factors for CP, paediatric neurology and neuroradiology and case management input and care. Tactical budgeting in CP litigation will also be examined. The conference will be chaired by John Benson QC from Atlantic Chambers.

To download the full conference programme and to book your place in the event, please visit AvMA website here.

Charles Feeny and Ana Samuel Published in The AvMA Legal and Medical Journal

A clinical risk article entitled “She should have died hereafter? When is death caused in law by breach of duty?” written by Charles Feeny and Ana Samuel has been published in the forthcoming issue of Action Against Medical Accidents (AvMA) Medical Journal. The article examines the law surrounding causation in situations when a death could be said to have been accelerated with particular reference to the case of Davies v Countess of Chester Hospital [2014] EWHC 4294 (QB). In doing so, the authors argued that there are two options available to the courts, one that is an arbitrary time limit and the second which focuses on materiality.

For further details please contact editors@pro-vide-law.co.uk.

IS THE DIGITAL CITY THE NEW REBEL CITY?

Written by Sammy Nanneh and Charles Feeny

A great deal of light has recently been shed on the advent of technology in our legal system. Moore’s law, that the number of transistors on integrated circuits doubles about every two years, has long buttressed society’s technological revolution. It has meant exponential growth in the technological sector, with no end in sight.

With this in mind, this article will seek to briefly analyse the potential impact of properly harnessing the power of future technology into our old and traditional legal system. This will be done in three short parts. Part one will explain the notion of a ‘rebel city’ and why our – at times archaic – provision of legal services could do with an overhaul. Part two will seek to present the technological revolution as the key pathway for this overhaul. Part three will look specifically at the potential for our legal system to take a leading role in the wider technological revolution and the rise of the ‘digital city’.

Part one – Defining the ‘rebel city’

What is a ‘rebel city’? One of the primary elements of the Enlightenment that dominated the world of ideas in Europe in the 18th Century was the rise of the ‘public sphere’. At the core of this was a realm of communication, marked by new arenas of debate, more open and accessible forms of urban public space and an explosion of print culture. Secrecy and the concealment of ideas was, in theory at least, the gravest of sins. Cities, brimming with the very people that harboured these ideas, became the conduit through which social progress could be pursued. But this soon came under the attack and exploitation of a capitalist system based on endless profit, infinite consumption and sprawling urban growth no matter what the social, environmental or political consequences.

Against this backdrop, the notion of what David Harvey refers to as a ‘rebel city’ can be explained. It is only through the city itself, from the bottom-up, that we may return to the glory days of our cities as the home of diverse collectivism, innovation and free thought. This requires a broader, revolutionary movement in our rebel city.

In what sort of format has the capitalist hijacking reared its head? One example is through the creation of exclusionary urban spaces to which the commons lack access. It is not hard to conjure up the image of gated communities, or glass towers, to which only a privileged few may access the expensive delights within. The window cleaner is left to ogle from without. To tackle this, the social practice of ‘commoning’ can be undertaken . At the heart of this is that the relation between the social group and that aspect of the environment being treated as common shall be collectivised and less commodified. One may see this as a partial reversion to a previous age, proud to have based itself firmly in the democratic delight of intellectual collectivism.

If exclusionary practices continue, then those who promote diversity, efficiency and openness in society will lose out to the predatory practices of upper class consumers. Such consumers may lack any social imagination and find themselves unknowingly constrained by the bureaucratic chains of history, paying higher costs for less valuable end products. Worrying indeed. In light of this, the ‘rebel city’ and the right to reclaim it must be construed as a right to rebuild and recreate the city as a socialist body politic in a completely different image. One facet of this rebuilding is to put the power back into the hands of the common consumer. In the legal world, the best way to achieve this is through a rebel city taking a 21st Century form. We shall call this the ‘digital city’.

Part 2 – Rebel cities as digital cities

Our rebel city is a digital one. New technologies continue to usher in a revolutionary conquest against the traditional and ever more dated lifeblood of our economy. Until recently, this lifeblood took the form of face-to-face interaction with clients, long nights spent spilling ink on paper and a pressing need to have drawers fully stocked with first-class stamps. The traditional rigid and time-consuming mechanisms of our economy (particularly in the services industry) and the status quo of the players within it, be they big or small, face an immense upheaval. This upheaval takes the form of technological advances oozing in potential for efficiency, cost-saving and innovation. The relevant players in their respective industries will at this moment face a choice. To entrench their positions, resting on their laurels and hoping the revolution will not result in a coup, or to embrace the opportunity for a fundamental reconceptualisation of the industry they are in.

This revolution is being conducted through the use of widely accessible products such as kindles and smartphones, devices spurred on by the ammo of unlimited internet connectivity. Even noises and sounds are not safe from the threat of extinction. The youthful newcomers reading this, (those best equipped to embrace and enjoy the technological revolution) will hardly remember the noise that once escaped a struggling dial-up modem. Faced with such a revolution, a modern economy based firmly on the principles of endless profit and consumption, is scrambling to adjust. No sector is immune.

One need only look to our Baltic neighbours to see the mind-boggling potential of a digital city. In Estonia, the birthplace of Skype, a technological revolution is being conducted by the gradual creation of a ‘digital sovereign’. Estonia has taken ground-breaking steps to put its entire state online. In 2011, 97% of tax returns were made online. Voting is conducted online, and laws are signed into effect with a digital signature. Cabinet meetings are paperless. For €50 anyone can become an e-resident of Estonia and take advantage of the simplified, infrastructure of a state that exists online. In an extreme scenario, imagine the state was invaded and annexed. The state in its original form could be put on a memory stick and simply booted up from anywhere in the world.

Part 3 – The ‘legal digital city’

The potential for an entire country’s infrastructure to be digitalised poses a strong indication of where the future of the law could be heading, a ‘legal digital city’. But do not take my word for it, Lord Justice Ryder as recently as last week has urged for a web-based expansion of justice and the rationalisation of the judiciary. He has called for the replacement of the ‘post-Victorian superstructure’ of courts and tribunals with a modern, paperless system. This would be based on online access and a streamlined judiciary in order to realise the values embodied in the Magna Carta (enjoying its 800th birthday) and to increase access to justice.

But it is not only the courts and tribunals that will eventually reek of archaism. It is not a mere dream to imagine a world in which one day the glass towers of our cities will be replaced with a digital city. The legal sector, long plagued by the issue of excessive costs and bureaucracy, could yet lead the way in this revolutionary endeavour.

As Harvey puts it, ‘the question of what kind of city we want cannot be divorced from the question of what kind of people we want to be, what kinds of social relations we seek and what style of life we desire. It is a collective rather than an individual right, since reinventing the city inevitably depends upon the exercise of a collective power over the processes of urbanisation’.

It is in that context that Lord Justice Ryder’s assertion that the very realisation of fundamental aspects of the Rule of Law depends on a comprehensive embrace of the digital revolution by the legal sector. The legal world has an immeasurably valuable opportunity to take the lead in representing the cutting-edge progressiveness of society’s digital revolution. The boost to self-employment and the innovation, cost-saving and diversity associated with it, means that it is in no uncertain terms that it can be stated that the ultimate rebel city in the legal world of the 21st century is a digital one.

“Cities are never random. No matter how chaotic they might seem, everything about them grows out of a need to solve a problem. In fact, a city is nothing more than a solution to a problem, that in turn creates more problems that need more solutions, until towers rise, roads widen, bridges are built, and millions of people are caught up in a mad race to feed the problem-solving, problem-creating frenzy”

McGEER v MACINTOSH: PAVING A SAFER WAY FOR CYCLISTS?

Read on for Charles Feeny’s explanation on the case of McGeer v Macintosh in his latest note, “Paving a Safer Way for Cyclists?” on our Pro-VIDE site. This case involved a cyclist who undertook a stationary car at traffic lights and then cycled to the nearside of an HGV which was indicating to turn left. Mr. Feeny acted as the Claimant’s counsel on this case. You can also download an official copy of the final judgment on McGeer here.

Bright White Line Law: the follow on…

Thank you for attending our symposium last Wednesday. The event was a great success (despite the weather) and provided an opportunity to really get to grips with a difficult area of the law. Thank you to those who participated on the panel and gave such interesting talks. For my part, I feel that the difference in award of damages is an under analysed area and given the current cost of clinical negligence one that needs discussing. My opinions on the decision and applicability of Bailey v MoD are no great secret but there is an interesting point as to whether the current interpretation of material contribution to damage can be applied in Popple.

Finally, I believe that the difference in opinion between the clinicians and the court is worth highlighting. In time pressured medicine is the court too focused on artificial timings and are the best efforts of doctors being unreasonably categorised as negligent where there is simply no explanation?

Please contribute further to this discussion.

The Shed: The First Six Months

When I announced at the beginning of this year that I was going to practise from my shed, it created some surprise, in particular amongst those credulous enough to believe it.

So how has it gone? Well, overall I feel quite liberated and close to nature. There have been some downsides, in particular a few spats with the gardener when I got in his way as he has tried to remove tools. Also I have had some terse emails from members of the Bar who do actually work from their shed and thought that I was mocking them.

As many have now realised, “the shed” was essentially a metaphor for the remote and flexible way of working now possible in the digital age.

So how has the metaphorical shed gone? From a personal perspective, I feel quite liberated but not necessarily close to nature (actually, I generally work indoors).IMG_0328

Having spent many years working in traditional Chambers in traditional buildings, it never really occurred to me that this was in some way psychologically inhibiting. Shed working, even at the metaphorical level, is much less routine or structure driven and I have the feeling that within reasonable limits, I can do what I want, when I want and how I want.

When Barristers ask me about Complete Counsel, their initial impression is that it is a virtual Chambers or an alternative Chambers. However, it is not a Chambers at all; it is a different way of supporting a Barrister’s practice.

We are developing parallel digital brands. I think of parallel brands rather like the Gremlins in the Spielberg film. Once you have one, it seems you can multiply them very quickly.

Complete Counsel was set up as a sister business to Document Direct. Once Complete Counsel was established, it became possible at really minimal cost to develop parallel brands. We have now launched Complete Mediation. We are in the process of developing two further parallel brands; one focusing on HR and Employment and another more generally on litigation.

Whilst the terms synergy and strategy are vogue expressions now widely used with scant regard for their meaning, they can be used to describe the development of parallel brands which could be considered to be either strategically synergistic or possibly synergistically strategic. Each brand will create opportunities and contact which can be fed through to the other brands. Digitalisation and deregulation are changing the market for legal services beyond recognition. It is apparent that there are those who are seeking to adapt existing structures and practice to these challenges, but others who realise that in reality, they have to operate in a different way. The latter group appear to have a much more positive attitude and understand the real opportunities being presented. It is conspicuous that we are able to form informal alliances with similar minded individuals and practices to our mutual advantage. These alliances carry with them none of the psychological baggage of a Practice or Chambers, or even require formal agreement.

So perhaps the thought of an inevitable improvement in the weather and a summer in the shed is making me too sanguine.IMG_0338

The town shed has amazing views.

A final thought. The modern Bar emerged from the 18th Century, that is from the date Barristers rode behind the Judge and his retinue literally on a circuit. The individuals who followed this way of life inevitably had to be robust and independent. They had to take what work they could find. The Defendants were often illiterate and incapable of giving meaningful instructions. Capital punishment was the usual outcome. The Judges of those days did not have the benefit of a Judicial College to advise them of appropriate behaviour in court. The tradition of a robust and independent Bar was forged by these early Barristers. A Barrister in reality needed only one essential item, that is a horse. Now, a Barrister only needs one essential item, that is a laptop. So perhaps the changes now afoot will act as a backdrop to the recrudescence of a robust and independent Bar.

IEG v Zurich: Insurance Law for the Digital Age?

The rules for the division of a prize, that is a captured Vessel in 18th Century Maritime custom, were elaborate and precise. In Patrick O’Brian’s, “Master and Commander”, Captain Jack Aubrey contemplates his share of the prize, the Danish ship, “DORTHE ENGELBRECHTSDATTER”, as follows:

As he let himself sink on to the long cushioned locker, he found that he was in the act of saying “Carry Three” for his mind was busy working out three eighths of £3,500 – it had now fixed upon the sum as the worth of the “DORTHE ENGELBRECHTSDATTER. For three-eighths (less one of them for the Admiral) was to be his share of the proceeds. Nor was his the only mind to be busy with figures, by any means, for every other man on the Sophie’s books was entitled to share – Dillon and the Master, an eighth between them; the surgeon (if Sophie had officially borne one on her books) bosun, carpenter and master’s mates, another eighth, then the midshipmen, the inferior warrant officers and the marine sergeant another eighth, while the rest of the ship’s company shared the remaining quarter. And it was wonderful to see how briskly minds not given to abstract thought rattled these figures, these symbols, up and down, coming out with the acting yeoman of the sheets’ share correct to the nearest farthing.”

Unfortunately for Jack Aubrey and his crew, all these calculations were pointless as the crew of the Danish ship who had been assumed to have been killed by Corsair pirates were found in a secret hiding place within the Vessel, which then was no longer deemed a prize.

Such precise calculations and customs were common in the 18th Century at the time when insurance law began to emerge in its present form. It is instructive to consider what a different commercial world existed in the 18th Century when business was conducted through arcane ledgers, when communication beyond the immediate face to face was difficult, often impossible, and when the opportunities for real wealth were so infrequent and slight, that great precision was required when it arose. This is to be contrasted with the emerging digital age, where process is seamless through software, when communication is instant and worldwide, and there are seemingly limitless business opportunities.

Reading the speeches of the Supreme Court in IEG v Zurich, it is striking how all the justices attempt to fit what can be perceived as an obviously fair and reasonable solution into the historic rubric of insurance law, even though such law developed in very different times and commercial practices.

The advantages of the digital age will only be fully exploited if it is understood that digital process is not a means of supporting a traditional approach, but rather a different approach in itself reflecting the need for much greater speed and flexibility in the exchange of information.

An obvious problem emerged in insurance law when the creation of the Fairchild exception in mesothelioma claims created a situation in which policies underwritten for single events such as accidents had to be interpreted in the context of liability reflecting the risk of an event occurring, as opposed to causation proved on a traditional basis. The Fairchild exception created rights to indemnity under policies underwritten successively and the same would not have been contemplated at the time that the policies were incepted. In Phillips v Gunner Limited [2003] EWHC 1084 (Comm), I attempted a simple argument that if indemnity was working in a way not anticipated at the time that the policies were underwritten, it would be reasonable if the concept of double insurance was modified so as to reflect this situation . In particular, the historic application of double insurance only to policies underwritten at the same moment in time should be modified. This argument, however, was met with a rigid and conservative approach and the principle of double insurance remains as originally cast. A decade of insurance litigation has followed since Phillips and it is reasonable to reflect on how much of this might have been avoided had a simple and pragmatic approach been taken at the outset. It is interesting to see in the Supreme Court speeches, reference to the Australian approach which has been more liberal. Australia is a younger country and has a noticeable judicial creativity which appears to produce more reasonable and contemporary results.

Whilst traditional insurance law no doubt has an intellectual fascination for those who engage in it, those who need to use such law in their commercial transactions are increasingly likely to want an approach that is comprehensible, leading to swift and reasonable resolution of disputes.