When is the time right for mediation?

The existence of mediation and other forms of alternative dispute resolution can be traced throughout legal history, right back to when the Romans first developed a sophisticated legal system.

At any moment in time, both formal and informal means of resolution co-existed. How the balance made between these two different approaches would vary from time to time and it is reasonable to believe that specific factors influenced whether formal court resolution or alternative dispute resolution was more popular.

Michael Pye in his fascinating book, “The Edge of the World”, describes legal process in 12th Century Bruges. Whilst courts had been established, Pye observed,

“But if the Merchants were settled in a city, then arbitration was the best solution and debts were often the issue.”

Pye describes how arbitrators were involved and formal court processes avoided, in particular because this would have the effect of putting someone out of business, whereas a more pragmatic solution would suit all sides. He also observed,

“Arbitrators noticeably like to leave lawyers out of their proceedings, the “timewasters” denounced in one judgment of 1259.”

This suggests that mediation will be popular where two specific factors are present at the same time, that is a pool of suitably experienced individuals to be able to conduct alternative dispute resolution and a perception that the formal process is out of touch with the commercial objectives of the parties.

It is not unreasonable to suggest that there are parallels in the current position in relation to legal services, which are pointing towards increasing popularity for mediation.

There are many mature lawyers and other professionals now available to practise as mediators. Many are enjoying what has been described as the bonus years where individuals still retain good health and energy whilst having the advantage of considerable experience. This pool of suitable mediators is regularly being supplemented by legal and other professionals leaving firms who wish to shed high earning individuals at the top in favour of more junior, but less expensive, fee earners.

The legal system itself is arguably becoming more and more unattractive to any potential litigant. The law in itself has failed to modernise with many significant issues in litigation being resolved by a protracted trawl through legal authorities, usually decided in vastly different social and economic conditions. Many litigants are disappointed with the quality of decision making. The Court of Appeal has followed a misguided practice of heroic resistance to appeals on findings of fact. This has allowed Trial Judges to decide cases in the way that they wish, provided that they present the ultimate decision as resting on factual findings and impression of witnesses. This can appear to the litigants to be quasi discretionary and lacking in judicial rigour. In addition to judicial complacency about the quality of the law and decision making, there is an accurate perception that the legal system itself is creaking, if not grinding to a halt. Consistent with J K Galbraith’s famous description of public squalor amidst private affluence, the pretext of austerity has resulted in savage and ongoing costs in the provision of a court system.

Senior Judges convincingly describe the effects of these cuts in terms of decaying buildings, overworked staff and demoralised Judges. These public statements, whilst accurate, do not necessarily encourage individuals to want to access the court system to resolve disputes. It is difficult to imagine that a hotel or restaurant chain which was described by its proprietors in similar terms would attract many.

The increasing use of mediation therefore should come as no surprise with its clear advantages of being cheaper and quicker. Further, mediation involves addressing the parties’ real concerns as opposed to those which the law has historically considered to be the most appropriate way of resolving a dispute. If mediation works at its best, then the parties go home if not completely happy, at least content that the solution achieved was swift, economic and reasonable in all the circumstances.

Written by Charles Feeny and Sam Irving. Visit the Complete Mediation website.


One of the many disconcerting features of getting older is when young people look blank as you mention the name of someone you regard as seminal. I have had recent experience of this with James Thurber, my favourite comic writer, and even Rex Harrison. Rex Harrison attended the same dance classes as my grandmother in Liverpool in the 1920s. Whilst I would not necessarily expect a millennial to be aware of this specific fact, it is nonetheless disturbing when someone has never even heard of him.

Although I have not yet tried, I would anticipate a similar reaction if I mentioned Heath Robinson. Heath Robinson was a cartoonist who was best known for his drawings of what Mark Bryant described as “ridiculously complicated machines for achieving simple objectives”. The popularity of his cartoons probably reflected interest in engineering in the Industrial Age and the English fondness, to use a good Yorkshire expression, of ‘Knackling’ machinery together. The humour was completed by a simple but absurd ultimate objective of the machine. Ridiculously complicated mechanisms were shown for “removing a wart from the top of the head” or “resuscitating stale railway scones for redistribution at station buffets”. My favourite creation was the “multi-movement tabby silencer”, which automatically threw water at serenading cats.

Heath Robinson died in 1944 and could not have guessed that he was to be an inspiration to the IT industry.

When we launched Complete Counsel just over two years ago, it was our intention to use digital technology for basic service provided by the support business so far as possible. Whilst we have been able to achieve an efficient and cost effective way using currently available software, it is clear to us that the available products do seem to have a Heath Robinson quality in terms of a degree of complication disproportionate to their value in terms of functionality. What we really need is a very simple programme which can receive Instructions and enclosures and transmit the same internally so that they can be worked upon efficiently and used in Court. Having spoken to a number of IT providers, the best I have achieved so far is an acknowledgment that this is “a good idea”.

More generally, complaints about the quality and functionality of IT systems appear to be everyday conversation in Chambers and law firms. The technology does not appear to have moved on in any substantial way since first introduced over 20 years ago and developments seem to occur in an ad hoc way. The IT industry has possibly based its business models on those of the operators of motorway service stations; there is no real incentive to offer something of high quality at a reasonable cost when there is demand for average quality at a high price.

What is often offered is an additional programme which in some ways will supplement and improve the basic programme. These packages are called ,possibly in deference to Heath Robinson , ‘bolt ons’. Whilst many of them are clever and slick, in practical terms they only offer a marginal improvement on the basic functionality at an additional cost.

So I continue to receive Instructions and enclosures in a number of different ways. I might be sent a large number of PDFs, often too many for one email. These PDFs are not necessarily clearly labelled ; usually they require considering and ordering before I can start work on them. It has to be acknowledged that this is better than receiving what appears, to all intents and purposes, to be a client’s entire file, sometimes over 2,000 long in one PDF. Some clients operate by permitting access to a secure platform within their own system. However, access to and use of this platform can prove cumbersome and time consuming.

One IT salesman suggested to me that the problem was rooted in the difficulty of claiming ownership of intellectual property in relation to software systems. This disincentivised time and money being spent on their development. This appears to be a paradoxical situation in which possible developers are deterred because the solution is such an obvious one.

It may be that the way forward would be for the Bar to consider collectively whether better IT provision could be achieved. Many practitioners are cynical about the effectiveness of the Bar Council in promoting the continuance of the Bar as a robust and independent profession. This objective could best be achieved by enabling barristers to become laptop lawyers, operating at minimal basic cost. Facilitating the financing of appropriate software to achieve this objective could be a reasonable aspiration for the Bar Council.

Reflections from SITGES


Mediation: Return of legal realism?

I found the course stimulating and challenging. It gave me a real insight into mediation as an overall psychological process, with the intention of enabling a resolution which was acceptable to the parties, as opposed to one begrudgingly accepted in conventional negotiation or imposed by a Judge. Having attended mediations as a practitioner, I had moved from my initial perception of mediation as a type of joint settlement meeting, bizarrely moderated by a chummy character with a packet of chocolate biscuits. However, the course gave me considerably more insight into the nature and value of mediation.

At a personal level, I have reflected on really how poorly in certain ways litigators and indeed the law addresses the process of dispute resolution in contemporary society. I was surprised to find that so many lawyers were still locked into stereotypical positional negotiation. Similarly, the law’s approach to significant issues might be seen to be arcane and backwards looking. Often the law can be seen as an existing corpus with little grasp of the real dynamics of a dispute in its contemporary context. In an earlier blog reflecting on the EL trigger litigation, “IEG v Zurich: Insurance Law for the Digital Age?”. We suggested,

“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”.

There are interesting historic parallels here. Different structures and approaches have developed because of a perception of the inability of the existing processes and law to deliver satisfactory solutions in developing social and economic conditions.

An example close to home for me is the Liverpool Court of Passage, a court of voluntary jurisdiction which was established in Liverpool as the Port developed through the Industrial Revolution. The delays and arcane practices of the traditional courts were not consistent with the type of swift resolution necessary to serve the parties’ commercial interests. By way of contrast with Jarndyce v Jarndyce, the Liverpool Court of Passage in its prime prided itself in proceeding from incident (not issue of proceedings) to judgment in less than three months.

Similarly analogous is the development of legal realism in the United States of America, in particular through the jurisprudence of Oliver Wendell Holmes Junior and Professor Karl Llewellyn, a remarkable Professor of Law at the University of Yale. Comparable issues had arisen with the rapid development of the American economy in the late 19th, early 20th Century, and a perception that legal processes and the law were not able to deal adequately with the demands of rapidly growing commercial entities. The theory of legal realism is subject to different interpretations, but can perhaps best be described as focusing on how a Judge actually resolves a case, including the human, political and moral perspectives, as opposed to the traditional approach characterised as legal formalism. Legal formalism presupposes that a Judge reaches a decision based on a mechanistic application of the law to an objective process of factual finding. According to its proponents, legal realism attempted to define what Judges actually do, as opposed to what they say they do.

It could be argued that a similar position in the early 21st Century has arisen in the United Kingdom to that seen in the United States, when legal realism emerged. The legal system is arguably more conducted for the benefit of litigators and judges, rather than the litigants. It is not therefore surprising that mediation, with its emphasis on listening to the parties and identifying the issues which are important to them, is seen as increasingly attractive.

Legal realism is often characterised as a failure as legal formalism continued at least at a conventional or dogmatic level to be the accepted approach. However, this is perhaps to misunderstand the relevance of legal realism, which could never entirely replace a traditional approach, but acted as a perspective so as to challenge and modify the traditional approach. It is possible that the development of mediation and greater understanding of it will have a beneficial effect on more traditional forms of dispute resolution .



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.


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”

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.

The Complete Counsel ruse

Claire and I have spent some time in the past few weeks talking to clients and organisations in the market. We are very grateful to those who spared their time and been prepared to offer their advice.

The practice development service offered by Complete Counsel is intended to give Barristers the best opportunity to maintain and develop their practice in a challenging market. Understanding the needs and expectations of clients and suppliers is clearly vital if this service is to be valuable.

What has been striking is how similar the views are of those we have spoken to. First, in terms of their perception that the Bar is still wedded to a very traditional model and therefore the working processes and standards that fit with such a model.

Secondly, and by way of contrast, there is a clear consensus as to what the customers, or in many cases, potential customers of the Bar really want.

Reflecting on this, and in the best traditions of management speak, the acronym of RUSE emerges, that is,


This means responding quickly, appropriately and fully.

Understanding clients’ needs

Responsiveness is clearly part of this, but Barristers also need to understand the financial and time pressures on their clients. Barristers who insist on formality of instruction and billing for every small item of advice are not understanding the needs of their clients.


Sophisticated law firms now have the capacity to conduct litigation without any obvious need for the services of the Bar. If Barristers are going to be instructed, then they have to be perceived as offering something more in terms of detailed knowledge, specialised advice and above all, advocacy skills.

Extra value

This obviously includes education, training and informal support, in particular for junior lawyers. Astute Barristers will assist their clients with networking and client contact.

These principles may seem basic and as predating the emergence of the digital economy. However, the new and developing working practices based on IT can be seen in the specific application of these principles in terms of responsiveness, informality and wide networking. The inevitability is that Barristers who will succeed in this market must be more prepared to step into the frontline and not hide behind a clerking process.

The digital city and mass labour

There is no doubt that mass labour is a phenomenon associated with industrialisation but what is its relevance, if any, in the digital city? You will recall in the last post I spoke of the digital city resembling an ancient Greek agora on a global scale, the question now is how will this new found city impact on employment trends?

Wordsworth may have aptly described Jerusalem being built among these dark satanic mills but the description stopped there. Many of us have seen the images of these mills calling to workers through the laborious ringing of the bell; a sight which gave new meaning to John Donne’s infamous line ‘never send to know for who the bell tolls; it tolls for thee’. The tolling of the bells gave rise to the need of a mass workforce. In contrast to the agora, the majority of people met not for intellectual or social gain but for employment.

How is the digital city changing this notion? The answer lies in remote working. Remote working has fundamentally changed the landscape of employment in the western world. It is no longer necessary for many workers to travel to a physical building in order to complete their necessary responsibilities. Keeping with the tradition of the bar, a barrister is no longer shackled by the necessity of chambers. Briefs can be sent electronically and the majority of legal resources are now online meaning that work can be done with greater efficiency from a remote location. Office space is not the first item of a list of chambers’ necessities.

While many businesses will continue to utilise office space the precise function will no doubt change with people attending the physical city based upon desire. What that desire is is hard to say given the endless possibilities. As part of this people are likely to attend for intellectual or culture reasons rather than simply because they heard the bell toll.