Event: Bright White Line Law

16/9/2015 @ 4.45pm-7.00pm

Royal College of Surgeons, London.

4.45pm registration for a 5.15pm start.

The symposium will look at specific cases considering whether the supposed control mechanisms of breach and causation in clinical negligence operate reasonably and effectively in the context of the vast difference in outcome between those who succeed as a claimant as opposed to those of similar disabilities who rely upon the state.

Confirmed speakers include:

• Charles Feeny, Barrister;

• Professor Sandy Steel, The University of Oxford;

• Professor Derek Tuffnell, Consultant Obstetrician and Gynaecologist; and

• Dr David Levy, Consultant Anaesthetist.

The symposium will look at two decisions of the Court of Appeal; Sutcliffe v Aintree Hospitals and Popple v Birmingham NHS Trust, where Defendants were unsuccessful in appeals against findings of liability. There will be in depth analysis of each case with the assistance of a relevant expert and legal input. For further information please contact editors@pro-vide-law.co.uk.

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.

Introducing Complete Mediation

Advanced notification of our parallel brand ‘Complete Mediation’ with Scott Donovan, Barrister and Michael Swift, Chartered Accountant acting as Consultants in the process. Click here for more information.

About Pro-DIGI

Pro-DIGI is a forum for discussion.  Contributors are invited to discuss the emergence of the digital city, with particular emphasis on the developing business district of Liverpool.

Paradoxically, the presence of much derided call centres in the city centre has created significant resource in IT support within the city.  There is a tradition in Liverpool of lack of formality and mental flexibility (admittedly often described in rather less flattering terms).  These attributes lend themselves clearly to the digital economy, where structure and status are of little importance and business is conducted with openness and flexibility.

So the digital city emerges, but what is it?  It is clearly very different to the industrial city with its corporate buildings and droves of wage slaves.  However, is it a new urban environment or has the liberation of the digital age recreated aspects of the medieval or even ancient city?  Do we revert to a place to which people go for positive reasons associated with business and social contact, intellectual debate and cultural experience, as opposed to being driven there through the economic necessity of work?

Or is the true digital city not a place at all, but the connections and contacts which develop through the web?

Understanding the digital city will enhance the prospect of maximising the opportunities of the digital age.

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,

Responsiveness

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.

Specialisation

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.

The 21st century agora

When one thinks of the digital city it is not likely that they will stop to reflect upon comparisons with ancient Greece. Much academic ink has been spilt on the role the internet plays in modern life and it is fair to say that, notwithstanding the comparably short life of the world wide web, the subject is catching up upon its ancient rivals.

Many of the great Greek philosophers, especially Plato and Aristotle, presented their ideas to those assembled in the agora. It is a common misconception that the lexicon ‘agora’ referred to a market place in the modern sense of the term. The agora, as it was know to both Plato and Aristotle, was so much more: it was the primary meeting place for free-born male citizens to discuss matters associated with their city. It was from these locations that much of the thinking we take for granted originated. When Odysseus sailed home from Troy he did so using the stars and planets as a means of navigating yet it was at the agora that their importance was first discussed by the Greeks. Much of what was discussed is still used today with the word ‘planet’ come from the Greek planētēs meaning ‘wanderer’ and ‘agoraphobia’ deriving directly from agora itself.

What, you may still be thinking, does this have to do with the internet? The internet is rapidly become one of the most important means of exchanging and debating ideas. A clarification should be made at this point at to what is meant by the exchange of ideas: it is not the visceral hatred that comes from so many sources and is colloquially called ‘trolling’. There has always been those seeking to impress their hate on others and the internet has allowed this on a truly global scale. Ideas here is, suffice it to say, what normal right minded individuals would take it to be. It is through these exchanges of ideas that the modern digital city has been born and that city better reflects the agora rather than the vast metropolises (derived from the Greek mētrópolis meaning mother state or city, equivalent to mētro-, combining form of mḗtēr mother + pólis -polis) which came into being in Western Europe with the advent of indusrialisation.

The bar has always gathered to exchange ideas and debate legal issues. Professor Sir John Baker has done extraordinary work is highlighting the progression of legal education from the time of the Conquest up until the 1700s. The principal method has by en large been through discussion and mock trials at the Serjeants’ Inns, followed by the Inns of Court. Although debates still take place at the Inns universities have largely taken over the education of lawyers including those practising. Even in the modern age the primary basis of education has not changed but the means of facilitating these have. The increasing provision of online legal education has facilitated the start of the online city. This city is focused on training and education; people are meeting to exchange ideas but now on a global scale. This transformation has resulted in the move back to the agora but now the agora extents beyond physical constraints.

Complete Counsel: shedding the unnecessary

From 5 January 2015, I will continue my practice as a Barrister, with support from Complete Counsel.

shed

Complete Counsel is an innovative project which will operate as a sister company to Document Direct.  It is anticipated that instructions through Complete Counsel will be electronic via a portal.  At a high level, the operation of PA support will be overseen by a Practice and Business Development Manager, who will supervise the day to day functioning and undertake a troubleshooting role.  The Practice and Business Development Manager will also take responsibility for client care and contact and be receptive to the reporting of any problems or suggestion as to how the service can be improved.

The clear objective of this approach is to provide a form of practice management which could be considered more efficient and appropriate in a rapidly changing market for legal services.  Whilst the traditional Chambers model will no doubt continue to satisfy many Barristers, as Lord Judge commented recently in Counsel magazine, it is vital that the Bar is prepared to consider and embrace new ways of working if the Bar is to maintain its traditional virtues of independence and quality.  There is no necessary correlation between the traditional structures and the traditional virtues; in fact the converse could be more easily argued.  The word “Chambers” refers only to a building and from that the traditional model reflects a building with the support, and staff structures, that go within a building.  The great opportunity for individuals in the digital age is that they do not need to encumber themselves with the expense necessary to maintain the traditional models.  The digital model with its much lower base costs creates opportunities for more expenditure in areas which really bring quality and allows much greater scope for independence.

Since I gave notice of my intention to work in this way, I have become aware of many rumours circulating of my likely approach to practise.  Whilst the repetition of such rumours rapidly becoming factual statements is one of the traditions of the Bar, I feel I have to disabuse any of you who have chosen to believe the following: First, that I am easing off, downsizing, semi-retiring etc.  Whilst I have to admit to having attained a reasonable age, Mr Osborne has it in mind that I should work for many years to come.  I am very happy to go along with him on this issue at least.  I am enjoying my work more than ever.  I cannot imagine anything better than being a Barrister.  I believe that you can only properly practise the Bar if you do so with energy and passion.  If I ever felt I was losing that energy and passion, I would not ease off or anything like, but out of respect to myself and others, stop completely.  I therefore intend to practise for the foreseeable future, to at least the same level and with the same standards I have tried to display throughout my career.  If you were in any doubt about this, you should know that Claire Labio has agreed to work as the Practice and Business Development Manager of Complete Counsel and I am sure I will be made rapidly aware of a slipping in my standards or approach.

Second, that I am practising from my garden shed.  There are a number of reasons why this is not the case, not least because there is no heat, light or electricity in the garden shed.  It is true that I, like many Barristers, probably a clear majority, now work increasingly remotely, in particular from my study at home.  However, in practical terms given the use of IT, there is no difference between working in a room in Chambers or in a study at home.  The Complete Counsel model, I think, best suits the working life of a specialist civil counsel such as myself, where a significant amount of work relates to document production, where I am capable of working largely remotely, and where my conference and court work is peripatetic.

Thirdly, that this is a cost-cutting exercise.  It is true that the basic support service at Complete Counsel operates at a fraction of the cost of being a member of a traditional chambers.  However, it is not my intention that my overall level of expenditure shall reduce.  Rather I intend to deploy more resource into areas which will transmit better value to my clients.  I will continue to employ a paralegal, for support, in particular, in relation to research.  The services of a paralegal are not charged directly to clients, but are subsumed within my own fees.  I will continue to provide education and training, in particular by participating in the web-based project Pro-VIDE Law.  I intend to develop and extend my activities in these respects.

It is also planned that Complete Counsel will involve a parallel project, Complete Mediation, whereby mediation services will be offered, in particular in relation to clinical negligence.  The move towards mediation is inevitable and we intend to offer access to skilled mediators with vast experience of litigation.

This is therefore a new approach, but clearly necessary in this challenging and fast developing market for legal services.  The project will have to be considered experimental in its first few months and I would encourage all those who instruct through Complete Counsel to offer such help and advice as they feel appropriate.  There is nothing that we do not want to hear.  The service will initially be most suited to civil barristers in the North West of England.  If you are interested, or would like to know more, please email on charles.feeny@completecounsel.co.uk.