A company of doughty SCL members entered the trenches of Baker & McKenzie’s 6th floor to hear tales of from the frontline of IT Dispute Resolution. The seminar, chaired by Harry Small of the host firm, sought to pool the anecdotal experience of three seasoned campaigners to provide insights in to which tactics and strategies work and what misfires.
Nick Gardiner of Herbert Smith fired the opening salvo with a collection of hard won tales and tips on the trial itself, in particular the importance of the selecting, and preparing, the right expert witness. This was to be a recurrent theme of the night. He emphasised the need to do the homework on your own witness as well as that of the other side, reminding the audience of an expert witness in a construction case who was roundly ignored by Mr Justice Laddie after it emerged that he had previously written an article elaborately comparing the expert witness to a three card trickster. He cautioned against appointing the over enthusiastic expert after recalling the bitter experience of when his properly briefed witness responding to a question about his report by pondering aloud “What is a network?” and then rambling on ad infinitum about optic fibres. This experience made him realise that it may be better to use an expert who is confident in the witness box (a sentiment echoed by later speakers) rather than one who is the best in the field and also not to fear preparing the witness for fear of coaching them.
Simon Henderson of 4 Pump Court followed up by considering when an injunction might be sought to prevent a supplier leaving a customer in the lurch. One of the crucial questions the courts will consider when faced with such an application is which route will give rise to the least risk of injustice. They will also factor in the reality that, in IT disputes, the parties will probably have to continue to work together. The authorities, then, reflect a reluctance to grant injunctions given that they might impose an unwarranted equitable regime and also because of the problems of policing: nobody wants to have to return to court every other day to ask whether what they plan to do will breach the order. Yet each application is heavily fact specific and the judges have discretion so Simon contended that not all applications are doomed to fail. Indeed he is looking forward to some interesting case law developing on the topic in the next few years.
David Halliday mopped up musing on “how did we get here in the first place?” Can better contract management prevent the undermining of trust and what are the warning signals that the battle lines are being drawn? He gave the graphic example of two senior executives from a supplier and a customer who, during a rocky period in the project, bumped into each other in a supermarket car park and sorted out the problem there and then. David calls this “golf course negotiation” and it raises some typically lawyerish thoughts: was the meeting without prejudice? Did they shake hands? And while the outcome might have worked it would be much harder to rebuild trust if the initiative subsequently failed. He then looked at the options for dispute escalation and ADR, setting out the common reasons why parties shy away from confronting the fact that there is a problem. He is constantly surprised at how people are surprised that projects get bogged down; early confrontation of the causes, even by invoking dispute resolution procedures, can successfully crystallise the issues and need not be seen as a sign of tactical weakness.
Yet the underlying theme, echoed by all three speakers and the chair, is that getting to trial is now an increasingly unwanted outcome. Nick mentioned that he has a 5-6 year PQE colleague who has never experienced the sharp end. Instead, mediation, ADR and just practical compromise are the norm. This is partly down to the need for the parties to continue working together and partly because the technical complexities make it difficult to be certain who is in the right, making a trial a costly risk. Which form of mediation should be used is still a matter of debate, as evidenced by the ensuing Q&A session. The “rough justice” of adjudication did not seem to be favoured by delegates and speakers, but other forms of expert determination suffer from the scarcity of good experts. What seems certain though is that the young IT lawyer’s anecdotes will, in the future, be those of the peacekeeper not the war monger.
The seminar has been recorded and so will be available shortly to all members on this website. CPD will also be available for the podcast on answering relevant questions.
David Chaplin is an SCL member and director of Bath Publishing, online law publishers.
