As a proponent of video as a means of conveying messages, it is remiss of me not to have drawn your attention to one which features His Honour Judge Simon Brown QC and me. It was made by Kina Kim of PivotalDiscovery.com at the Masters conference and is included in the ever-growing list of short videos which PivotalDiscovery.com is collecting. You can see it on the PivotalDiscovery site or on YouTube.

There is no room for artifice in a Kina Kim production. This is the second one I have done for her (see Big Reception for Marean-Dale video) and the approach this time was the same as at ILTA. With little warning and no time for preparation, you are hauled off to a corner and away you go. It makes for spontaneity, if nothing else, and is infinitely preferable to the painful preparations which one must make if given notice.

Judge Brown and I were at the Masters Conference, together with Senior Master Whitaker, in order to carry forward the exchange of ideas between the UK and the US on the wider subject of efficient case management as well as e-Disclosure. As I say in the interview, we had just finished listening to US Magistrate Judge John Facciola, whose words on competence and cooperation are as applicable in the UK as on his home territory. Judge Brown had, only the previous week, delivered the judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) in which the successful defendant lost half of the costs which would otherwise be recoverable on grounds very similar to those which Judge Facciola had talked about in the context of sanctions.

Judge Facciola’s talk had been primarily about sanctions and about the continuum which runs from incompetence through negligence and gross negligence to wilful misconduct and on to bad faith. We do not have sanctions in the UK courts. The primary downside which follows from poor conduct of any kind is to be penalised in costs reflecting the loss caused to opponents. The Earles case, as Judge Brown explains in the video, was a good example of this happening in practice, and a salutary one.

My thanks to Kina Kim and PivotalDiscovery for this opportunity to take a different way to convey our messages.

There are a couple of points about the production. One is that the applause which you hear half-way through was not, alas, for us but for a conference session coming to an end round the corner. The other is yet another lesson learned from experience. Standing under a downlighter whilst being interviewed on video is a bad idea, as appears from my impression of a Victorian undertaker. I feel I should burst into song like Mr Sowerberry in Oliver! (picture Barry Humphries in the original 1960 stage production or Leonard Rossiter in the film)

Visualise the earth descending on you clod by clod.
You can’t come back when you’re buried
Underneath the sod.
We will not reduce our prices.
Keep your vices usual.
That’s your funeral
Not our funeral
That’s your funeral.

We don’t harbour thoughts macabre
There’s no need to frown
In the end we’ll either burn you up or nail you down
We love coughs and wheezes
And diseases called incurable.
That’s your funeral.
No one else’s funeral.
That’s your funeral

There is a message in there somewhere for those who do not get their act together – if you get hit for costs, outed as incompetent or abandoned by your clients, that’s your funeral, and the line about not reducing prices ties in nicely with a Law.Com article of today about hourly rates  – but it was not my intention to convey it so graphically on video.

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