It is not often that you look back over a week or so and know that you will always remember it. Eight days ago, we had the same government as we had had for 13 years; now, not only the government but the face of politics has changed for ever. After years with almost no e-disclosure cases at all, two were reported last week which we will refer to for some time. I have done two sessions with lawyers from which I have emerged confident that the messages are striking home. At a more mundane level, all next week’s conference sessions now have plans or scripts and the travel arrangements for the next round of conferences are falling into place, or were before ash and strikes threatened. Last Thursday seems a world away.
If I say that I sat through the night watching the election in order to watch a woman cry you will doubtless think me harsh, but there will be many from Jacqui Smith’s own party who will have got some satisfaction from her fall. Curiously, it was not the £116,000 she pocketed by false claims about her “second home” but the 88 pence bath plug and the accidental claim for her husband’s porn films which condemned her on the expenses front, as well as her graceless and grudging apology to Parliament. If she had been merely useless as Home Secretary, she would not have been the first, but it was in her time as Home Secretary that the relationship between police and public changed to the detriment of both. The guardians of our peace have become simultaneously feared and despised as arbitrary agents of repression. This is largely down to Smith, and it was a pleasure to watch her face as her defeat was announced. Ed Balls, alas, survived, but there is always the hope that his continued presence in the Parliamentary Labour Party will help to make it unelectable for a generation.
It was enjoyable, too, to watch Gordon Brown chewing the ashes of his defeat for a few days. This is not a purely political reaction on my part – I loathed Tony Blair, but what condemned Brown in my eyes was the way he undermined Blair for ten years before stabbing him in the back. I doubt I would have liked what Blair could have achieved otherwise, but the result of his Chancellor’s treachery was a wasted decade.
We get the government we deserve, perhaps. The undignified sight of Nick Clegg’s Liberal Democrats whoring their way up and down Whitehall (“knock three times and ask for Nicki” as the Times cartoon had it) before ditching their principles and selling themselves to the highest bidder is somehow symbolic of our reduced status in the world. Three weeks ago, David Cameron was asked what his favourite joke was. “Nick Clegg”, he said. Now Clegg is his Deputy Prime Minister. The only consolation for those of us interested in the law is that the robust Kenneth Clarke becomes Justice Secretary in place of the devious trimmer Jack Straw. Civil justice will get no funding out of Clarke – what will? – but at least our liberties are safe in his hands.
I turned my back on it all to go to Leeds for the weekend. As I reached the city, Dominic Regan left it, having spent the day with one of those good regional firms with which, I have predicted, the future lies. It was not, I think, chance which dictated that the same firm has been talking to me about e-disclosure at the same time as having Dominic in to talk on other subjects. Dominic and I did our first joint presentation later in the week. That was in London, but our ambition is to take the same format to every large regional city, hoping to incite an approach to litigation which will alter the balance between the big London firms and the regions. It is not just politics which is facing big changes.
We were in Leeds for two musical events. Eldest son Charlie’s band, The Phoenix Fall, was playing its last gig in Leeds before its members decamp to London. The following night, second son Tom was playing the Pirate King in a university production of the Pirates of Penzance – “magnificently over the top” as a student review put it. My mother came too, perhaps the first 80-year-old to spend one evening in a grimy pub with a deafening student band and the next in a student bar.
On Monday I spoke to a city law firm’s litigation department with a one hour lunchtime agenda of Jackson, practice direction, questionnaire and the recent cases. For the first time, I needed two slides to list the cases. Even as I was speaking, a message arrived with a tip-off about the latest e-disclosure disaster, the OFT’s abandonment of the BA-Virgin price-fixing prosecution in mid-trial because they had only just accessed thousands of e-mails from a corrupted file. We do not yet know who is to blame for this debacle, but that does not really matter: if one is looking for arguments in favour of the ESI Questionnaire, and for its use beyond the civil jurisdiction for which it was drafted, this late production of key documents – one of them appeared to undermine the whole prosecution – is as good an argument as one could want.
Wednesday brought the Regan-Dale seminar at Ely Place Chambers, in which we were ably supported by 7Safe, Legal Inc and FTI Technology, to say nothing of Senior Master Whitaker, whose unadvertised presence rounded out an already interesting afternoon. Thursday took me to FTI Consulting’s party at the National Portrait Gallery. I took two calls, neither of which I can tell you about, which are straws in the wind for e-disclosure activity at the opposite extremes of the e-disclosure market, from state policy down to small regional firms.
In between, I have published eleven articles – the interesting stuff keeps rolling in, and whilst some of the articles were on the agenda anyway, I was not expecting the OFT’s splendid e-disclosure cock up, the announcement of Australian e-discovery reforms or the publication of the appeal in Fiddes v Channel 4, each of which merited an article. We finalised the agendas for the various sessions which I am doing at IQPC’s Summit next week, and I wrote my annual e-disclosure play for performance by five judges at the end of the conference. As I will say in the introduction, some of the events of the past year defy parody – it would not have entered my head to invent some of the things which I have been able to copy and paste straight out of the judgments.
Not the least of the week’s tasks was organising the foreign trips which begin immediately after IQPC, neatly coinciding with two blasts from the past – the Icelandic volcano and the 1970s-style determination of two warring union leaders to bring BA down in pursuit of their personal ambitions. Gordon Brown’s Labour government was rather inhibited in its stance on this by the fact that most of its election funding came from the relevant union. Will the new Con-Dem Administration do any better in facing down the unions? I suspect that their influence over that will be no greater than their influence over the volcano.