REVIEWED BY RICHARD HARRISON
Richard Harrison is a litigation partner at Laytons and can be contacted on 0171 842 8000.
Readers of this magazine will not expect me to explain the background. Their clients and colleagues will, however, expect from them an ability (beyond that displayed by much computer code in systems and embedded chips) to deal with relevant issues arising from the millennial date changes.
Here are the first two books to help in the process. One is a solo work by Susan Singleton. The other is a collaborative effort from a law firm specialising in the area which had a hand in the BSI definition of Year 2000 conformity requirements and which has enlisted a cast of tens to contribute.
Any guidelines and initiative in this novel area is welcome and both of these enterprising works, simply because they have been written and published, are valuable contributions. So often, half the battle in legal research is getting an inspirational spark. But if you had to recommend one of them for your library, which would it be? The answer is, of course, it depends.
As the accompanying table shows, both books cover an impressive range of topics. On the whole, Singleton probably deals with a greater breadth of issues. However, when both cover the same topics, Halberstam tends to go into greater depth: the book contains more detailed legal analysis and reference although it is not always specifically Y2K related. The editors of Halberstam attempt to maintain focus with a case study about the fictitious `Thrombodirect plc’ but this is only partially successful.
An understanding of the technical issues will, in my view, be the key to approaching most of the legal problems. For those seeking a basic introduction, Halberstam contains a very helpful summary by Caroline Bramley of Cambridgeshire County Council. Singleton does not set out to cover the area. We all need to understand more about how the date functionalities of different systems interact with each other when connected. What will be at the root of any litigation are detailed factual issues of causation rather than determinations of whether software constitutes the supply of goods or services or precisely when, in the early mid-1990s, it was reasonable to appreciate the potential problem with six-digit dates.
Singleton has a highly practical and helpful approach to the issues of questionnaires, renegotiating contracts, excluding liability and dealing with questionnaires. She also has useful sections on the retention of consultants and outsourcing contracts. She does not purport to be a contentious lawyer and I hope she will forgive me when I say that the section on litigious aspects is not particularly enlightening and the precedent letter before action is not going to assist anybody.
Halberstam’s section on dispute resolution shows different faults: it attempts to cover everything in a perfunctory way without being specifically Y2K relevant. It nevertheless contains a very useful survey on standstill agreements. These must be a practical solution to the need to work on prevention rather than litigation, whilst at the same time dealing with limitation problems. I do not share the authors’ pessimism on their efficacy; nor, given the present Woolf-inspired culture, do I share their optimism that the courts will automatically grant extensions of time for the service of Statements of Claim.
Singleton’s style and approach is clear and direct and I would recommend the book for that reason. The chapter headings from the Book of Revelation must have been fun to compile but we could do without them (the year 2000 has absolutely no religious significance whatsoever). However she takes the opportunity for consistency of approach which is not available to the Halberstam Elias team. Their work is patchier and hangs together less well despite the attempt at unity imposed by the case study. Singleton is the book which I would rather take to a desert island.
Those who want a well written commercial overview of a slightly wider range of relevant issues and one which is more pervaded by the practical solutions to potential Y2K problems should also go for the Singleton book. However, the lawyer who just wants the necessary spark of inspiration and more specific references, should go for Halberstam Elias. It may not have all the answers or cover all the issues, but it contains more `lawyers’ law’ which can be used as the starting point for further review of the issues, even if some of that material is not Y2K specific.
| ||||||||||||||||||||||||||||||||||||||||||||||||
But, given the importance of the issues and the need to address new problems creatively, any lawyer with more than a passing need to advice clients on IT issues should really have access to both.
I should nevertheless mention a further point of principle. Singleton is a hard cover volume of 180 pages. Sixty-six of those pages are appendices. The layout is easy to read but it seems to have been designed to create bulk and so achieve `book’ status. The author appears to have conceived it as, and modestly refers to it as, a `special report’ but the publishers are trying to market it as something more. There is some valuable additional material but it would have suited a monograph or pamphlet format with some of the makeweight aspects removed. The disk which accompanies it is in my view unnecessary: the precedents are illustrative only and do not have the value of the author’s other material. The book costs £99.
By contrast, Halberstam Elias, whilst also containing makeweight aspects, has much more substantial legal material. Butterworths have produced a paperback at less than half the price (£45). The present speculative nature of legal analysis of this topic does not merit a hardback. I do not pretend to understand the economics of legal publishing, but I do not think that Singleton’s publishers, Sweet & Maxwell, have covered themselves with glory in the value for money stakes. Their book is quite simply too expensive.
I make an additional observation: I suspect that the really interesting legal problems which the millennial date changes will throw up are addressed in neither of these books and no lawyer has yet contemplated them. It does not make these books any less worthwhile.
