Wednesday, January 31, 2007

Surfers and the environment

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

Surfers’ connection with the environment comes primarily from the fact that they spend so many hours staring out on its vastness. Contemplating its forces. Harnessing its power. As Matt Warshaw says in Maverick’s: The Story of Big-Wave Surfing, “Surfing expresses ... a pure yearning for visceral, physical contact with the natural world.” However, perhaps it’s something more than this. Taking a perspective from a breaking wave. In geometry, mathematicians describe a straight line which touches the edge of a curve at a particular point as a tangent. Perhaps the surfboard is the tangent on the edge of the world. In Caught Inside, Daniel Daune talks about the Ohlone, the indigenous people of Northern California who have lived in California for over 1,500 years. He says:

“Malcolm Margolin, author of The Ohlone Way, writes that among the little remaining of their culture is a line from a song. The line makes perfect sense to me as I surf here before so much space: dancing on the brink of the world.”

Dancing on the brink of the world. The surfer as the point of intersection between the world and the tangent line of the surfboard. The surfer balancing on the top of the world. Surveying all before him. Perhaps there is even more. Surfers not only standing on top of the world but also at the intersection of the land and the sea as well as that between the sea and the sky. Fiona Capp in That Oceanic Feeling:

“Entranced by that mythical line where the sea meets the sky, Tennyson’s Ulysses regarded all experience as ‘an arch wherethrough gleams that untravelled world whose margin fades for ever and for ever when I move’.

Surfers standing at the intersection of the world. The portal or meeting place of nature’s forces. Maybe it’s all or none of these things. Whatever it is, there’s an essence which continues to elude just as when we grasp at the ocean we are left only with its salty residue. Yet for all that we may romanticize nature, we must never forget its dangers, increasingly evident in the environmental disasters which are hitting our planet. In Cannery Row, John Steinbeck points to the dangers of over-romanticising nature if one is not careful:

“Here a crab tears a leg from his brother…Then the creeping murderer the octopus, steals out, slowly, softly, moving like a gray mist, pretending to be a bit of weed, now a rock, now a lump of decaying meat while its evil goat eyes watch coldly.”

It is the shadow to the light. A reminder of nature’s harsh realities. Just as the crab tears the leg in the microcosm of the ocean so a hurricane can tear away a city. It is something which can affect us all and for which we are all responsible. Not just a problem which others need to solve. Surfers as much as anyone else. They drive many miles to the ocean, often in large vans or with a board on their roof adding to their carbon footprint. They fly all over the world in search of waves and when they get there they put on wetsuits and paddle out on boards which cannot be recycled.

It is with this in mind that I recommend taking a look at Drift Magazine which is the first digital only surf magazine. They are deeply committed to environmental causes and are actively looking at ways of minimising surfing's impact on the environment, some of which is through magaznes which are often not recycled. They have also just launched a Surf Blog Directory which as far as I am aware is the first of its kind for a surf magazine.

The top photograph was taken by and is copyright of Dr Michelle Tempest.

Tuesday, January 30, 2007

The dangers of specialisation

By Aidan Ellis

This was the editorial for the PIBU Law Journal this month.

In my first week back after the New Year, I ended up in a Magistrates Court in Essex making a plea in mitigation. This was a departure from the comfortable circuit of County Courts which are so familiar to the PI lawyer. The experience caused me to reflect on the merits of a general practice. The modern trend is for lawyers to specialise in narrow areas of law. Certainly in the City, true general practitioners are becoming endangered species. In some respects this is a loss, both to the profession and to the public.

Of course, each area of law has its own peculiarities. Some of these cannot be gleaned from text books. This is where the specialist holds the advantage. An example of this in PI law is the question of costs. The PI practitioner is used to arguing costs points at the end of each hearing. Hard experience means that we are familiar with which arguments are likely to succeed, and which will merely irritate the Judge. A newcomer to PI may lack this judgement. Moreover the law itself seems to get ever more specialised. Whole text books are written about subjects that until recently would only have merited a chapter in a more general text.

Nevertheless the core skills of the lawyer apply to any area of law. Legal research, drafting and most importantly communication are substantially the same in any branch of the law. There is no substitute for a broad range of experience in terms of being able to offer a complete service to clients. Often clients have legal problems that are not easily pigeonholed into a particular specialism. Personal injury itself may overlap with employment, health and safety or criminal law.

On a personal level, occasionally being thrust into the melee of an unfamiliar area of law is useful experience. It teaches, or perhaps reminds, how to research novel points swiftly and accurately. It is useful practice for the advocate to appear unflappable in any situation because even on home ground new points can occur.

Unfortunately these gentler benefits look set to be swamped by the onrushing tide of specialisation.

Sunday, January 28, 2007

Rob the Rubbish Poem

On Radio 4 yesterday morning, Fi Glover did a section on my Dad in his guise as Rob the Rubbish focusing on the effect that one man can make. It was followed up with the reading of this poem about my Dad by established poet Matt Harvey.

Rob the Rubbish…..My Hero

He isn’t where the glamour is
Or where the glitz and glitter is
He’s far away from cameras
Rob is where the litter is.
Whose litter?

Sound citizens like me and you
Who leave behind a residue
The wrapper of a snacky thing
Petroleum based packaging
An apple core, a bottle top
Look! Someone’s dropped their glottal stop
The stray lid off some Tupperware
The forelock of a Sherpa there
A crushed carton of apple juice

The landscape soaks up this abuse….
….Then Rob steps in

And…by picking up crisp packets, cling film and tin foil
Incongruous empties of Sprite and Drambui
He nurtures the flora and fauna and topsoil
And subtly recharges the Feng of its Shui

Rob is more than merely stoic
He’s verging on heroic
He’s a super-dooper human
Doing topographic grooming
He’s a man whose civic pride
Extends up every mountainside
He de-clutters their crevices
He’s even done Ben Nevis’s
The litter droppers’ nemesis -
Is he a hero? You decide….

It’s a dirty world - but Rob won’t let us ruin it
It’s a dirty job - we’re glad that Rob is doing it

Matt Harvey, Radio 4, 27th January 2007

Saturday, January 27, 2007

Weekly Review


ASBO Man Writes…
ASBO Man gives his views on the dispute between the Home Secretary and the judiciary. Read Charon QC.

Employment blawger speaks out
UK solicitor asks on his blog whether it is “Time to abolish employment law rights that are bad for UK plc?” Read Mark Ellis blog.

Want to buy a law firm?
Professor John Flood compares the Clementi reforms of the legal system to the financial deregulation Big Bang in the 1980s. Read John Flood’s blog.

Psychiatrist calls for boycott of magazines
Psychiatrist blogger calls for boycott of magazines carrying pictures of underweight models during Fashion Week. Read The Psychiatrist Blog.


Deal to make barrister fees binding
The Law Society and Bar Council have made an agreement that will make fee arrangements between solicitors and barristers contractually binding from October. See Legal Week.

Win for schoolboy rugby injury
The Court of Appeal approved a judgment in which a school was found for injuries caused in a rugby match when a teacher played someone over the age group. See BBC News.

Landmark sex-discrimination case defeated
Ex-City high-flyer loses £1million landmark claim for sex discrimination. See The Times.

Possibility of UK test case for YouTube
According to a report in The Times, increasing legal action in the States over piracy could set the scene for a test case against a British bootlegger. See The Times.

NHS charges recovery extended
Regulations came into force on Monday which extend the scheme allowing recovery of NHS charges following personal injury cases. See the Regulations.

Legal outsourcing deal
Law firm Fox Mandal Little makes legal outsourcing agreement with Hinduja TMT Ltd and UK-based Centric Consulting Ltd. See The Scotsman.

Patients’ opt-out from NHS computers
Information Commissioner told patients will have opportunity to refuse to allows details onto the new NHS records system. See Out-Law.


Mushroom victory
A high court judge has approved a Site of Scientific Interest in Wales which will protect 28 species of waxcap fungi. See BBC News.

Vicarious Liability and the Police

By Aidan Ellis

This article appeared in the Law Journal, January, 2007. Case references can be found there.

An off-duty policeman was sitting in his personal car outside the Sunrise Club. He was wearing a black jacket with his police uniform visible underneath. His warrant card was on show. A first aider came out of the club. He was having difficulties with the Claimant who was drunk. The first aider spotted the policeman and spoke to him. The policeman told the Claimant “I am the police”. He showed her his warrant card. He told the first aider that he would take the Claimant “to the police station”. Instead he took her to his home, where he raped and indecently assaulted her. On these facts, the High Court was asked to determine in N v Chief Constable of Merseyside whether the Chief Constable was vicariously liable for this assault.

The Law
The test for whether an employer is vicariously liable is: “was the employee’s tort so closely connected with his employment that it would be fair and just to hold his employer vicariously liable”. As a result, the courts have tended to resolve borderline cases by analysing the list of factors linking the tort with the employment. The weakness of this approach is that it hinges entirely on the detailed facts of a particular case: it is very difficult to offer useful general guidance. It also breeds uncertainty: there is scope for judges to disagree over whether the test is satisfied.

The Police Cases
Three recent police cases have been considered in the higher courts. The first was Weir v Bettison. In that case a police constable used a police van without authorisation to help his girlfriend move house. He told a local youth that he was a policeman. Later, he forcibly ejected the youth from the building, assaulted him and locked him in the police van. It was held by the Court of Appeal that from the moment he started to put the youth out of the building, the policeman was purporting to exercise police authority. Accordingly vicarious liability attached.
Two further cases were considered by the privy council on reference from the Caribbean. In Bernard v Attorney General of Jamaica, the Claimant was in the front of a queue to use a public telephone. A policeman demanded to use the phone. The Claimant declined. In the ensuing argument the policeman shot the Claimant and later arrested him for interfering with his duties as a policeman. Although the policeman was off duty vicarious liability was established because he purported to be on official business and this was evidenced by the subsequent arrest.
The opposite result was reached in Attorney General v Hartwell. In that case a policeman left his post, travelled some 27 miles to a bar where he spotted his ex-partner with another man. He fired four shots on a police revolver into the bar, injuring the Claimant who was simply a bystander. This was held to be a classic “frolic of his own”. The constable had consciously abandoned his police duties and embarked on a personal vendetta. Further he had never invoked his official authority.

In each of these cases the court undertook a detailed analysis of the facts and the factors connecting the tort to the employment. However, the touchstone for liability was whether the policeman was purporting to act in his official capacity at the time of the tort. In Bernard and Weir the policemen involved purported to be acting officially: both announced that they were police and purported to arrest the Claimants. By contrast in Hartwell the policeman did not invoke official authority.

This approach seems justified. Employing a person as a police officer invests them with power as authority figure. This creates a risk to the wider community that the officer will abuse that power. Therefore when the official power is abused, it is fair that the police should be liable. On the other hand, where the policeman simply acts as an ordinary person, there is no justification for the police to be liable.

N v Chief Constable of Merseyside
The result in N would therefore appear to be straightforward: the policeman purported to act in his official capacity (this is accepted at paragraph 33 of the judgement) therefore the police should be liable.

Nelson J thought differently. He concluded that the policeman was “on the prowl”. The evidence indicated that the assault was premeditated. In the circumstances, Nelson J held that he did not put himself on duty by offering to take the Claimant to the police station. The uniform and position of police officer merely offered him the opportunity to commit the tort. Therefore he ruled against the Claimant on vicarious liability.

Unfortunately the judgment raises difficult questions. Is there sufficient difference between the actions of the policemen in Weir and N to justify making the Chief Constable liable in one but not the other? Is it correct that planning and premeditation necessarily take an assault outside the scope of vicarious liability? Does it really matter that the police force does not generally owe a duty of care to members of the public?

The result for the present is this: it cannot be assumed that because a policeman purports to be acting in his official capacity, liability will necessarily follow. As in other areas of vicarious liability, one is left with the impression that general rules are unhelpful and it all depends on the facts.

Friday, January 26, 2007

Why Lawyers Should Surf

'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here. Specific expracts are linked to below. This is what the publishers say:

"Lawyers, Doctors and Nurses all need motivating. As with all intelligent human beings, the best motivation is self-motivation. After many years without an original and empathetic book, we now have a strikingly original one written for practitioners. With the metaphor of surfing and the ocean flowing throughout, the authors have drawn on their collective experience and brought together not only some powerful psychological tools but a beautiful collection of ideas and images which will continue to inspire long after the first reading.

The first section deals with the power of the mind and examines visualizations, underlying beliefs and one’s own internal language. It then goes on to examine communication skills ranging from the building of rapport and body language to advocacy techniques. This is followed by a section on goal setting, values and ways in which positive changes can be made fast and effectively in all areas of one’s life. Finally, there is a section on work/life balance focusing on various aspects of health and leisure. Why Lawyers Should Surf is aimed at lawyers, legal students, staff working in legal offices and anyone interested in improving their lot and living their lives with passion. In addition, Why Doctors Should Surf is also aimed at doctors, medical students, nurses, health practitioners."

For specific extracts, click on the following links:

Metaphor of surfing
Learning from mistakes
Power of words
Taking risks
Power of metaphor
Emotions: heartbeat of soul
Limitations of goal-setting
Concepts of time
Ideas of happiness
Effect of natural world
Role of silence
Environment: dancing on the brink of the world
Our relationship to the ocean
Why Lawyers are in danger

Thursday, January 25, 2007

Rugby case

Yesterday judgment was handed down by the Court of Appeal in a case in which I appeared called Mountford v Newlands School in which a school was found vicariously liable for injuries caused in a rugby match when a teacher played someone over the age group for the match. Since the Bar Council Code of Conduct stipulates that I cannot express a personal opinion upon the facts or issues arising in a case in which I have appeared (save in an educational or academic context), I shall refrain but instead refer simply to the judgment itself which I have put online here. The photo is of my friend Richard Pool-Jones playing for England.

Wednesday, January 24, 2007

Riding the Magic Carpet (part 2)

This review follows an earlier different review in Surfer's Path Magazine. 'Riding the Magic Carpet' is by Tom Anderson and is publishing by Summersdale Publishing.

When Tom Curren first rode the right hand point break at Jeffrey’s Bay in South Africa, the world watched in awe. For the author it symbolised everything that was going on at the time. The ending of tyranny, the ride to freedom, the opening up of a new world. From that moment on, the image of that wave entered Tom Anderson’s mind and transformed itself in his imagination. Not only did it represent events half way across the world. It started to symbolise the ending of the petty tyrannies which he faced each day at his local school in South Wales.

As the years went by, the yearning to experience the wave for real took on greater significance until it became something of an obession. Every surf trip was undertaken with a justification at least in the back of his mind that it would take him one step closer to being able to paddle out at J-Bay. To some extent, it became a symbol of the author’s ambition, an end in itself. Ahab and his whale.

His travels took him from the beach breaks of France to the Orkneys and Thurso East and eventually further afield to Sri Lanka and Uluwatu. As is the case with all epic adventures, the hero accidentally stumbled upon self-enlightenment triggered most poigntantly through suffering. First it comes at the culmination of a number of frustrating trips to Mundaka where the wave just refuses to awaken. Then when finally it rises from its slumber the author’s board breaks. Worse still he later breaks his leg and has to endure a surf trip taking in Pavones in Costa Rica without even being able to paddle out. Perhaps it was a fear of being unable to surf. Or perhaps it was a deeper fear that if he couldn’t surf, he couldn’t pursue his ambition which had all been tied into J-Bay over the years.

As he went through the frustration of having to watch his girlfriend enjoy the waves, he slowly started to let go of his own ambition and appreciate the value of teaching, passing on. It is described almost as an epiphany and with it the cloud of ambition appeared slowly to lift. As it did, he reflected on his father’s generation and their own lack of selfishness: “These patient characters had sat there for hours on end, without needing an injury to keep them from wanting to surf themselves, filming kids for no other reason than handing the gift of wave knowledge on through the generations.”

Perhaps it was because he had actually let go of his ambition for its own sake, of his need for J-Bay, that he was eventually rewarded with the waves of which he had dreamed. Perhaps he would have made it anyway. Either way, it is this journey of enlightenment which takes the book from a very readable and entertaining travel book to something deeper. Yet if it is allegorical, it is with a touch light enough to carry it. No need for horror or a Mr Kurz in the jungle here. It’s from the simplicity of the everyday coupled with classic surf adventure that it derives its power. Definitely up there with the best in surf travel literature.

Tuesday, January 23, 2007

What a waste

Finally a national newspaper has started a campaign to put an end to unnecessary packaging of goods. The Independent's campaign has highlighted a problem which is getting worse. Junior environment minister Ben Bradshaw suggested consumers who do not want the waste that comes with supermarket produce can tear it off, leave it on the counter, and let the staff deal with it. More recently he has suggested that those who think their shops are wilfully adding to the volume of waste should report them to their local council, who have a responsibility for cutting pollution. What we need to complement any form of direct action by consumers is more stringent legislation banning unnecessary packaging. Perhaps it is something which the next MP to win the ballot to bring a Private Member's Bill before Parliament could put forward, possibly even with cross-party support.

Sunday, January 21, 2007


Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

One of the most universally accepted factors connected with happiness is that of nature in all its wildness. Whether this is because it is a revelation of God or because it is simply an escape from the noise of the towns is a matter of opinion. In St. Exubery’s words about flying, “it releases [one’s] mind from the tyranny of petty things.” Anne Morrow Lindbergh in Gift from the Sea said:

“Rollers on the beach, wind in the pines, the slow flapping of herons across sand dunes, drown out the hectic rhythms of city and suburb, time tables and schedules. One falls under their spell, relaxes, stretches out prone. One becomes, in fact, like the element on which one lies, flattened by the sea; bare, open, empty as the beach, erased by today’s tides of all yesterday’s scribblings.”

A phrase we often use is that of feeding the soul. We look out to sea and the feeling is almost visceral. Like a filling up of the spiritual tank. In On Whales, Roger Payne describes it in this way:

“I believe there is something akin to a substance that flows into one’s being from the wild that cannot be seen or measured…but which is nevertheless very real and very important to mental well-being. It is a sort of celestial phlogiston, which comes from flowers and vast beaches and deserts and oceans populated by species other than our own. This substance restores souls and sets minds straight, and rebuilds moralities, and cleans up the wrack and wreck and rust that we generate by endlessly rubbing against our fellow humans. It is the substance that is drained entirely out of city dwellers until they are a hollow husk of the full ripe ear of their pastoral ancestors. In this husklike state, urban humanity falls prey to such things as heart attacks, hypertension, stroke, and addictions to violence, drugs, and God knows what – a syndrome I’ll call urbanicide. It is a kind of self-destruction by reason of nervousness, an aggressive state that is sometimes hastened by disconnection from the fountain of nature.”

The picture above is of my Dad and it has appeared in both The Independent and The Daily Telegraph newspapers in articles about him in his role as Rob the Rubbish.

Saturday, January 20, 2007

A game of tag

All things in the real world eventually get transmuted into a virtual activity at some point or other, surfing being the classic. Now it seems that the childhood game of tag has been brought to the blogosphere with a massive game of blog-tagging going on. This particular one is called a"meme-tagging", a meme being literally a unit of cultural information transferable from one mind to another. It basically involves a blogger, on being tagged, having to list five things on his blog that others might not know about him. Thanks to being tagged by my friend Charon QC, I offer these:

1. I am a qualified football referee.

2. My Dad has become famous as Rob the Rubbish.

3. I used to work as a baggage boy in Butlins in Minehead and an agency nurse around Cambridge, neither of which beat Charon QC's admission that he worked as a part-time gravedigger.

4. My favourite food places in London are: Y Ming, Salt Yard, Fuzzy's Grub, Hummus Bros, Leon and Rock and a Sole Plaice.

5. My main surfboard is a 9'6"yellow Takayama board nick-named "The Banana Split".

Now I think it's my turn to tag which I do so to: Michelle, Corporate Blawg, Pupilblogger, Professor John Flood and Paula the Surf Mum.

Friday, January 19, 2007

Saved by the surf

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

The other day I quoted leading whale expert Roger Payne who argued in Among Whales that these great mammals would "enter our minds, and how once inside they would metastasize and diffuse throughout the whole engine of human ingenuity" and eventually bring us back to nature and ourselves. On reflection, another image which has entered our minds and diffused throughout the same engine of human ingenuity is that of surfing itself in relation to the internet. It provided a perfect description for the freedom and movement which the information superhighway could provide not only in the sharing of information but also in connecting communities together, just as the oceans flow from one to another.

Some surf writers have railed at the idea that non-surfers should be acquiring this word and particularly for something which couldn’t on the face of it be further from paddling out into the sea, perhaps most articulately by Andy Martin as far back as 1995. Writing in The Independent, he said in particular:

"'Surfing the Net' is not just a piece of innocent poeticlicence. There is a sinister undertow, a clear danger ofhard- won lived experience being swept away by pixels...the sinister implicationof terminal terminology is that 'There is nothing beyondthe Web.' Being is being on the Net...Let's compromise. I promise not to lose my cool everytime you surf the Net on the condition that if you slipand press the wrong key you download death in amillion-volt wipeout."

However, just as whales may ultimately save us by firing up visions of the natural world, so it is with surfing. Computer hacks the world over may be using the word without much thought but underneath they are stoking the fires of their imagination. It is the ocean in the human soul which is awakened by these gentle breezes. Our deeper selves. They have always been in us. Whales. Surfing. They are the routes within. The means.

CPD Webinars

I have just launched a company with fellow barrister Daniel Barnett called CPD Webinars. It provides online video seminars (webinars) for solicitors and barristers to get their CPD points. This follows a webinar that Daniel and I delivered in October which had around 1,000 viewers (which you can get to see here for free). There's an incredible list of speakers for the webinars which will be broadcast monthly from March. One of the things I particularly like about it is that it will mean that it will immediately reduce the carbon footprint of lawyers with no more travel to lectures or bulky handouts once you get there. It will also mean that they don't have to waste travel time out of the office.

In addition, solicitors will no longer have to pay extra for each person in their office. There's a one-off fee which allows an unlimited number of people to watch it in each office. For six lectures (each providing 2 CPD hours) in either personal injury or employment law, the price for the whole office is £625 (if readers of this blog type in the discount code "MTKTV" in the "Where did you hear about us" box). For those offices that want both subjects (ie twenty-four hours of CPD for the whole office) there is another discounted price of £800.

Save the Waves

Every now and again, a cause comes along which is not only important in itself but has extra significance because it symbolises something bigger. This is the case with the plans approved by the New Zealand government which threaten wildlife, Iwi tribal archaelogical remains and also one of the world's best surf spots known as Whangamata Bar on the North Island. The plans are to build a private marina over the Moanaanuanu Estuary. It will hold a select 205 berths which will expand over 4 hectares of coastal marine zone, 300 meters of breakwater structures will be constructed, and 167,000 cubic meters of dredging will occur for both the marina basin and the channel. The dredged sand will be dumped atop a natural salt-marsh covering 1.4 hectares. The estuary itself is home to many species of fish, shellfish, seabirds, Mangroves, Eel grass, salt-marshes, and the natural sand bar which will immediately be threatened, as will the nearby surf spot, once described by surf legend Gerry Lopez as "the gem of the Pacific". The plans also anticipate bulldozing archaelogical remains as there are many Iwi tribal areas in the Waikato Region.

Minister of Conservation Hon. Chris Carter rejected the Marina application, but the High Court of Appeal sent it back for re-review. In October 2006, Carter assigned the Marina application to Minister of Environment Hon. Benson Pope. After meeting with members of the New Zealand Parliament in November 2006, led by Nick Smith of the National Party, Pope approved of the Marina last month in December. Save the Waves Coalition is leading an international campaign to support the New Zealand Green Party, Maori Party, local iwi people and beachgoers in their opposition to the project. This is something to which we can all contribute. Bloggers can post this information and everyone can visit Save the Waves' website and fill out the form for voicing your opposition. It affects not only this particular region but also those others which are already under threat or may be so in the future. If we make a stand now we can show not only the New Zealand government but those around the world that issues affecting the natural world are no longer merely local issues and that they must take responsibility internationally for their actions. We are all in this together.

Wednesday, January 17, 2007

Surfers Healing

Inspiration comes from across the Atlantic in the form of Israel and Danielle Paskowitz who have founded an organisation called Surfers Healing. Their son, Isaiah, was diagnosed with autism at the age of three. Like many autistic children, he often suffered from sensory overload-- simple sensations could overwhelm him. The ocean was the one place where he seemed to find respite. A former competitive surfer, Israel hit upon an idea. He took Isaiah out surfing by putting him on the front of his surfboard and having him steer from the back. It apparently had a profound impact on Isaiah. Following this success, Israel and Danielle decided they wanted to share this unique therapy with other autistic children. They began to host day camps at the beach where autistic children and their families could be exposed to a completely new experience of surfing. The heart-warming stories which are told on their site provide inspiration for us all. To help others benefit from this unique therapy, you can donate here.

Tuesday, January 16, 2007

Wipeouts: Portals of Discovery

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

Surfers know their place in the ocean. They know that however good they are, the waves can sometimes be mightier. Wiping out is as much a part of surfing as gliding along the face of a perfect wave. This humility in the face of such enormous forces means that surfers are prepared for the worst. They know the value of the English proverb that “A smooth sea never made a skilled mariner”. Or Confucius, “Our greatest glory is not in never falling, but in rising every time we fall” or Dr Martin Luther King, Jr, “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands in times of challenge and controversy.”

This was vividly illustrated by Allan C. Weisbecker in In Search of Captain Zero when he describes experiencing his worst wipeout in thirty years of surfing. The next day, still dripping blood from his wounds from the day before he paddled out once again into the vicious reef break, describing not only the usual fear but always second time around, the “fear of fear”. It was in facing this down and committing to continue his odyssey which showed his character and ultimately gained the respect of the local surf crew.

Ernest Hemingway knew this when he said that, “The world breaks everyone and afterward some are strong at the broken places...” Rather than wipeouts being seen as failures, they are quite properly seen as the times when most is learnt by a surfer, James Joyce’s “portals of discovery”. Perhaps they got into the wave just a little too late and went ‘over the falls’. Or perhaps they were leaning too far forward on take off and the nose pitched into the face of the wave sending them head over heels. Maybe they just misjudged the size of the wave. Whatever it was, the experience always brings another small distinction which can be made. It is the full collection of these distinctions or lessons which ultimately lead to expertise. As Buckminster Fuller once wrote, “Whatever humans have learned had to be learned as a consequence of trial and error experience. Humans have learned through mistakes.”

Sunday, January 14, 2007

Goal-setting and commitment

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

Unlike most sports, there is no scientific criteria for distinguishing success for a surfer. Every surfer knows what it is but it’s often hard to put into words. In fact even to try to do so can potentially devalue it. Maybe it’s catching the longest ride, maybe it’s just getting out there and clearing your head of the day’s chores. Maybe it’s simply getting “stoked”. Whatever it is, it’s entirely subjective and the measurement for each person can even change from day to day. Surfing in this respect is more of an art than merely a sport. It is a means of self-expression. Of becoming something more and inspiring something deeper than merely the physical act. In Caught Inside, Daniel Duane says that:

“In all its talk and writing, one rarely hears of the act itself. Three hours of the greatest surf of your life amounts to just that – no yarn. One goes out, comes in, surfs in circles, and spends the vast bulk of the time floating, waiting, driving around…A surf session is then, a small occurrence outside the linear march of time; sure you ca catch your last wave, but rather than a natural conclusion to a well-lived tale, it will simply be the point at which the circle was snipped.”

With this in mind, it’s pretty impossible for surfers to set down an objective set of goals which they can daily work towards. Sure, they might want to improve their bottom turn or cut back. But ultimately what it boils down to for each surfer is whether they feel that sense of stoke by the end of the session. They therefore approach it with a completely flexible agenda, looking to make the best of every time they paddle out, not quite knowing what is going to happen.

Rather than being defined by goals, surfers are defined by commitment. Commitment to life in all its glory, to riding nature’s forces. Commitment to paddling out in all weathers, through all waves. Surfers learn pretty quickly that to suffer from “rubber arms” where you simply go through the motions without actually getting anywhere is unsustainable. Commitment to paddling hard into waves that can truly terrify. One of the skills which a surfer learns early on is that if you’re going to catch a wave you have to commit. The crucial moment comes just when it feels like you might not make it and you’re looking down at a sizeable drop. The need to make that extra paddle, to jump up and to take the drop.

Once again, this also provide a very powerful metaphor for life itself. Many motivational books often get pre-occupied with the act of goal setting and in the process perhaps lose some of the soul, forgetting what it is really about. The goals are merely a means to a deeper end. This is not to say that goal-setting is not a powerful tool. Simply that it must be seen in context and if the path towards those goals is not quite straight then this must be seen as part of the great adventure rather than a deviation from the course. Goals can be good but they can also put a straight-jacket on creativity. They should be seen as setting a direction for the journey rather than determining the end of the journey in advance. When this is set, the key is to take action and commit with all the heart of a surfer paddling for a wave.

Thursday, January 11, 2007

Lessons from big wave riders

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

In The Problem of Pain, C.S.Lewis said, “God whispers to us in our pleasures, speaks to us in our conscience, but shouts in our pains: It is His megaphone to rouse a deaf world”. Perhaps it’s this complicated relationship between insight and suffering which allows people to take even extreme risks. In The Book of Waves, Drew Kampion said:

“Picture a twister lying on its side in the ocean, pulling the water over and around itself like a ragged, raging blanket, its wider open end revealing a swirling hollowed-out cavern of spitting, hissing power, rolling like a giant tunnel toward the shore. Imagine the kind of man who’d want to put himself in the eye of this thundering killer, who – like a matador to an avalanche – would wish to stand coolly in the raging glass fist, while time grinds nearly to a halt and where the secrets of immortality are whispered to those who have ears to hear.”

Big waves as the forces of life itself. Sometimes bearing down, at other times careering us forward as if floating on air. Big waves directing us through life’s mysteries. Rainer Maria Rilke:

“We are the bees of the invisible.
We distractedly plunder
the honey of the visible in order to
accumulate it within
the golden hive of the invisible.”

We don’t all need to be big wave riders. But they can teach us not to fear the unknown. To rise to the challenge and see the benefits of taking some risks. To realise that through acts of courage, facing fear, insight can flourish.

Wednesday, January 10, 2007

Time out

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

Time. Hours, minutes, second. The notes by which we measure out our lives. Help us take an historical perspective. Plan for the future. Yet there are some moments in our lives when we feel outside of time. Rising above it. Stepping outside of its heavy march. Moments which engrave themselves on our souls. Which we carry with us when we re-join that march. Some surfers might say that this is how it feels when they are on a wave. Others might feel this in communion with God or in the purest moments of love. Whenever it is, it is the moments when we forget about the demands of time that are often the most significant. Auden in The Waters:

“With time in tempest everywhere…
The waters long to hear our questions put
Which would release their longed-for answer, but.”

Perhaps it’s how we were meant to be. Outside of time. Blake, “If the doors of perception were to be cleansed, everything would appear as it is, infinite.” Yet we all measure out our lives. T.S.Eliot described doing so in coffee spoons. Most of us do it through the seasons, the years and ultimately the generations. It helps to give meaning, perspective. Yet if we pay too much attention to time’s passing, perhaps we lose sight of the bigger picture.

If this were ever true, it is so for lawyers as they take the measuring of time to its extreme. The make it into a commodity. Something to be bought and sold as the amount of billable hours worked is translated into someone’s worth to a firm. This in itself may be no bad thing as it makes us all aware of the need to value the passing of time. Economists would describe time as a scarce resource which comes with an opportunity cost, in other words that you could have been doing something else instead. The risk for lawyers is that they always see this opportunity cost as a billable hour. If we're not careful this can skew our view of time itself, particularly when you can’t put a price on most of our activities and some may even be described, as the Barclaycard ad goes, as priceless. So then. What price the soul?

Tuesday, January 9, 2007

Life at the Bar: Barristers' clerks

This article was published in The Times on 9 January 2007.


The Legal Services Bill could be about to change a rather complex relationship

Clerks are the entrepreneurs of the Bar. It was Peter McLeish, Machiavellian senior clerk in the Channel 4 drama North Square, who introduced the complex relationship between barrister and senior clerk to a wider audience. It showed that although strictly employed by the barristers, the reality is that the senior clerk runs chambers and often calls the shots. This relationship, with its roots in the contradictions of the English class system, is as much a part of the mystique of the Bar as wigs and gowns.
But the forthcoming Legal Services Bill will herald a new era in that relationship, allowing lawyers and certain non-lawyers to work in business together under licence. What, then, is their role at present? Above all else, what characterises the senior clerk is the multiplicity of his roles. In 1823, Charles Lamb, writing of his father who had been a clerk, said: “He was at once (Mr Salt, KC’s) clerk, his good servant dresser, his friend, his ‘flapper’, his guide, stopwatch, auditor, treasurer. (Mr Salt, KC) did nothing without consulting (him), or failed in anything without expecting and fearing his admonishing. He put himself almost too much in his hands, had they not been the purest in the world. He resigned his title almost to respect as a master, if (his clerk) could ever have forgotten for a moment that he was his servant.”

Today the senior clerk’s role resembles that of a chief executive of a multimillion-pound company. But this does not do it justice. He is head of personnel, in charge of day-to-day disciplining of stray counsel. He is head of marketing and public relations; and careers adviser at large, both helping the successful and sensitively managing the expectations of those who flounder. Added to this, he is agent, broker and head of administration and credit control. In recent years several clerks and former clerks have also been instrumental in pioneering Bar-related services such as online clerking, from Stephen Ward, at Clerksroom, and Andrew Hutchins, at BarristerWeb, to Martin Poulter, at Chambers People.

Yet unlike other businesses, most chambers still do not have different employees for each task — probably because historically, barristers individually employed their clerk, and in return he catered for their specific needs. And unlike a normal business with defined employment structures, chambers consist of self-employed professionals, each vigorously guarding their independence. Arguably, only someone with authority over all aspects of a barrister’s professional life could keep control — the reason, perhaps, why clerks have withstood the threat posed by practice managers and specialist administrators.

Yet despite the obvious authority of the senior clerk, many still perpetuate vestiges of the old system. Barristers are often addressed as “Sir” or “Mr Blogs” while clerks are addressed by their first name. This is caricatured in a story recounted by John Flood, Professor of Law and Sociology at the University of Westminster, of a senior clerk telling his junior: “When I call a barrister by his first name, you call him ‘Mr Smith’. When I call him ‘Mr Smith’, you call him ‘Sir’. When I call him ‘Sir’, you don’t speak to him.” So, too, clerks are often told to knock before entering barristers’ rooms, a rule not applied to fellow barristers — small details that some clerks argue help to retain a division of labour that assists them when it comes to discipline.

But with the wages of top senior clerks reportededly as high as £350,000 a year, and the fact that often there is little difference between the social backgrounds of the two groups, any remaining veil of deference is at most nominal or a legacy of the past. It remains to be seen how the alternative business structures will affect the Bar. But it seems highly likely that clerks will be among those taking the business risks — and ultimately reaping the rewards.

This is the second in a series of articles on Life at the Bar. The others can be found at:

Monday, January 8, 2007

Genius in boldness

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

Once you have decided to do something, the thing which will distinguish you from the crowd is the very fact that you follow up this good intention with action. Very often this may mean breaking away from the crowd. Geothe said of boldness that it has “genius, power and magic in it” and it is true to say that those who break the mould, who lead the way, have the ability to inspire others.

When Roger Bannister broke the elusive four minute mile in 1954, it was only another six weeks before someone else followed in his footsteps and many more were to follow within a short time. So, too, when Hillary and Tenzing summated Everest in 1953, they would probably never have imagined the number of people which were to follow them in the decades to come. Of the world’s most challenging wave, the Banzai Pipeline, Sam Moses described the first ride which was made by Phil Edwards in 1961:

“Most surfers are followers. The Pipeline went untouched for years. After Edwards surfed it, he looked over his shoulder and saw three of his buddies paddling toward the lineup. It’s the same today. On a particularly nasty morning the Pipeline may be empty. Finally, one surfer will screw up the courage to tackle it. Then there will be a swarm.”

Once you’ve decided what you want to do, stop following the crowd. Don’t procrastinate any longer. As Mark Twain said:

"Twenty years from now you will be more disappointed by the things that you didn't do than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover."

Sunday, January 7, 2007

Power of words and advocacy

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

The beauty of nature and its wild gifts touches the soul of anyone who paddles out into the surf. It can take that person to another dimension. To a deeper knowledge both of himself and perhaps of something greater. However grand it might sound, words and advocacy can have the ability to inspire us in such a way. To bring out the very best in ourselves. It is something we lawyers often forget. It is not just about winning arguments, persuading, cajoling. It is about something far greater. A bridge between two people’s minds, a means of communicating thoughts which otherwise might be trapped in the imagination. They are a means of bringing us together.

Roger Payne, one of the world’s leading whale specialists and the man who recorded the whale songs which were sent out into open space in the Voyager mission understands the importance of words to human life. He goes as far as to say that the story of Moby Dick conjured so powerful an image that it might go so far as to save the whole of humanity by inspiring them to respect the natural world around them and therefore avert an environmental catastrophe. He said in Among Whales:

“I have wondered whether the genius of Melville’s book isn’t that he knew just how and by what steps whales would enter our minds, and how once inside they would metastasize and diffuse throughout the whole engine of human ingenuity, mastering and predisposing it to their purpose…that whales would reconstitute themselves, reintegrate at the point of origin of all the meridians of the imagination, its very pole, and there tie themselves forever into human consciousness by a kind of zenith knot…that when this process had completed itself the whale as symbol would have become the whale as puppeteer—would start orchestrating and manipulating, and directing the connections people perceive between themselves and the beating heart of nature…that whales can help humanity save itself—help us to make the transition from Save the Whales to Saved by the Whales.”

So, do as surfers do when they are sitting out the back waiting for the swell to roll in. Look to the horizon. Know your place in the natural world and harness the forces around you.

Friday, January 5, 2007

2007 to be hottest year ever

Perhaps there is something which hits the apocalyptic nerves at the new year but there seem to have been a slay of stories in the last few days. Alternatively, perhaps all the warnings are now starting to come to fruition or we are reaching the tipping point. Whatever it is, the BBC reports that 2007 is set to be the warmest on record according to the UK's Met office, no less. This is said to be a result of an "extended warming period, resulting from an El Nino weather event in the Pacific Ocean". The Met Office also confirmed that 2006 saw the highest average temperature in the UK since records began in 1914.

Thursday, January 4, 2007

International year of the dolphin

As we start the international year of the dolphin, it's worth pausing to acknowledge a very sad milestone in our history. Last month, the Whale and Dolphin Conservation Society reported the loss of the baiji, or Yangtze River dolphin. This was the first recorded extinction of a cetacean species to be caused by human activity. As the website says:

"The baiji represents a loss not just of a species but a whole family of animals which were endemic to the Yangtze River and evolved separately to other whales and dolphins for over 20 million years. The baiji was described as a ‘living fossil’, remaining as it had, unchanged for at least 3 million years since it first left the sea to swim into the Yangtze River."

Echoes of Chief Seattle who in 1884 is reported as having said, “What happens to beasts will happen to man. All things are connected. If the beasts are gone, man would surely die of a great loneliness of spirit.”

(With thanks to Gregory Norminton's blog for alterting me to this issue.)

Wednesday, January 3, 2007

First inhabited island falls into sea

Rising seas, caused by global warming, have for the first time washed an inhabited island off the face of the Earth. The obliteration of Lohachara island, in India's part of the Sundarbans where the Ganges and the Brahmaputra rivers empty into the Bay of Bengal, marks the moment when one of the most apocalyptic predictions of environmentalists and climate scientists has started coming true. See The Independent, wikipedia and satellite view.

Tuesday, January 2, 2007

The meaning of surfing

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

If the ocean is the earth’s heart, then the tides are its steady beat. Surfers spend hours sitting on their boards rising and falling with the waves and marching to and from the surf in time with the tides. It is no wonder then that many describe surfing as itself a religion. Others, such as Tom Blake, one of the fathers of modern surfing, described nature as God. Still others would say that nature was a revelation of the glory of God.

The human connection with the ocean is primeval and touches the very depths of our souls. Evolutionists might suggest that it has something to do with the fact that all species originated in the sea. Biblical references might be made to the first paragraph of the Bible in which it was said that “the spirit of God moved across the waters”, to Noah and the great flood, Moses and the parting of the Red Sea, Jonah and the whale and even Jesus himself walking on water. Psychologists on the other hand might suggest that it is due to our time in the womb or the fact perhaps that like the earth itself we are made of around 90% water. As Goethe put it, “All is born of water; all is sustained by water.”

Rudyard Kipling described words as “the most powerful drug used by mankind.” However, the very act of using such man-made tools can in itself limit the experience. This was illustrated by the explorer Marco Polo who reported that when Kublai Khan asked him why he had not talked about his home, Venice, he replied that:

“Memory’s images, once they are fixed in words, are erased…Perhaps I am afraid of losing Venice at once, if I speak of it. Or perhaps, speaking of other cities, I have already lost it, little by little.”

To some extent, surfers feel like that about surfing. Trying to objectify the experience into mere words risks diminishing the feeling. It simply exposes the limitations of words themselves. To try and grasp at its essence is to grasp at thin air if one is searching for anything literal. It is perhaps only in poetry and the evocation of life’s mysteries that one can approach the essence of surfing with any accuracy. The following words from William Blake, for example, in many ways get a lot closer to describing surfing than simply talking about riding down the face of a wave:

“To see the World in a Grain of Sand
And a Heaven in a Wild Flower,
Hold Infinity in the palm of your hand
And Eternity in an hour.”

This was echoed by the words of Rachel Carson when she said, “In every outthrust headland, in every curving beach, in every grain of sand there is the story of the earth.” As far back as 1777, words were showing their limitations in the face of the breaking wave when in an account of the voyages of Captain James Cook, it was said of canoe surfing:

“I could not help concluding that this man felt the most supreme pleasure while he was driven on so fast and so smoothly by the sea”.

For it is far more than pleasure. It is a connection with nature, the world, with God. Some might say it is love itself. It is a sense of timelessness, of other worldliness yet at the same time as connected to this world as it is possible to be. In The Four Quartets, T.S.Eliot describes “the still point of the turning world”:

"At the still point of the turning world…
Where past and future are gathered. Neither movement from nor towards,
Neither ascent nor decline. Except for the point, the still point,
There would be no dance, and there is only the dance.
I can only say, there we have been: but I cannot say where.
And I cannot say, how long, for that is to place it in time.
The inner freedom from the practical desire,
The release from action and suffering, release from the inner
And the outer compulsion, yet surrounded
By a grace of sense, a white light still and moving,
…both a new world
And the old made explicit, understood
In the completion of its partial ecstasy."

To use an image from Anne Morrow Lindbergh, the still point is like the axis on a wheel, never moving whilst all around is action. Alternatively, one could look to the physics of surfing and recognise that despite appearances the water merely rises and falls. It does not move forward with the wave but instead simply transmits the energy on. Further still, the atom remains constant whilst the quantum energy never ceases.

Perhaps it is that our minds, our very beings always return to the sea, to our roots. Rachel Carson said:

"For all at last return to the sea –
To Oceanus, the ocean river.
Like the ever-flowing stream of time,
The beginning and the end"

Perhaps that’s the point. Just as all the rivers flow inexorably towards their ultimate source, the ocean, perhaps our lives equally flow back towards their beginnings. The meanderings merely part of the journey. T.S.Eliot wrote in The Four Quartets:

“In my beginning is my end…
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.”

The ocean as the metaphor to explore life, our relationships with each other, love, God. The ocean as a conduit. Without form and void and yet a connection to something greater, something we can only imagine in the fringes of our thoughts. The ocean as the depths of our subconsciousness. In The Face of the Deep, Thomas Farber said:

“When we look out at the vast blue, we see not ocean, exactly, but surface: master trickster, chameleon, boundary between water and atmosphere, barrier or seal between two realities. Undulating, dancing, bending, stretching, reflecting on each side the world it faces while obscuring the other. From above, the illusion that reality remains the same as far as the mind can see, that even the other side of the mirror is more of the familiar, if distorted. Still, what’s concealed makes itself deeply felt—we know there’s more than meets the eye.”

The breaking wave as the boundary with the conscious mind, the route into the subconscious. Jung’s anima and animus in one. The guide to the subconscious. The light to the shadow. The wave as a gift from God. As love itself.

Perhaps it is something to do with the timeless quality of the ocean. The fact that whilst it never remains the same, it appears on the surface to be unmarked by the ravages of time. Mountains, valleys, living creatures. They all bow to time’s dominion. The ocean on the other hand appears as a constant. As Henry David Thoreau said:

“We do not associate the idea of antiquity with the ocean, nor wonder how it looked a thousand year, as we do of the land, for it was equally wild and unfathomable always.”

However, just because its physical appearance on the surface does not change, that is not to say that events do not take their toll and this is perhaps never more clearly illustrated than the present day when the ocean is being polluted to such an extent that many forms of sea-life are now struggling to survive.

Water’s memory is more subtle but no less profound. Perhaps again, a symbol of the subconscious. A.R.Ammons, “The very longest swell in the ocean, I suspect, carries the deepest memory.” Keats, “Wide sea, that one continuous murmur breeds along the pebbled shore of memory!” Bill Green in Water, Ice and Stone:

“I remember what [Linus] Pauling had written about water. I…was utterly taken by the mystery of it: how water retained, like a childhood memory, a trace of its past as ice. How it never forgot that. How it carried that singular fact with it – in its bonds and structures, in its very being – all the way to boiling point, to where it no longer existed as a liquid. It was water’s memory that explained to much. That explained everything, really.”

The voice from our souls, our relationship to the world around us, the meaning of life. To ignore these deep murmurings is to turn away from life itself, just as it is to turn away from the sea. Edith Sitwell once wrote:

"What are you staring at, mariner man
Wrinkled as sea-sand and old as the sea?”

As we sit out the back and quietly wonder we understand. We can feel the connection even if we all struggle quite to put it into words.

The above photographs were taken by and are copyright of Dr Michelle Tempest.