Software is reliable and robust

‘If it please your Lordship,’ Dr Huld continued, representing the defendant, Positively Open Limited, ‘my client is certain that their system, called EarthSkyMeet, is robust.’

Dr Huld sat down. He tilted his head slightly back, nose in the air, projecting an air of complacent self-satisfied certainty. Sergeant of the Lawe, Sergeant Chaucer stood up.

‘Your Lordship, my learned friend has made many claims about the software and the system used by his client in the absence of any evidence. It is my contention that a fair trial cannot take place unless Positively Open Limited is required to disclose the evidence my expert witnesses have requested.’

The judge, Marcus Fabius Quintilian, put on his spectacles and looked at the papers before him. ‘Well, Sergeant Chaucer,’ he said, ‘this is a long list.’

‘It is, my Lord.’

‘It is a very long list, Sergeant Chaucer.’

‘It appears so, my Lord. It comprises three lists, as my learned friend is aware, my Lord. The three lists have been brought into a single list, my Lord.’

‘This is your third application, Sergeant Chaucer.’

‘It is, my Lord.’

‘Well, Sergeant Chaucer, I don’t know, you know. What say you, Dr Huld?’

Sergeant Chaucer sat down with an audible sigh of exasperation. Dr Huld stood up, smiling.

‘As we all know, your Lordship, if there was a computer error, it is obvious the claimant would have been aware of it. My learned friend has not explained why his client did not notice the errors – if, in reality, they are errors, as he alleges. It is my submission that my learned friend is merely seeking to obtain more irrelevant information. This is just another fishing expedition, my Lord. My client’s system is robust. It is reliable. Indeed, as we all know, the evidential presumption is with my client – it is presumed to be reliable. It is for the claimant to provide evidence to substantiate their challenge that the system is not reliable.’

At this point Sergeant Chaucer stood up. Dr Huld did not like being interrupted.

‘Sergeant Chaucer, Dr Huld must be right.’

Dr Huld reluctantly sat down.

‘If my learned friend is correct, your Lordship, then the professors that wrote the article that I submitted before this hearing …’

‘Ah,’ the judge interrupted Sergeant Chaucer, ‘but we have the Law Commission’s recommendation from 1997. It remains in place.’

‘Well, your Lordship, if you dismiss the sage knowledge of four learned professors with their combined experience and knowledge, there is little I can do to persuade you, other than to reinforce the need for a fair trial.’

‘That’s all very well, Sergeant Chaucer, but any issues that fail to be dealt with at trial can be remedied at appellate level.’

‘Yes, your Lordship, but the finder of fact acts as a moral agent, and central to this is that the findings by a court must be justifiable and meet the demands of rationality and ethics.’

‘That may be, Sergeant Chaucer, but all your client has done is contend the system must be wrong. As I have written, inspectio etiam ipsa saepe falsum deprendit.’

‘Alas, your Lordship, the statement you wrote in Book 5 of Institutio Oratoria, that “simple inspection also often reveals a forgery” is no longer relevant – especially in relation to digital data. My client cannot point to any evidence to say the claimant’s computer system might be at fault. My client knows nothing about the claimant’s computer system, so my client is put in an impossible position. My client’s difficulty is compounded, because my learned friend asserts that his client’s system is robust, yet he resists the disclosure of the documents we have requested. It is the absence of such records that suggest poor quality software and poor system management. In addition, my learned friend compounds the difficulty by contending the system is robust – yet when pressed, refuses to produce a technical witness to testify on oath that the system is perfect – or even to offer a definition of what he means by the word reliable.’

‘Well, Sergeant Chaucer’ the judge replied, ‘we are told that the disclosure exercise you are requesting is very expensive.’

‘So my learned friends contends, your Lordship, and, if I may say, without any evidence to support the claim that the exercise is expensive. In fact, the requests for disclosure are nothing more than should be expected to be produced from an efficient and well-run system such as EarthSkyMeet. The claimant spent vast amounts of money on a complex computer system that purports to be more efficient and, no doubt, with the intention of increasing profits. Given this, your Lordship, it is my submission that they must face the foreseeable consequences of being required to deliver up relevant evidence in the event of litigation. The claimant is an organization of some size. They have a department that works on litigation continuously. Litigation is a normal part of their business. It is a poor excuse for a powerful organization to allege that the expense of providing routine information relating to the IT system they use is disproportionate to the fairness of legal proceedings.’