8th March 2022
Today’s post will be just a short one, so as to link and draw attention to this judgment.
Paragraphs 38 and 39 are beautiful and quietly lethal.
By way of background, the corporate claimant – the Eurasian Natural Resources Corporation – sued in respect of the outstanding book Kleptopia.
(Buy it here – EDIT This is now an Amazon link, as the previous Bookseller link says they are out of stock.)
The judge held that the book did not hold the defamatory meanings pleaded:
“In short, the Book does not bear the defamatory meaning contended for by the Claimant because, read in their proper context, the allegations complained of by the Claimant do not refer to any ENRC corporation” (paragraph 36).
But.
The judge goes on and says, in effect: hang on, this book does make serious allegations about the claimant, so why is the claimant not suing on those serious allegations?
Why, asked the judge in effect, is the Eurasian Natural Resources Corporation not suing for being called “[a] corporate front – “a charade” [ ] used [ ] for criminal activities including corruption, money laundering, theft and embezzlement. “
Well, why indeed.
This, of course, is not an express admission by the Eurasian Natural Resources Corporation that it is such a front.
But one suspects these judicial comments in a legally privileged, public judgment were not those sought by the claimant in bringing this case.
Less SLAPP – and more of a slap-down.
****
Disclosure and disclaimer: the journalist defendant also works for the Financial Times, where I am a freelance ‘contributing editor’ but nothing in this post refers (or is intended to refer) to any case brought by Eurasian Natural Resources Corporation against any other FT entities and/or individuals; and I also long ago happened to work for the claimant’s law firm.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Delicious.
I think this ruling and David’s article help shine a light on one of the “inconvenient truths” of law as it is practised today: that although we like to tell ourselves that, “everyone is equal in the eyes of the law”, not only is that not always true in the sense of things like sentencing decisions [as plenty of empirical evidence shows], but that it has become far too easy for wealthy and powerful to use the law to crush the less well resourced.
Sometimes, it can be used to stymie even more powerful groups – just look at the manner in which Donald Trump is using the appeals process and court cases to thwart investigations in to his business practices – techniques that simply would not be available to you or I because we lack to financial resources to “game the system” in that way.
And that’s the rub.
The old maxim, “People tend to get the justice they can afford” is far more descriptive of the current state of legal affairs than perhaps we would like it to be. Of course, all these challenges come before one comes to the more extreme cases, such as the McLibel trial, where it transpired that one particular meeting attended by the two accused was such that they were the *only* parties present who were not an undercover agent of some kind…
But the question/challenge either becomes one of trying to find the point of balance between allowing those with a grievance to have their day in court on one side, and those wishing to file a vexatious suit as a delay/discouragement tactic as another.
The problem is particularly acute when the parties in disagreement happen to be a large company (with a cadre of full-time legal support) on one side and a private individual or couple on the other.
In a very limited sense justice systems have attempted to at least partially address the balance – for example in the United States there is the concept of a “Class Action” law suit, but that only works where the plaintiff is the smaller party – if the primary case is being brought by the large corporation, as was the case with this book, the defendant is in a difficult position, especially if they lack the financial resources to mount an effective defence.
But what is the answer?
Here’s a “starter for 10” answer to that question that is too outlandish to work, but it might prompt someone to spot something better…
Based on the nature of dispute between the parties, i.e. the charges in question for a criminal case and the dispute for a civil case, establish a fixed-fee cost for each stage of the legal resolution process – i.e. court case, appeal, etc. Base the cost on the documented income of the parties concerned.
So if my income is £40,000 per annum and the case is of a given complexity, the preliminary case might cost me say £2,000 – 5% of my annual income. But if the plaintiff in the case is a multi-billion-dollar multinational, make their cost for bringing suit 5% of their annual income, whatever that is. Suddenly the cost of triggering a vexatious lawsuit goes up, which might perhaps discourage mis-use of the law in this way.
I’m certain that I’ve just offered a deeply flawed proposal for multiple reasons, but the sense of fair play says that the costs should be equivalent, “proportionately equal” perhaps (no apologies for the oxymoron) or set in a way that makes it less attractive to abuse the system.
Legal outcomes should not be decided by the depth of ones’ pockets.
It’s instructive that if one clicks on the link provided by DAG to enable purchase of the book in question then one is informed that it is no longer available.
Given that and the fact that the author and publisher would have incurred eye watering costs in defending themselves it would appear the bad guys have won.
The publicity surrounding the verdict has obviously been good for sales and the book is out of stock because the publisher is has run out of copies and is presumably waiting on a reprint to be manufactured. Given its vast size and resources Amazon operates a print-on-demand fallback: when the publisher is OOS (out of stock) it prints copies itself on short run digital presses and subtracts the printing unit cost (which is relatively expensive compared to a larger print run) from the money it remits back to the publisher. The publisher makes less money but at least the book is obtainable.
Just bought it as a printed book from Amazon. That way it cannot be digitally deleted at a later date.