Author: David Allen Green

“Take A View” – the three words with which P & O and others will internally justify breaking civil law obligations

25th March 2022

“How can you defend someone you know to be guilty?” is the one question almost all lawyers will be asked at one time.

But it is perhaps a question about the wrong lawyers and about the wrong area of law.

The question presupposes criminal lawyers and criminal law.

Yet no criminal lawyer can actively defend as not guilty someone who has admitted their guilt (though the prosecution can still be put to proof).

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There is a far more difficult question for those who advise on civil rather than criminal liability.

(Civil law is, in general, about the legal obligations that we owe each other in contract, or tort, or otherwise – as opposed to obligations we owe to the state.)

The question is: “How can you defend someone you know to have deliberately breached civil obligations?”

For what often happens in civil law is that the client will know that they are (or will be) in breach of a contract, or of a duty of care, or of some other legal obligation.

But they do not care.

They just want to know the consequences of that breach – whether they can avoid or mitigate the consequences.

The lawyer will, in turn, explain the consequences of the breach – the likelihood of actually being sued and the amount of damages and so on.

The client will then assess whether the breach is worth the trouble.

They will – to use a common phrase in legal practice – ‘take a view’.

That the ‘view’ being ‘taken’ is a view on whether they should risk breaching a legal obligation is not said aloud.

The relevant exchange is in the following form:

Client: Can I do [x]?

Lawyer: If you do [x] then there is a risk of [y] legal liability.

Client: Ok, we will take a view.

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Some lawyers would say there is nothing wrong with this.

If there is a breach, and the party adversely affected sues successfully, then the injured party will be compensated and (supposedly) placed in the position they would be in had the legal wrong not happened.

A breach of contract will lead to damages to put the injured party in the position had the promise been fulfilled.

In (most) torts, the injured party will have damages intended to place them in the position had the tort not been committed.

And so on.

In effect – damages and so on are the cost of business.

Like professional fouls in association football.

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And this is how one suspects the bosses at P & O went about breaking the law in respect of sacking their staff.

It was not because they did not realise that there would be legal consequences.

But instead they knew that if they budgeted for the resulting compensation payments, they would head off any legal claims.

They would deliberately break civil obligations knowing that they could manage any civil risk.

They would ‘take a view’.

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Postscripts – from Twitter:

 

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***

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Good-bye to the Fixed-term Parliaments Act 2011 – which ‘enshrined’ fixed parliamentary terms in law, ho ho

24th March 2022

So farewell then, the Fixed-term Parliaments Act 2011.

You will be remembered, if at all, for two things.

First, that nobody could ever remember exactly the arrangement of lower-case letters, or the hyphen, or whether ‘term’ was plural, or whether ‘Parliaments’ was singular, in your title – at least without checking.

Second, that you were a singularly useless piece of legislation.

You were to ‘enshrine’ fixed-term parliaments ‘in law’.

Ho ho.

But you were circumvented in 2016, when it suited politicians.

And you were circumvented in 2019, when it suited politicians.

And you were going to be circumvented again and again whenever it suited politicians.

Yes, there may have been an indirect effect in that any circumvention of the Act was not that simple.

But circumventions were not that difficult either.

In the end, you turned out to be more of an ornament than an instrument.

And today you were repealed.

You have now gone the same way of so many other things that were once ‘enshrined in law’.

Ho ho.

Another exercise in fundamental constitutional reform that was not thought-through.

And now we are back – legally literally – to the legal and constitutional position we would have been in had you never been passed.

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A balancing exercise in action – Chris Mullin defeats a disclosure request in respect of the Birmingham pub bombings

23rd March 2022

I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.

There is a powerful public interest in that crime being properly investigated and those guilty being convicted.

Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.

There was a powerful public interest in that miscarriage of justice being exposed and corrected.

And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.

What happens when two powerful public interests such as the above collide?

That was the issue before the recorder of London at the Old Bailey.

On one hand, those police officers investigating the bombings want access to materials held by Mullin.

You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.

But that does not necessarily mean the police should get it.

The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.

Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.

And so the public interest in exposing that miscarriage of justice would have been defeated.

In a detailed and fascinating judgment, the judge shows how the competing – indeed contrasting – public interests in this case should be balanced.

And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.

It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.

Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.

It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.

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What is SLAPP?

22nd March 2022

Sometimes I give blogposts the wrong titles.

Yesterday, the post here had the title: Is there a SLAPP problem in the English courts?

This is a good – and urgent – question.

The problem was that the post did not answer the question, and instead it set out some preliminary views about SLAPP – that is an acronym for ‘strategic litigation against public participation’.

What I should have done before setting out these preliminary views was to explain SLAPP – and I am sorry I did not do so.

Some people even told me on Twitter that they had to google ‘SLAPP’ so as to understand my post.

This post seeks to remedy the deficiency of yesterday’s post.

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SLAPP is a term to describe the misuse of the litigation process for the purpose of minimising or eliminating public and media scrutiny.

It is an American term and it appears to date from 1996.

There have been, in turn, various anti-SLAPP laws in America.

The reason why SLAPP is now seen as an issue here is a spate of illiberal legal claims brought (or threatened) in the High Court in London which appear to have the ulterior motive of minimising or eliminating public and media scrutiny – in particular scrutiny of various oligarchs and foreign corporations.

The United Kingdom government has just announced that it is considering introducing anti-SLAPP laws here and it has put out the a call for evidence on SLAPP.

The government describes SLAPP as follows:

“The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system. SLAPPs have two key features:

• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption.

• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.”

Another word for this phenomenon is the splendid portmanteau ‘lawfare’.

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Now that I have set out a defintion of the term, do have another look at yesterday’s post – which I have now re-titled.

You will see that I aver that although SLAPP is a pejorative and contested term, it is also a useful term as long as you bear its limitations in mind.

In further posts on this blog I am going to look at some recent cases that have been described as SLAPP cases so as to answer the following questions:

1. Is there really a SLAPP problem in the English courts?

2. If so, what is the nature of that problem?

3. And if it is a problem, is it a problem capable of being solved?

I think it is important to ground any consideration of reform in an understanding of actual examples, else one can end up with a mismatch between proposals and problems.

For such a mismatch is what happened, in my view, with the campaign which led to the Defamation Act 2013, where the eventual legislation that was passed would have done little or nothing in respect of the various poster-cases on which the campaign relied.

(With my old Jack of Kent blog I was part of the early part of that campaign for libel reform, though I had and have concerns about the law that was finally enacted.)

Whether there is an actual SLAPP problem and, if so, whether it can be solved is a key issue for our legal system and how that system impacts on public debate.

I would like this blog – with its posts and excellent commenters – to be part of informing the debate on that issue.

I am sorry my post yesterday was running before it was walking – and I hope this further post has put that right.

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***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

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SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

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But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

Can the period of the current Ombudsman be lawfully extended?

18th March 2022

One of the areas of focus of this blog is what I call the ‘accountability gap’ – that is the lack of genuine accountability in the arrangements of United Kingdom government and public administration.

And one element of this accountability gap is the problem of the ‘Ombudsman’ – the Parliamentary Commissioner for Public Administration.

This is a strange and fairly obscure office and it exists to deal with what is – from a legal perspective – a strange and elusive thing: ‘maladministration’.

(My post on the obscurity of the office is here and my post on the vague concept of maladministration is here.)

It is also an office that is not without its critics – as this link demonstrates.

Part of the problem with the Ombudsman seems to me to be structural – the relevant legislation provides a strange mix of strong powers and a weak sense of purpose.

But some of the problem may be operational – that the PHSO (as it is now known) does not operate as well as it could do, even with its curious legal regime.

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The current Ombudsman has just had his term of office extended – and, as you can imagine, this has not been received well by the critics of the Ombudsman.

The extension is for a further period of two years, which will take his term in office to 2024.

One may doubt whether such an extension is wise – and the recent extension of office of the now-departing Metropolitan police commissioner comes to mind as an unwise extension of office.

I have been, however, asked to look at whether the extension is unlawful.

Here we need to look at section 1 of the Parliamentary Commissioner Act 1967:

We also need to look at last week’s press release:

Curiously there seems no trace on the website of the Cabinet Office of the confirmation, or on the website of the parliamentary committee of such a recommendation – but let us assume that the confirmation and recommendation both actually happened.

And by way of background, the current Ombudsman was appointed in April 2017, and was widely reported that the original appointment was for a five-year term (which must be correct, else there would be no need for an extension).

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So, looking at section 1, what can we ascertain?

Section 1(2A) provides that the Ombudsman is shall hold office until the end of the period for which he or she is appointed.

On the face of it, that would mean the current Ombudsman’s term comes to an end next month, for that was the position of the original appointment.

Section 1(3B) provides that a person cannot be ‘re-appointed’ as Ombudsman.

So if the extension was a re-appointment that would be unlawful under section 1(3B).

And section 1(2B) provides that the period of appointment shall not be no more than seven years in total.

That provision means that if the current Ombudsman served beyond April 2024 then that would certainly be unlawful.

What is not clear on the face of the legislation is what the legal position is if an office holder has an extension beyond his or her original appointment, as long as that extension does not mean more than seven years in total are served.

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In practical terms, it could be argued that by extending the appointment before it expired, then the appointment is simply continuing.

It can also be argued that section 1(2A) does not say or necessarily imply that that an Ombudsman cannot hold office after the period for which he or she is appointed – section 1(2A) only says that they must hold the office until the end of the appointment.

On balance, I think that although the position is not clear, the extension does not look to be unlawful.

Nothing in section 1 expressly prohibits such an extension.

Had section 1(2B) said that the period of appointment shall never be longer than the duration of the original appointment, then such an extension would be unlawful.

But section 1(2B) does not say that – it instead expressly states that the duration should not exceed seven years.

And because there is this express long-stop, I do not think a court would easily imply into the Act an even shorter long-stop as a matter of law.

I also do not think the court would see the extension as a ‘re-appointment’, as it is a continuation of an existing appointment and not the start of a fresh term of office.

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Public law is full of these situations where the legal position is not clear – and it may be that my analysis above is incorrect – and you are welcome to put forward your view below.

But the fact that the extension is (probably) legal does not necessarily mean that it is a good decision.

What may be a legal thing to do is not always the right thing to do.

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Comments Policy

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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One difficulty with SLAPP

17th March 2022

I am currently writing something for publication elsewhere about SLAPP – that is strategic litigation against public participation.

There is, however, one point about SLAPP that I thought was worth making by itself in a brief post.

The point is that SLAPP is a loaded, pejorative term.

It is not an agreed term.

It is instead a term a critic uses to describe certain litigation that the critic does not like.

Very few people – if any – would say they are pro-SLAPP.

And this is a problem in respect of reforming law and procedure so as to make such illiberal and misconceived law suits more difficult to threaten and to bring.

For if there is no objective definition of what one is trying to avoid, there can be no easy set of changes for avoiding it.

And many of the features of American anti-SLAPP legislation are already part of English law and procedure.

So, of course SLAPP is wrong: for what sensible person would not be against strategic litigation against public participation?

But being against a thing framed in loaded terms is not the same as knowing what to do to counter that thing.

More thought is needed than just to say SLAPP is wrong.

We should not be, well, slapdash about SLAPP.

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My Comments Policy now has its own page.

About comments on blogs and ‘below the line’

16th March 2022

Thanks to many of you, this blog has a very high standard of comments.

The only credit I can take for this is that I pre-moderate the comments – and I wish other sites pre-moderated their comments too.

In the olden days, newspapers used to take pride in their ‘letters to the editor’ page – and so not any old letter sent in would get published.

Some newspapers even had individuals responsible for editing these pages – and one or two may still do.

But then – the internet came along.

Comments ‘below the line’ became, for want of a better word, content – and free content at that.

It even became more legally safe not to pre-moderate the comments, as you could say that you were unaware of what was said until you had a complaint.

And this led to many sites where the comments ‘below the line’ are unpleasant or not worth the effort in reading.

Of course: if you really want to say something not nice, or useless, there is nothing stopping you – there are many places on the internet for you to go, like Twitter.

But freedom of expression does not confer the absolute right to impose that expression on another person’s website.

Yes, pre-moderation takes time and effort to do – but it is worth that time and effort.

Indeed, moderating and curating comments ‘below the line’ is itself an exercise in free expression – of how I want this blog to present itself to the world.

And there is the internet truth that good comments encourage other good comments, and bad comments encourage other bad comments.

This truth, over time, becomes perpetuating – so that the sort of people who want to leave poor quality comments tend not to even bother with this site.

A very high standard of comments below a blogpost does not happen by accident.

But.

I would be kidding myself that this was primarily because of my policy – so again thank you for leaving – and reading – the high quality comments on this site.

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My Comments Policy now has its own page.

 

The fake Twitter account of “Marina Ovsyannikova” – and how to spot such fakes

15th March 2022

Being an experienced Twitter user is like being what comedian Jasper Carrott once said of Ed Doolan: “world-famous in Birmingham”.

You have a great deal of knowledge about a relatively small thing, but one advantage that experience and knowledge give you is an ability to spot fakes.

And earlier today many mainstream media journalists fell for a fake account in the name of Marina Ovsyannikova, the Moscow television editor who bravely interrupted a live broadcast to protest against the invasion of Ukraine.

This what she did:

And this is a video that was circulated afterwards:

She was then – unfortunately but unsurprisingly – detained.

And then – this morning – it seemed somehow she was tweeting.

 

As you can see, the tweets were heavily RTd and favourited.

And the tweets were RTd and favourited by many mainstream media figures.

One even told us, earnestly, that we should take such tweets “at face value”.

But.

The account was fake.

But not only was it fake, it was self-evidently fake.

From the profile alone, it could be seen it was a recent account.

The bio says ‘former editor’ – as if she would have been in a position to change the bio.

The profile pic was a screen-grab from the video circulated after the incident – and one would think there would be better pics available to an authentic account.

The tweets were in English – from a Russian-Ukrainian who was warning Russians about Russian war policy.

Twitter, of course, is blocked in Russia – and although she could be using a VPN, there would be no point in her doing that if she was tweeting under her own name.

And she was being detained anyway.

Scrolling down to before the incident you would see (1) anti-war tweets (2) tagged with the ‘#Anonymous’ tag – both of which would be implausible for someone in her role planning to make a surprise intervention in live news:

All this took a few seconds to check and assess.

(Others clicked into the earlier tweets and could ascertain they were with a different Twitter handle – but I was already satisfied they were fake without this further due diligence.)

Some might say that – notwithstanding all these indications to the contrary – the account could still be authentic – or the tweets were being tweeted on her behalf.

Perhaps – but even taking this at its highest, the numerous indications were such that the account should not have been taken at ‘face value’.

It probably was a frolic of an opportunist rather than anything more sinister, and when mainstream media people RTd the account, others (understandably) thought the account was legitimate.

(And the account has now been suspended. was temporarily deleted – but it has returned with older tweets removed.)

But one should always be critical – some things are true, some things are false, and the job is to work out the difference.

And this critical faculty is maybe required nowadays more than before.

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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.

The Northern Irish protocol is both legal and constitutional – the significance of today’s appeal decision

14th March 2022

One of the features of having an ‘unwritten’ (that is, uncodified) constitution is that there is not often ‘constitutional’ litigation.

Even cases of the highest political significance are decided on technical points of law, with judges affecting to not be concerned about any wider implications.

But sometimes there is a case where the court is conscious of the constitutional significance of the matter before it, and today one such case was decided at the Court of Appeal in Northern Ireland.

We do not yet have the full judgment, though we have this detailed summary.

The case was about the legality of the Northern Irish Protocol.

At first instance the appellants – a group of pro-Union politicians – lost their challenge to the protocol’s legality, and so they appealed.

One ground was that the protocol was contrary to the Act of Union 1800.

Here part of the court’s summary reads as follows:

“The court said that Parliament was clearly sighted on the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit”.

“It said the terms were settled and made law after a long parliamentary process and it could not be suggested that Parliament was unaware of the changes that may be wrought.”

This is important.

Of course, there is a certain artificiality in saying MPs knew what they were voting for in detail – or even cared.

But – almost as a legal, or constitutional, fiction – parliament must have been aware of what it was doing.

And as such it would be wrong for a court to gainsay parliament.

In particular parliament had expressly legislated that previous legislation – including, by implication, the Act of Union – should be read so that they would be subject to the withdrawal agreement legislation.

And if they were subject to the withdrawal agreement legislation there was no conflict – parliament had already stated which provision would have the the priority.

The significance of this judgment is that the protocol is not only legal but also constitutional – which is not always quite the same thing.

The court has set out how the protocol fits within – and does not disrupt – the settled constitutional arrangements of the United Kingdom.

And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail.

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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.