Category: Courts and the administration of justice

How you can be sued for libel for reporting things said in Parliament

10th March 2022

On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:

What Seely said is set out on the ‘They Work For You’ website:

And it has been published in Hansard:

What has struck many about what Seely said is that reporting parliamentary debates could be actionable under the law of defamation.

Surely, some thought, reporting what is said in parliament has absolute privilege – that is legal protection – from any law suit.

Well.

The legal position is not straightforward – though you may think it should be.

And the unsettling answer is that you can be sued for reporting things said in parliament.

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First there needs to be a distinction.

What MPs and peers themselves say in parliament does have absolute privilege.

This protection is provided by the Bill of Rights:

“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.

(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)

This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.

The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.

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But.

Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.

The protection is instead ‘qualified’ – and so is subject to a condition.

This condition is (in general terms) that the report – or other repetition – is not malicious.

(This condition is the general effect of the august Parliamentary Papers Act 1840 and the Defamation Act 1996.)

This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.

The onus is on the claimant to show this malice.

So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.

The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.

But nothing at law stops them issuing the threats.

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How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.

For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.

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There is the eternal question of what constitutes ‘malice’.

 

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And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.

As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:

The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:

In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.

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Perhaps there should be further protections.

For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.

Perhaps this should be extended to defamation threats.

And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.

Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.

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None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.

Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.

And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.

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We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.

It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.

But it is gap that has not yet been filled.

And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.

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For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.

Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.

(And to demonstrate my own personal lack of malice – this is a link to how Trafigura’s lawyer saw what happened.)

So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.

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Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.

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A government should not be able to deprive people of possessions and property by mere ministerial diktat

3rd March 2022

Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.

(Perhaps that is a hint that I should keep these blogposts succinct!)

The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.

When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.

Individuals have rights, and there are things no person or group may do to them, without violating their rights.

And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.

These rights may not be absolute – and property rights especially can be subject to interferences by the state.

But such interferences need to have a lawful and reasonable basis and follow due process.

And this is the same for oligarchs, as it is for anyone else.

That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.

And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.

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Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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A “nice” parliament?

1st February 2022

Today the speaker of the House of Commons said he would like parliament to be “nice”.

For this, and for insights generally, listen to this clip to the end:

Like courts, parliament is a place for conflict and for those conflicts to be resolved.

And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.

“The honourable member” is the parliamentary equivalent of “my learned friend”.

Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.

It is not an allegation that can be made by a lawyer lightly.

But it is an allegation that can, if there is evidence, be made in certain circumstances.

In parliament an allegation of dishonesty cannot be made – at least in debate.

An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.

As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:

So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…

…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.

One can understand how the rules of the house of commons came to end up like this.

But that does not make the rules seem any less daft.

The solution, however, is not “niceness”.

Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.

But courts – while usually calm and polite and respectful – are not “nice”.

Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.

To regard them as “nice” is to confuse form with substance.

A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.

A parliament is a place of conflict and high tension – with immense consequences for real people.

As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.

But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.

Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.

And that will not help anybody.

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A day in court

21st January 2022

Today – with my lawyer’s head on – I spent the day in an actual court at an actual hearing, my first since at least 2019.

And the dynamic was absolutely different to online hearings, so much that it felt like going back in time with Bill and Ted or the Doctor.

Not just different in quality, but different in the very nature of the advocacy and the the interaction with the judge.

I happen to be a great fan of things being done virtually whenever possible, from parish council meetings to parliamentary committees.

I am disdainful of ceremony and ritual, and of the theatre of politics and the law.

I do not like politics and law to be cosplay exercises that are better suited to historical enactment societies and fan conventions.

I would place wigs and gowns into the museums in which they belong.

If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.

But.

Strip away all of the daft paraphernalia, there are still the intellectual and forensic exercises that do not need stage props to make then interesting, even compelling.

And such exercises in the same room are radically different to lots of muted faces on a zoom call.

I was not expecting this.

I thought virtual hearings had superseded the need for actual hearings.

But I was wrong.

Some things cannot be replaced by a virtual substitute.

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The Meghan Markle litigation

8th January 2022

I do not tend to blog and tweet much about the areas of law in which I do most of my professional work as a solicitor: commercial law and media law.

This is for a variety of reasons, including the ability to commentate freely on things where there is no possibility of a conflict of interest.

So that is why I tend to blog and tweet about public law and constitutional matters, where I am less likely to have a conflict of interest.

But from time to time a media law matter comes up which I can commentate on without any concerns for conflicts of interest.

And so this week I was quoted in the Washington Post on the Meghan Markle matter.

The piece is here, and my quote as published was:

 

 

 

My quote as given was:

“The Meghan Markle court victory was not that legally significant. 
“The Mail on Sunday litigated a weak case and they lost it, without even managing to get to trial.  
“The senior editors would have been advised against publication – the Mail on Sunday have very good lawyers – but they chose to publish anyway, knowing the legal risks.
“But the case has immense cultural and media significance. 
“The newspaper chose to fight a weak case, despite the legal problems.  This could only be because they had a non-legal objective. 
“But also important was that Markle decided to press her case, instead of letting it go like other royals would have done. 
“In this way, the case could be a turning point.”

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The Markle judgments can be found here.

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I thought it may be of interest to add a little to my quote on this blog.

High-profile litigation often exists on two levels – how it is played out in the media, and what is actually happening as a matter of hard litigation.

And here, there were may reports in the media that framed Markle in a certain way.

But the Mail on Sunday case was always weak at law – and in the end it was so weak that it did not even get to trial.

Weak cases are rarely fought in civil litigation – the weaker side will usually tend to settle as soon as possible.

And so the interesting question is why it was fought – and in the answer to that question will be the genuine significance of this case.

The case is less significant in its detail than in its very existence.

The case itself has almost no legal significance: the applicable law was so obvious that Markle got summary judgment, despite the array of legal skill and talent employed by the newspaper.

But the cultural and media significance is – perhaps – profound.

Something seems to have changed.

But what?

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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A legal look at the Giuffre settlement agreement on which Prince Andrew is seeking to rely

5th January 2022

A happy new year to all the readers of this law and policy blog, and welcome back.

Today’s post is about civil law – that is the law which (broadly) deals with the legal obligations we owe to each other, as opposed to criminal law which (broadly) deals with the obligations we have to the state.

In essence: in civil law you can sue or be sued, and in criminal law you can be prosecuted or not prosecuted.

Civil law – especially contract law – is fascinating, and this post takes a topical legal agreement as the basis for explaining about civil law generally and contract law in particular.

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The topical legal agreement is the recently disclosed settlement agreement between Virginia Giuffre and the now dead Jeffrey Epstein, on which (Prince) Andrew is currently seeking to rely in American litigation.

I have chosen this as a topic because it is rare for the substance of any legal agreement to be newsworthy – and legal commentators have to take our examples as we find them.

I have no view on the underlying litigation as I do not know the facts – and I have no particular view on Andrew other than a general preference for republican government and a disdain for inherited titles.

My sole purpose in this post is to use a topical legal agreement for promoting the public understanding of law.

(By way of background, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation, and this post draws on principles I believe are common to English and American contract law.)

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Let’s start by looking at the agreement – click and open tab here.

It is, in essence, a seven-page agreement – and so pages 2 to 8 of the pdf are the ones to focus on.

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A preliminary question is how seriously we should take the agreement as something agreed to by both Epstein and Giuffre – was it a one-sided imposition, or something freely negotiated with both sides getting legal advice?

Clause 9(c) tells us ‘This Settlement Agreement was negotiated and entered into by the Parties with the advice and assistance of respective counsel.’

This means that it is not, say, a standard form contract – but one which has been negotiated by lawyers with each party having legal advice (and the lawyers are even listed at the end of the document).

This in turn means a court will take seriously what was agreed, and it will seek to give effect to what was agreed between the legally advised parties.

This is reinforced by clause 9(a), which provides that the parties ‘confirm and acknowledge that this Settlement Agreement is being entered into without any duress or undue influence, and that they have had a full and complete opportunity to discuss the terms of the Settlement Agreement with their own attorneys.’

Of course, such a provision can – in principle – be disapplied if it is factually untrue and there was actual duress.

On the face of it, this was not an agreement imposed by one party on the other, but one which was negotiated by both parties with the benefit of legal advice.

So, again on the face of it, this is an agreement by which both Epstein and Giuffre intended to be bound.

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With that preliminary question addressed, we come to the first big question.

What was the purpose of the agreement?

This is what can be called a question of construction – putting together the agreement as a whole so that we can then, as the next stage, interpret any constituent part.

With any legal instrument, and especially contracts, construction precedes interpretation.

Here there is a clue to the purpose in the title: Settlement Agreement and General Release.

This title indicates the agreement is doing two things – and you will see that these two things are, in turn, set out respectively in clauses 1 and 2.

But before we get to clauses 1 and 2 we can also see, almost as a recital, that the parties Giuffre and Epstein both entered the agreement so as to ‘resolve the pending litigation’ between them.

This litigation is then set out in clause 1: the parties agree to dismiss a civil claim brought by Giuffre against Epstein in the Florida courts.

But clause 1 only covers part of what was agreed.

For clause 2 then sets out the General Release.

This further provision sets out a more general release than ending one particular case.

Here Giuffre accepts a substantial sum (US$500,000) – as opposed to say a nominal sum – in return for the release.

In respect of Epstein the release provides that Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein][…] from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein […] for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’

This is a comprehensive list of things for which Giuffre agrees she cannot now sue Epstein.

Epstein was not only released from the current case but other cases, State and Federal.

If Giuffre was ever to litigate against Epstein again, then Epstein’s lawyers would have sought to rely on this release and have the case thrown out.

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But.

The release is not just in respect of Epstein, but also for other persons.

I will now quote the provision again but with what I had omitted now in bold:

Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein] and any other person or entity who could have been included as a potential defendant (“Other Potential Defendants”) from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein, or Other Potential Defendants for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’

These provisions in bold purport to extend the General Release granted to Epstein to other persons or entities – to give them exactly the same protection from further state and federal lawsuits as Epstein.

The term in bold, however, is not clearly drafted.

One reading is that the Other Potential Defendants are those who, on the facts alleged in the Florida litigation, could have been added as defendants to that litigation.

This would perhaps make sense as a matter of construction, as this agreement settles the case in respect of civil wrongs – torts – alleged to have happened in respect of which the Florida court had or has jurisdiction.

This reading is reinforced by the provision in clause 1 that the Court will be asked to retain jurisdiction to enforce the terms of this settlement agreement.

Clause 7 expressly provides that the parties envisaged this matter also capable of being litigated in federal courts (bold added):

‘In the event of litigation arising out of a dispute over the interpretation of this Settlement Agreement, the prevailing party shall be entitled to recover its cost of litigation, including attorneys’ fees and other reasonable costs of litigation. Should the federal court not retain jurisdiction, the Parties (and any third party) agree that the courts of the 15™ Judicial Circuit of Palm Beach County shall have exclusive jurisdiction over the subject matter and shall have personal jurisdiction over the Parties (and third parties).’

What the agreement does not seem to envisage, however, is the matter being litigated in another state, other than Florida.

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In my view, the General Release probably should be constructed as providing protection to Other Potential Defendants in respect of the issues raised in the Florida proceedings.

(This narrow construction would be notwithstanding the General Release is in more general terms than the dismissal in clause 1.)

So, if Andrew – by reasons of residence/jurisdiction, or the facts alleged by Giuffre in the Florida case – was not capable of being a defendant to the Florida proceedings then – as a matter of construction – then it is difficult for me to see how he can take the benefit of the General Release.

The agreement would not have been for him.

In essence: if Andrew could not have been jointly or separately liable for the tort claim within the Florida jurisdiction then the General Release may not apply.

That said: a judge could take a wider view of what the General Release covers, and that it covers not just the Florida allegations.

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There is, however, a possible problem here for Giuffre’s lawyers – for the term Other Potential Defendants must mean something.

The term Other Potential Defendants cannot mean nothing – for this is a negotiated and formal agreement, and the presumption is against surplusage.

If Giuffre’s lawyers contend that the General Release does not extend to Andrew, they must be able to explain who actually was to be covered by by the term Other Potential Defendants.

What Giuffre’s lawyers need to be able to do is to show who would be in the class of Other Potential Defendants – if not Andrew.

And if they can give a plausible meaning to that phrase without it including Andrew then they will address this problem.

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Now we turn to interpretation, as opposed to construction.

Some commentators, with little or no background in contract law, have gone straight to the term Other Potential Defendants and speculated what that phrase could mean.

But a clause is not a legal instrument, and still less a selected quote from a clause.

Yes, Andrew – like you reading this – is a potential defendant: indeed everyone other than Giuffre is.

But a settlement and a General Release in respect of a Florida case is unlikely to create a legal basis of releasing all potential defendants everywhere in the world in respect of any claim brought by Giuffre about anything – not least because the Florida court would not have jurisdiction to enforce such a general release.

In whatever way Other Potential Defendants is to be interpreted as including and not including, it is not an exercise in anything goes.

Other Potential Defendants cannot be interpreted as including Andrew if, as a matter of construction, the agreement would not apply to him.

On the other hand, if Andrew could plausibly have been added as a defendant to the original Florida case, then the phrase can be interpreted so as to include him.

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But.

Even if the agreement can be constructed so as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, there are two further problems for his lawyers.

The first is that, whatever is said on the face of the agreement, there can be rules of law and public policy that may preclude reliance on such an agreement by a defendant in another case in another state.

The essence of Andrew’s objection is that Giuffre should not be allowed to sue him for alleged civil wrongs – that she should not even have access to a court for a determination of her case.

No court will simply nod-along with such a contention – it is a serious matter to remove a person’s right of access to a court.

And so even if Andrew can be brought within the terms of the General Release, a judge may find as a matter of policy that the claim brought by Giuffre should be heard anyway.

A court, of course, would not be likely to do this if the claim was brought against Epstein (or his estate), as he was full square within the terms of the General Release.

But Andrew is at least one step away.

The second further problem is that, even if the agreement can be constructed as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, it may not be legally open to Andrew directly to enforce the provision.

Andrew was not privy – that is, a party – to the original agreement (and, indeed, he is not even named).

This legal principle of privity of contract prevents a stranger to a contract either taking the benefit or bearing the burden of an agreement to which they are not a party.

In essence: it would have been for Epstein (or his estate?) to enforce the term protecting Other Potential Defendants, and not Andrew or another potential defendant directly.

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For completeness, you will see the agreement also provides the following:

‘It is further agreed that this Settlement Agreement represents a final resolution of a disputed claim and is intended to avoid litigation. This Settlement Agreement shall not be construed to be an admission of liability or fault by any party. Additionally, as a material consideration in settling, First Parties and Second Parties agree that the terms of this Settlement Agreement are not intended to be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal.’

Some commentators have leapt on this provision, but I do not think it takes us in any direction very far (though the judge may disagree).

It is not Giuffre who is seeking to rely on the settlement agreement – but a third party.

And the terms are not being relied on by Andrew as admissible evidence of liability or otherwise, but on a question of law in respect of jurisdiction.

*

As I aver above, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation.

But even if this agreement were under English law, I could not confidently predict what a judge would do.

This is because the agreement – while clear in its primary aim of protecting Epstein from further suit – is not clear about third parties, and this is no doubt because that the position of third parties was not the main purpose of the agreement.

The agreement has been taken from its primary context of protecting Epstein and into a context which the parties perhaps did not envisage.

And so it is not a surprise that the agreement is less clear in this context.

Had the lawyers for the parties in this agreement expected this contract to be used by third parties, then the provisions in respect of third parties would be set out more clearly – but they did not, and so they are not.

*

We are currently awaiting the judge’s decision on whether Andrew can rely on this agreement.

In my view, Andrew’s lawyers have the far harder task.

They have to show that, as a matter of construction and interpretation, the General Release covers him when he is not named and is not a party to the agreement; that no rule of law and policy means he loses that protection; and that he can enforce the protection regardless of the lack of privity.

All this, so as to extinguish Giuffre’s right of access to the court, which no court will do lightly in any case.

Giuffre, in turn, only has to succeed on one of these points – though her lawyers will need to explain what Other Potential Defendants means if not the likes of Andrew.

And even if Andrew succeeds on this technical defense, Giuffre may still win on appeal.

In summary and in conclusion: Andrew’s lawyers should be prepared to defend the substantial claim, rather than to rely on this technical defense.

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Why judges may not be the best people to chair public inquiries

16th December 2021

Yesterday it was announced that the forthcoming Covid public inquiry will be chaired by Heather Hallett, the former appeals judge with an outstanding reputation as a lawyer.

Nothing in this post should be take to gainsay that appointment.

Instead, this post examines the general question of whether judges – or barristers – are really the best people to chair public inquiries.

In the United Kingdom judges are not usually investigators.

Instead the facts and documentary evidence on which they are to decide cases are put together by the parties to the case and their lawyers.

A judge will – despite spirited fictional depictions – not go and find out new facts and evidence for themselves.

In turn: most (though not all) judges are also barristers.

Many barristers also do not go and find out new facts and evidence in the case on which they are instructed: the facts and documentary evidence are provided to them usually by instructing solicitors or other professionals.

In essence: for all their many undisputed skills and talents, little in the background of judges and barristers fit them to be investigators.

Any investigations are normally conducted by others.

Once the evidence has been put together, judges and barristers will then often be very good at assessing and weighing that evidence, and in applying that evidence to the law (and applying the law to that evidence).

But the uncovering of the primary facts is normally done by others.

This is why – especially in civil cases – it is those who have the best controls over the flow of evidence that will tend to control the verdict.

And this is also why many public inquires are (or seem) to be ‘whitewashes’.

This is not (usually) because the head of the inquiry deliberately wants there to be a ‘whitewash’.

The ‘whitewash’ is often further upstream – in how the evidence is presented to the inquiry.

As techies say: garbage in, garbage out.

I know this, in part, because I used to work with public inquiry lawyers when I was a central government lawyer.

They worked backwards from the outcome they wanted to achieve so as to marshal the appropriate evidence.

That was their job.

So what is needed in the head of any inquiry is to have someone who is not reliant on the nicely packaged evidence and facts as put together by skilled and experienced public inquiry lawyers.

But to have someone with the skills and experience to get to the facts and evidence that powerful parties may not want to have put before an inquiry.

A person who will use the statutory powers available to public inquiries for compelling evidence, so as to balance the experienced public inquiry lawyers doing whatever they can to avoid putting certain evidence in.

Sometimes this person may be a judge, but sometimes it may not be.

But there is nothing particular in the background of most judges and barristers that equips them for investigating things.

Garbage in, garbage out.

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This daily law and policy blog needs your help to continue for another year – for the benefit of you and other readers.

Each free-to-read post takes time and opportunity cost.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

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The boon of published sentencing remarks

15th December 2021

One good thing for the public understanding of the law that has come from the internet is the publication of ‘Sentencing Remarks’.

These are not judgments – at least in a legally technical sense – but explanations by a judge about how they gone around setting the sentence of someone guilty of an offence.

Today there are two sets of sentencing remarks about highly unpleasant and disturbing cases (both of must have a content warning).

Some may want to read them for their grisly detail.

However the rest of us – especially students of law and others with an interest in the legal system – will be able to gain fascinating and detailed insights into investigations, prosecutions and sentencing.

In the olden days, these remarks were never normally available – one would have to rely on any news reporters in court, and one would then have to depend upon on the edited (and editorialised) news reports.

Now, you can read the judge’s words for yourself – and form your own view.

You may still think after reading remarks that a sentence is too low or too high – but you will at least be able to inform your view with how the sentence has been arrived at.

The best way to keep up is to follow the England and Wales judiciary’s Twitter account or to visit their site from time to time.

The regular publication of these remarks will not, by themselves, cure the promotion of misinformation about law generally and high-profile cases in particular.

But the more they become part of the normal information openly available about cases and the criminal law in the news, the better the general knowledge of the criminal justice system.

They are a boon to the public understanding of law.

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