Category: Litigation

Sir Keir Starmer and the Litigation Turn of Mind

31st July 2023

The leader of the opposition is a former litigator, and many litigators have a certain strategy – or at least a set of tactics: a certain cautious approach.

This approach is to think backwards from what may happen at trial – indeed sometimes to think backwards from what may happen with any appeal.

This sort of litigator anticipates what can go wrong with a case and thereby acts to, as far as possible, close the potential problem(s) down.

Other litigators can be more gung-ho, trying to make the most of their case at each and every point, from aggressive letter before action to expansive claim forms. Such litigators often encounter set-backs.

The more cautious litigator looks at everything the other way round, focussing on the strengths of the other side and the weaknesses of their own.

The merit of this approach is that if and when one gets to trial one is less exposed to defeat.

And often not being defeated on key points is enough for a good result.

If both sides adopt this approach then the “winning” party will be the one who has made the fewer mistakes.

But.

Politics is not law, and a general election is not a trial.

Yes, there is a place for mitigating or even eliminating predictable lines of attack.

And that may be enough for a political party to at least avoid a heavy defeat.

It may not, however, be enough to mobilise sufficient support so as to make an outright victory more likely.

For that there needs to be a positive message: to have points that the other party instead needs to mitigate or eliminate.

This is not to say that closing down lines of attack is a bad thing, just that it is not a sufficient thing.

A cautious litigation turn of mind has its place, but campaigning is not litigation.

A political leader – even those who were once lawyers – also needs a political frame of mind.

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A close reading of Twitter’s legal letter to Meta: a guided tour of a weak litigation letter

7th July 2023

This is a close reading and exposition of the letter sent on behalf of Twitter to Mark Zuckerberg, the chairman and chief executive officer of Meta.

The letter is dated 5 July 2023 and has been published at the Semafor news website.

For the reasons set out below, this letter reads to this English litigation lawyer as being weak. Perhaps that view is wrong, and that there is some super-duper legal-magic which an American lawyer can see in this letter and which this post cannot.

But unless there is something which this post is missing, this is about as weak a litigation letter as can be, without the letter saying nothing substantial at all.

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Please note that I am not an American lawyer, and so everything which now follows in this post should be read subject to this proviso.

In particular, I am an English lawyer (though trained at an American law firm in London) with twenty years of various experiences as a litigator, usually for potential defendants at early stages of disputes. This means I have read more litigation letters than is good for any human being.

Litigation letters really do comprise an odd and distinct genre of literature.

There is sometimes a lot going on – and sometimes a lot not going on – in a litigation letter.

You need to be able read what is there, and to work out what is not there.

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Let us begin with the first paragraph of the the letter sent on behalf of Twitter to Meta:

First you will see the strange “as successor in interest” formulation of who the letter is being sent on behalf of. This is because of this recent business news:

Nothing in this post rides on this strange formulation, but it is worth noticing in case X Corp ever needs to establish any legal rights to sue.

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What is more immediately interesting is the “Based on recent reports…”.

This is early warning sign of a weak letter.

The letter could say “we have direct evidence” or even “we have in our possession documentary proof which we attach”.

But the letter does not say either of these things.

Instead, the sender states that the evidence is only (news) reports.

The letter then connects these “recent reports” to “serious concerns”.

Again, this is mild.

There is no allegation of breach – just a statement of “serious concerns”.

A strong letter would begin with something like “we have in possession direct evidence [or proof] that [you are in breach of the following legal obligations]”.

But this letter backtracks straightaway from any such a robust position.

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The first paragraph then seems to become aggressive: “systemic, wilful, and unlawful misappropriation”.

To an unexperienced eye this looks striking – and it is intended to look striking.

But such strident words have already been weakened by the framing.

Compare and contrast:

“we have in possession direct evidence that you are engaged in systemic, wilful, and unlawful misappropriation in breach of your legal obligations”

with

“based on reports we have concerns that you are engaged in systemic, wilful, and unlawful misappropriation”.

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From this very first paragraph this does not look like a serious letter.

If the author of the letter could have put the allegations more highly then they would have done, but they did not.

And this is no doubt because they could not.

As a genre of literature litigation letters are often far more significant for what is not said than for what is said.

(This is perhaps the only thing litigation letters have in common with the prose of Jane Austen.)

A non-litigator may read such an opening as in this Twitter letter and be worried at what is said; but an experienced litigator will read that paragraph and will spot what is not said.

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Now the second paragraph:

We know from the first paragraph that the allegation made in the second half of this paragraph is based on reports rather than on any other evidence and so this paragraph has to be read with this in mind.

As such the allegation is nothing more than a supposition.

The language “deliberately assigned…specific intent…in violation of…” again looks forceful, but is based only on (news) reports. No evidence is offered, let alone any proof.

(And in any case Meta denies any Threads engineers are former employees of Twitter.)

There are also no specifics in this paragraph – no particularisation at all.

There is instead the vaguest possible reference to“trade secrets and other intellectual property”.

Patents? Copyright? Trademarks?

Who knows?

Perhaps nobody knows.

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The third paragraph goes over the page:

Here we have“highly confidential information” now thrown in as well, but again without specifics or particularisation.

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Then there is the deft but weak “intends to strictly enforce”.

This is not even a clear and present threat to sue.

It is at best a threat to possibly sue in the future, maybe.

The “reserves all rights” is also a weak sign.

The relevant rights of Twitter will presumably exist regardless of any formal statement of reservation.

If Twitter is able to obtain civil remedies and an injunction without notice then it does not need to tell Meta that it is formally reserving its rights. Such words are ornaments not instruments.

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And now look at what is not here: there is no deadline.

There is no ultimatum.

There is no “unless [x] by [y date] then we are instructed to do [z]”.

Nothing.

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Now onto the fourth and penultimate paragraph:

This is framed as a warning.

But it is a warning that does not substantiate anything so far in the letter.

In essence, Meta is merely being told to conduct itself lawfully.

There is no evidence, still less proof, that Meta is doing any of the things mentioned unlawfully – just a bare accusation.

And again, as in the previous paragraph, there is no deadline or ultimatum for Meta to say it will comply with this demand.

There are no requests for undertakings.

Twitter also “reserves all rights” – but nothing in this paragraph sets out how those rights are going to be enforced.

This penultimate paragraph is thereby again just decoration.

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And now the final paragraph:

At last there is some substance to the letter, but not much.

In English civil litigation there is an obligation on potential parties to a possible dispute to retain relevant evidence if they are aware that litigation is contemplated. I suspect there is a similar obligation in American civil litigation.

But in England sending a letter only to put a party on notice to retain documents for possible litigation is about level one on the litigation Richter scale.

It is the least possible substantial reason to send any litigation letter.

Such notice can make a legal difference in that Meta cannot now deny it is aware that litigation is contemplated.

This demand at least looks as if a litigation letter is doing something: that the letter is justified in its existence.

But this is a weak final paragraph to a litigation letter.

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Taken in its entirety the letter is a bundle of suppositions, bare accusations, and reservations of (already existing) rights, with a small blow of the litigation trumpet with a notice to retain documents provision in the last paragraph.

No evidence is provided or even mentioned, let alone proof; there are no specifics or particularisations; no precise laws are cited; and there are no deadlines or ultimatums; and no demands for undertakings.

The letter does not even ask for a response – such as an undertaking or confirmation.

(And one thing a wise litigator does with a weak letter is not to ask for a response, as it looks yet weaker when no response will be coming.)

Overall, this is the weakest possible letter that could have been sent on behalf of Twitter to Meta – that is other than the letter having no substance at all.

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Litigation letters have many (potential) audiences.

The best ones are written with the court in mind: how would this letter look to a judge? Those letters are the scary ones – and paradoxically the letters which are most likely to mean a case is resolved before court.

(The best way to avoid going to court in civil litigation is to prepare for court.)

Good litigation letters will also force the other side and their lawyers to think about their legal position afresh.

And then…

…there are letters which are the consumption of the client and/or the media.

Some clients sometimes demand that such a litigation letter is sent even when there is little or no case, and this is the sort of letter that gets sent in those circumstances.

The audience for this sort of letter is not the other side, still less the court, but the client itself – and perhaps the public and media.

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Perhaps evidence will come to light of wrongdoing by Meta.

Nothing in this post – a disclaimer! – should be taken to mean that there is no possible legal case that X Corp can bring to enforce its rights against Meta.

But any such claim would require a very different letter to this one.

And that would need a very different letter – with evidence and specifics and particulars and deadlines and ultimatums. The sort of letter which this letter is not.

And if such a serious letter is sent (and published) then we will know that a serious legal situation is afoot.

But, for the reasons set out above, and from the perspective of an English litigation lawyer, this is not a serious letter.

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Understanding the government’s judicial review of the Covid Inquiry

2nd June 2023

The government of the United Kingdom has commenced a legal challenge to the recently established Covid Inquiry – an inquiry that this government had itself established.

In the words of the Covid Inquiry spokesperson yesterday:

“At 16:00 today the Chair of the UK Covid-19 Public Inquiry was served a copy of a claim form by the Cabinet Office seeking to commence judicial review proceedings against the Chair’s Ruling of 22 May 2023.”

 

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This is an unusual judicial review.

Usually judicial reviews are brought against the government, and not by the government.

This is because judicial reviews are the normal legal means by which the High Court can be asked to assess whether a public body is acting within its legal powers.

Here, however, it is the government asking the High Court whether the Covid Inquiry – in effect, another public body – is acting within its legal powers.

Unusual, yes, but not absolutely unprecedented, as Dinah Rose KC – one of the greatest judicial review barristers – has pointed out on Twitter:

 

But that said, this judicial review is still unusual.

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What is this judicial review about?

From a legal perspective, it is about one word: jurisdiction.

To understand this we need to dig into some of the legal background.

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First, the Inquiry was created under the Inquiries Act 2005 – and this makes the Inquiry, in the lovely phrases, “a creature of statute” or “a statutory creature”.

What this in turn means is that any inquiry created under the Act – the Covid Inquiry and otherwise – does not have universal or inherent legal powers.

An inquiry created under the Act only has legal powers within the scope of the Act – what lawyers call the “vires” of the Act.

An inquiry created under the Act thereby cannot do something “ultra vires” the Inquiries Act.

And if an inquiry does a thing ultra vires the Inquiries Act then that thing can be quashed or declared unlawful by the High Court.

Here the government maintains that the Covid Inquiry has done something ultra vires the 2005 Act.

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Now we go to the section 21 Notice issued by the Covid Inquiry on 28 April 2023, in which the Inquiry demands various documents from the Cabinet Office.

This Notice is the main target of this judicial review.

This Notice is what the government is primarily asking the High Court to quash.

This judicial review is not the first attempt of the government to dislodge the Notice.

The first attempt was an Application dated 15 May 2023.

This Application was made under a provision of the Inquiries Act which provides:

“A claim by a person that— (a) he is unable to comply with a notice under this section, or (b) it is not reasonable in all the circumstances to require him to comply with such a notice, is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”

But.

This Application was problematic.

You see, the Application was not actually asking the Inquiry to revoke or vary the Notice – both of which presuppose the Notice was valid in the first place.

No, the Application was telling the Inquiry that the Notice was outside the powers of the Inquiry.

As the Application stated:

“The Inquiry has no jurisdiction to request under rule 9, still less to compel under s.21, the provision to it of unambiguously irrelevant material.”

And the chair of the Inquiry picks this very point up in her ruling (emphasis added and the paragraph broken up for flow):

“I observe at the outset that I am far from persuaded that a wholesale challenge to the legality or vires of a section 21 notice is one that properly falls within the scope of section 21(4) of the 2005 Act.

“Although the application does not make this clear, I infer that it is made under subsection 21(4)(b) of the 2005 Act, which entitles the recipient of a section 21 notice to invite the Chair to vary or revoke the notice on the ground that “it is not reasonable in all the circumstances to require him to comply with [it]”.

“I understand that provision to apply to cases where the recipient of a notice accepts the notice’s validity, but wishes to engage with the Chair as to the reasonableness of complying with it. It does not obviously apply to a situation such as the present, where the recipient of the notice contends that the notice itself is unlawful.”

“The better procedure for raising arguments of that nature is, plainly, an application for judicial review.“

The chair was right – and this response indicates that she and her advisers may understand the scope of the Inquiries Act very well.

The government may have spent substantial public money on instructing the government senior external lawyer to put together a ten-page application, but ultimately the Application was the wrong horse on the wrong course.

A challenge to the jurisdiction of the Inquiry to issue the Notice should be done by judicial review – that is a formal action at the High Court.

Perhaps the government used the Application as a tactic just to get the Inquiry to change its mind, or at least state its legal position expressly – a previous post on this blog described the Application as, in effect, a letter before action.

And the Application did get the Inquiry to set out its legal position explicitly.

But the challenge the government does want to make to the Notice – and also to the Inquiry’s ruling – should be done by means of a judicial review.

Now it is.

And here is the government’s statement of facts and grounds.

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What are the merits of the judicial review – that is, will the government win?

To the extent that that the government seeks to rely on the Human Rights Act and privacy rights under Article 8 of the European Convention, the government warrants all the mockery it is getting.

This is the very government that is seeking to repeal the Human Rights Act and make it harder for claimants to rely on Article 8 privacy rights.

But.

There is more to the government’s legal case than that – and there is perhaps a route to the government succeeding at the High Court – or on appeal.

Here we need to go back to the Inquiry being a creature of statute.

This means that it is not open to the Inquiry to do just what it wants and to ask for whatever it wants.

The Inquiry can only do things and ask for things within the corners of the Inquiries Act – as augmented here by the Terms of Reference of the Inquiry.

The government is unlikely to win the judicial review with wide-ranging claims about general principles of “unambiguous relevancy” or otherwise.

If the government does succeed then it will be because that, in this particular case, the correct construction of the Inquiries Act, taken in tandem with the Terms of Reference, mean that, on this one occasion, the Inquiry has done something outside of its legal powers.

If the government can show this, then the Covid Inquiry loses – and the Notice falls away.

But.

The Covid Inquiry will also have been aware of this potential legal challenge when putting the Notice together, and it would seem that the measured content of the Notice and the precision of its requests place the Notice within the scope of the Inquiries Act when read with the Terms of Reference.

In other words, the legal(istic) “prep” of the Covid Inquiry for this potential challenge was started long ago, and – unlike the impression given by the Cabinet Office – not in a rush over the last couple of weeks.

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Finally, let us consider the greased piglet.

The former Prime Minister Boris Johnson is currently making more mischief than a dozen lords-of-misrule.

He appears to want to single-handedly sabotage the government’s legal case:

On this, let us be careful.

There is industrial-scale misdirection afoot.

Let us wait to see what is actually disclosed – and how the Inquiry assesses that disclosure.

And note in Johnson’s letter, at the seventh paragraph, the deft and camouflaged  “relevant” – and also note who he is proposing to conduct this all-important search.

We should not get too excited at such claims.

But that said, the sudden rampaging entry of Johnson into this otherwise delicate judicial review is extraordinary.

This is such an unusual judicial review – and in more than one way.

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Disclosure: I am a former central government lawyer.

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Tick tock, tick tock Cabinet Office – the Covid Inquiry stand-off this weekend

26th May 2023

My post on former Prime Minister Boris Johnson and the Cabinet Office lawyers should be ready to be posted on Monday, so in the meantime this post is about the stand-off this weekend between the Cabinet Office and the Covid Inquiry.

To recap: the Covid Inquiry has immense legal powers, and it has exercised one of those powers in serving a formal section 21 notice on the Cabinet Office.

This means that unless it has a legal reason not to do so, the Cabinet Office now has to comply with that request on pain of criminal sanction.

For inquiries under the Inquiries Act are powerful legal creatures, and their formal requests are not to be taken lightly.

See my previous post on this here.

The section 21 notice was dated 28 April 2023.

And you will see in the appendices the requests for information in respect of Johnson.

The deadline for the Cabinet Office to comply with the notice has now been set by the Inquiry chair to be 4pm on 30th May 2023 – that is this coming Tuesday

Remember Monday is a bank holiday.

And today is Friday.

The initial response of the Cabinet Office was to instruct the government’s senior external lawyer – at presumably great public expense – to make a legal(istic) objection to the notice.

The Inquiry chair deftly put that Cabinet Office legal application back in its box by a ruling this week.

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There now seems to be four possible outcomes of what is now a stand-off.

1. The Inquiry may extend the deadline again, but there is no evidence this has happened.

2. The Cabinet Office may comply with the request and provide the all information requested by Tuesday.

3. The Cabinet Office may not comply with the request, and it will provide either none of the information requested or not all the information requested – in effect daring the Inquiry chair to commence criminal proceedings which will then presumably be defended or otherwise challenged.

4. The Cabinet Office may make an urgent application to the High Court to either injunct the inquiry or quash the notice (or some other remedy) before the deadline of Tuesday.

If the choice is (4) then there really is not a lot of time.

I understand the Cabinet Office is considering its next step on the question of disclosure of what it unilaterally deems “unambiguously irrelevant” material.

We can bet it is.

But the stakes are now high – and there is not a lot of time to leisurely consider the position.

Unless there is an extension, the Cabinet Office has to decide before Tuesday whether to comply, to challenge, or to risk criminal sanctions.

Presumably the final decision is now with someone sufficiently senior who will then have to account for their decision.

But if the decision is to bring a legal challenge, there is almost no time left.

And if the Cabinet Office does not bring a legal challenge, then the commissioning of that expensive legal application from the so-called Treasury Devil looks a waste of public money.

If that application was sincere then the government’s position is that the Covid Inquiry chair is acting outside of her legal powers.

But if the Cabinet Office do not now go through with a legal challenge then it looks as if that application was made for tactical reasons, simply because the government does not want to disclose the documents.

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Which side will blink?

And if the government does not disclose the information requested, will the Covid Inquiry chair commence criminal proceedings against the government?

The impression given by her ruling this week is that she means business.

But how the Covid Inquiry chair responds to anything less than full disclosure by the Cabinet Office on Tuesday will indicate whether that business-like impression is correct.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Somebody should copyright “flawed music copyright cases” so as to avoid future abuses

4th May 2023

Another flawed musical copyright case.

The news from the Manhattan court is that Ed Sheeran has won the latest case.

These cases are not about piracy and bootleg copies being made for sale.

These case are also not even about samples being lifted.

They are about mere chord progressions.

As Sheeran’s lawyer avers: “the letters of the alphabet of music”.

These are the cases that bring discredit on media and copyright law – and also perhaps show a misunderstanding of how music is composed and how music develops.

We should just wish that the very notion of bringing such flawed cases could themselves be subjected to the law of intellectual property.

And then potential plaintiffs could just be sent a “cease and desist” letter – and so be stopped immediately in their, ahem, tracks.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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The BBC and impartiality – a sideways glance from the courtroom

13th March 2023

What follows is an analogy – and all analogies in human affairs are inexact, and this is because no two situations involving people are identical absolutely.

If your mind starts racing along the lines of “they are not the same” – I agree, and I can think of many points of contrast too.

But bear with me, as the points of comparison may be interesting and even thought-provoking.

(And any comments underneath which just list differences will probably not get through moderation.)

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Imagine a court judgment – in a civil case where there has been a trial.

That there was a trial implies there was more than one side – and this in turn means that on at one least issue there was a difference of view.

Imagine reading that judgment.

The judge sets out the applicable law.

If there is a dispute as to the applicable law the judge sets out the submissions of the parties and why one view of the law was preferred instead of another.

(Sometimes a judge may provide their own view of the law and why that is to be preferred instead of the views of the parties.)

If there is a dispute as to the applicable facts then the judge will often set out why the evidence of one party was to be preferred to another.

If the factual dispute is complex then a good part of the judgment will be devoted to setting out why one set of facts was preferred to another – whether the evidence is witness evidence, or in the form of exhibits, or contested expert evidence.

And the judge is required – by the rules of natural justice no less – to decide the dispute impartially and having given each side a fair hearing.

What the judge will not do – even though they are duty-bound to be impartial – is to treat both sides as having equal weight and not make any material decisions at all.

This is because the obligations of impartiality and to hear each side go to how the judge approaches their task of exercising their judgement, rather than being reasons to not make any evaluation at all.

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Now let us turn to the BBC.

The BBC charter provides (among other things) that the purpose of the corporation is “to provide impartial news and information to help people understand and engage with the world around them: the BBC should provide duly accurate and impartial news, current affairs and factual programming to build people’s understanding of all parts of the United Kingdom and of the wider world. Its content should be provided to the highest editorial standards.”

The charter also states “the BBC should provide high-quality news coverage to international audiences, firmly based on British values of accuracy, impartiality, and fairness”.

And:

“The Mission of the BBC is to act in the public interest, serving all audiences through the provision of impartial, high-quality and distinctive output and services which inform, educate and entertain.”

Under section 319 of the Communications Act 2003, the Ofcom code must ensure “that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with”.

Section 320 of the same Act provides that the impartiality requirements include “the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters”.

The 2022 framework agreement between the government and the BBC provides that the BBC board should “ensure in particular that any such guidelines set appropriate standards to secure the fairness, due impartiality, due accuracy and editorial integrity”.

You get the message.

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The obligation of “impartiality” is as (ahem) enshrined in the instruments that govern and regulate the BBC as much as they are for any judge.

But impartiality does not necessarily mean facile both-sides-ism.

For these instruments also refer to the following (emphasis added):

“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions […]” (The Charter)

“the desirability of maintaining the independence of editorial control over programme content“ (section 319 of the Communications Act)

“The UK Government will continue to recognise and respect the editorial, creative and operational independence of the BBC, as set out in the Charter.” (2022 framework agreement)

And so on – there are many more.

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None of the instruments that govern and regulate the BBC provide that impartiality should mean an absence of editorial judgment.

Indeed, for like a judge who approaches their task with impartiality, the editor of a news programme also should exercise their editorial judgement with impartiality.

But there is still an exercise of judgement.

Impartiality – at least in the courtroom – does not mean that each side should be treated as being equally compelling.

And it should not in a newsroom either.

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Private nuisance and Tate Modern

13th February 2023

Over at Prospect I have an article about the Tate Modern privacy case.

Click here (even if you do not read it).

As the article shows, I am no fan of either the new Tate Modern building or the blocks of flats facing it.  I have always thought it is better to live inside an ugly building looking at a nice building, rather than living in a nice building looking at an ugly building, and the sad predicament in the Tate Modern case is that you have two ugly buildings facing each other.

And like many people, I instinctively sided with the art gallery, as at least the public gallery was a public good, and that offset the private inconveniences of the wealthy leaseholders.

But.

As I read the case reports carefully, and the majority opinion of the Supreme Court in particular, I found it hard to legally fault the final decision:

– High Court decision

– Court of Appeal decision

– Supreme Court decision

If there is to be a law of private nuisance then this seems to be the correct application of that law.

My lingering reaction is to wish that only privacy rights were as easy to enforce in non-property cases.

Anyway, you can read the article here – and please comment below.

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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, or if they risk derailing the discussion.

Beware of judges employing rhetoric: a note on Lord Denning and his “appalling vista”

3rd February 2023

Yesterday on this blog there was a quick post on the Tate Modern privacy/nuisance case – and I am delighted that I have now been commissioned by Prospect magazine to do an online in-depth analysis of this fascinating case about the clash of public spaces and private rights.

The point of the quick post yesterday was not to offer any considered view on the Tate Modern case (on which I actually have not formed a view) but to point to a conspicuous absence in the judgment.

It was odd that the famous speech of the former Master of the Rolls Lord Denning in the 1977 nuisance case of Miller v Jackson was not mentioned, and nor indeed was Denning himself, given this is one of the most famous speeches in the history of English law.

That speech begins as follows (and I have broken out the sentences):

“In summertime village cricket is the delight of everyone. 

“Nearly every village has its own cricket field where the young men play and the old men watch. 

“In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. 

“They tend it well. 

“The wicket area is well rolled and mown. 

“The outfield is kept short. 

“It has a good club-house for the players and seats for the onlookers. 

“The village team play there on Saturdays and Sundays.

“They belong to a league, competing with the neighbouring villages. 

“On other evenings after work they practice while the light lasts. 

“Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore.

“He has issued an injunction to stop them. 

“He has done it at the instance of a newcomer who is no lover of cricket. 

“This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. 

“The animals did not mind the cricket.

“But now this adjoining field has been turned into a housing estate. 

“The newcomer bought one of the houses on the edge of the cricket ground. 

“No doubt the open space was a selling point. 

“Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. 

“His wife has got so upset about it that they always go out at weekends. 

“They do not go into the garden when cricket is being played. 

“They say that this is intolerable. 

“So they asked the Judge to stop the cricket being played. 

“And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. 

“The cricket ground will be turned to some other use.

“I expect for more houses or a factory. 

“The young men will turn to other things instead of cricket.

“The whole village will be much the poorer. 

“And all this because of a newcomer who has just bought a house there next to the cricket ground.”

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The leading legal commentator Joshua Rozenberg agreed about this conspicuous absence on Twitter:

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In the post yesterday I mentioned that I was not a fan of Lord Denning as an appeal judge, though I conceded that one cannot deny his quality as a wordsmith.

(Please note that this adverse view is not about Denning as a person, about whom I have no idea, but about the content and style of his judgments.)

One day I may write a fuller account of this adverse view, but in essence I hold this view for three reasons.

First, it seems to me that Denning’s judgments are often triumphs of form – indeed of rhetoric – over legal substance.

(Indeed, when I once read many of Denning’s judgments in succession, it felt as if he was even sometimes the prisoner, and not the master, of his style of giving judgments.)

Second, his freestyle use of law and equity created a great deal of needless uncertainty in areas of law where certainty is important, especially at appellate level.

(And the usual argument that this was for achieving justice in individual cases really goes to his deftness as a legal rhetorician: for it is difficult when reading his judgments not to sympathise with the party Denning wanted to win – “of course” they should win.)

And third, it is because his rhetorically impressive judgments often cloaked a very illiberal approach to the law and the rights of individuals.

For example there is his notorious 1980 speech in the civil claim brought by the then-imprisoned (and later rightly exonerated) Birmingham Six.

Here I will quote from that speech more fully than usual, so that you can see hos slow rhetorical build-up (and I have again broken out the sentences):

“In this case at the “trial within a trial” there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily.

“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.

“At the trial the same evidence about violence and threats was given all over again before the jury.

“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.

“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.

“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.

“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.

“It will take weeks and weeks.

“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.

“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.

“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .

“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.

“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.

“Whichever it is, the actions should be stopped.”

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Denning’s exercise in legal rhetoric is strikingly similar in style to his famous introduction to the 1977 case of Miller v Jackson.

But instead of the readers clapping and cheering, as most will do with the Miller v Jackson introduction, the only decent response to this Birmingham Six passage is disgust.

And this is why one should be wary of rhetoric in legal judgments – and indeed it is why we should be at our most vigilant when we find ourselves nodding-along with a rousing passage in any judgment – whether by Lord Denning or by any other judge.

Of course: judgments should be plain and succinct and comprehensible to non-lawyers.

But judges should leave the tools of persuasion to the advocates.

For if the judge has got the law right and the facts right, there is no need for the judge to also employ rhetorical devices so as to get you to nod-along with what they have decided.

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The Tate Modern viewing platform case – why did they not mention Denning?

2nd February 2023

In summertime the public viewing platform at Tate Modern is the delight of everyone.

Nearly every person can enjoy panoramic views of London, including into the rooms of neighbouring apartments, for which well-off people have paid – and they do not want other people to watch.

The platform will probably now be turned to some other use.

The whole of London will be much the poorer.

And all this because of those who have bought flats there next to the Tate Modern.

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Yes, this brief post is about the Supreme Court judgment in the “nuisance” case about whether local residents have a claim in respect of Tate Modern’s use of the top floor of its Blavatnik Building as a viewing platform.

A detailed look at this fascinating case is a subject for another post.

But, in the meantime, it is remarkable that one person who was not named in the judgment, the former Master of the Rolls Lord Denning.

I am not a fan of Lord Denning as an appeals judge, but nobody can deny his skill as a wordsmith.

And one of his most famous judgments was in the minority in the 1977 case of Miller v Jackson.

It is a case known to every student of English law.

This was a case about a village cricket pitch which, the plaintiffs contended, constituted a nuisance to the adjacent properties.

The case of Miller v Jackson is mentioned a few times in the Supreme Court judgment, but Denning’s famous minority speech is not alluded to – and he is not named whatsoever.

This can only be a deliberate omission, given the sheer fame of that Denning speech.

We should be impressed by the self-restraint of the Supreme Court judges not to mimic or even refer to the famous speech by Denning.

A temptation that cannot be resisted, however, by far lesser legal minds.

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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, or if they risk derailing the discussion.