Category: Litigation

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.)

*

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.

*

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.

*

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.

*

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.

***

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.

More on the comments policy is here.

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.

****

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.”

*

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

*

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.”

*

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.

****

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.

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.

*

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.

****

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.

This week’s Substack essay – the Taff Vale case of 1901

29th January 2023

Over at Substack, this week’s essay for paying subscribers is on the Taff Vale case of 1901, which is generally regarded as the important trade union case in British history.

In that case the House of Lords held that a trade union could be sued for the damages caused to an employer by wrongful acts.  This exposed trade unions to significant legal peril when taking industrial action.

In my post I set out how the law and world view of the time, especially in respect of “economic torts”, meant that the trade union lost the case and why the labour movement had to look to parliament for legal change.  I also put the case in a context of other trade union cases of the time.

*

Every weekend I do an essay for paying subscribers, in addition to the free-to-read law and policy topical commentary on this blog every weekday.

The essays are on aspects of legal history or the relationship between law and lore or popular culture.

Previous essays have been on:

Malone (1979) – which is for me the one case from the last fifty years which signifies the most about our constitution;

The origin of Wednesbury unreasonableness (1948) – the notion that a public body can make irrational decisions, as long as those decisions are not so unreasonable that no public body would make them; and

Dr Bonham’s case (1610) where a great judge said that there were limits to what could be done with an Act of parliament.

Like a Marshall Cavendish part-work publication of yesteryear, I am hoping these essays will build up to be an interesting library and resource in their own right, but without the dinky plastic models

*

I have also posted the essays at Patreon for my Patreon supporters, and Patreon supporters and anyone who made a PayPal contribution to this blog in 2022 can have a one-year full complimentary subscription – just leave a “Private” comment below.  It is important that nobody pays “twice” for my drivel.

Thank you all for following this blog.  I would like to keep the topical commentary free, and these essays on less immediately topical subjects are a way of cross-subsidising the daily free-to-read topical posts.

****

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.

What is the remedy? And why this question matters in public interest litigation.

6th December 2022

The Good Law Project has lost another court case.

This was the use by government of WhatsApp, about which there was political controversy.

But.

Towards the end of the judgment there are these two paragraphs (emphasis added):

70. In the light of our conclusions, both the appeal and the Good Law Project’s claim for judicial review should be dismissed. We should, however, record that when permission to apply for judicial review was granted the Good Law Project had made a serious allegation (based on claims from the former Chief Advisor) that fake meeting records and notes were being made. Such conduct, if proved, would have been unlawful on a number of different public law grounds. The conduct was not, however, proved and the allegation was dropped without clear notice to the Ministers or to the court, as appears from [15]–[18] of the judgment of the Divisional Court.

“71. Thereafter the focus of the claim shifted to the breach of the eight policies. It was not, however, clear, at least until the draft order was produced on the second day of the appeal, exactly what relief was being sought. It is true that the particulars of the policies and the evidence suggesting breaches of the policies were not available at the time that the claim form and statement of facts and grounds were prepared. It is, however, also right to note that the policies and the evidence about breaches were disclosed by the Ministers and became known during the proceedings. The Good Law Project amended its statement of facts and grounds accordingly. But the claim for relief remained unparticularised in the amended Statement of Facts and Grounds. The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.“

*

This is a problem for a great deal of seemingly public interest litigation – and not just with this particular claimant.

(I think the GLP do some good things, though I am not an uncritical fan.)

There is a newsworthy wrong – a public grievance – and so somebody goes to court.

It is almost as if going to a court is an end in and of itself.

Litigation as theatre, or as therapy, or as a proxy for politics.

*

But.

From a practical lawyers’ perspective, that approach is back-to-front.

As a trainee and as a junior litigation solicitor, I was taught to always think backwards from the remedy.

The primary questions were: What is the actual remedy your client is seeking? And how do you go about obtaining that remedy?

Turning up to court with a sense of “what do we ask for now?” means, in my view, there has been a failure in litigation tactics or strategy.

Of course: sometimes where you can show there is a plain wrong, a judge may come up with their own remedy.

This is the sort of thing Denning used to do.

But a claimant or applicant must always be conscious as to what they are actually asking for from a judge.

*

This is not a problem about a particular claimant.

It is instead a wider problem about politically charged, crowd-funded and/or pressure group brought claims.

“We think this is wrong, so we are going to court!” is not sufficient.

What are you going to court for?

What are you asking the judge to do?

For as the judge here pointed out: “The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.”

Public outrage does not mean, by itself, that a judge can grant a remedy – or even find any legal breach.

It is not always the case that where there is blame there is a claim.

***

These posts are also crossposted on my new “law and lore” substack – please subscribe there if you can.

***

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box (above), or become a Patreon subscriber.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

Of “echo chambers” and “preaching to the converted”

10th November 2022

Some places – like courts and legislatures – have shared rules for discourse.

But courts and legislatures are not “echo chambers”.

Certain things are not readily said, and certain hard things are to be said softly.

This is not because there are not disputes – and some differences may be fundamental and life-changing.

It is because shared rules for discourse enable constructive engagements and facilitate important exchanges.

*

But.

For some on the internet, the slightest suggestion that there can be shared rules for discourse triggers (ahem) the instant accusation that you want to be in an “echo chamber” or that you “want to preach to the converted” or want to be in “a bubble”.

These phrases – clichés – are usually substitutes for thought.

Yet so accustomed are many to the shoutiness and rancour of internet exchanges that the merest suggestion that there can be shared rules for discourse is seen as some sort of assault on “free speech”.

Shared rules are not, however, undermining of dialogue – they instead make meaningful dialogue possible.

Shouting at people – either in real life or on the internet – is a form of monologue, especially if it inhibits the other person from engaging, or saying something they would like to say.

As such the real echo chambers and preached at choirs are not platforms where there are shared rules, but places where such rules are disdained.

Places like Twitter.

*

On this blog I will write things which a number of readers will disagree with: Brexit (where I am ultimately neutral in principle, though critical in practice), codified constitutions (where I am sceptical), electoral reform (where I am wary), and so on.

And the commenters on this blog – many of whom provide comments that are better quality and more informed/informative than my head post – will engage, often with other perspectives.

You can then form your own view.

Pre-moderation and my “irksome” rule prevents comments derailing the discussion.

(And, in practice, few comments are not published.)

As such, I do not think this blog is an “echo chamber”, or that I am “preaching to the converted” (though I sometimes wish I could convert more of you to my idiosyncratic views).

*

In practice, accusations such as “echo chamber” and “preaching to the converted” can be rhetorical devices to shut down unwanted forms of discourse.

The important thing is that if you want a platform that suits you then you should be free to use a platform that suits you.

And do not be afraid of comments such as “echo chamber” and “preaching to the converted”.

Is this an abuse of the law of contempt of court?

5th August 2022

I came across a case on BAILLI which I read with increasing concern, indeed dismay.

I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.

And I could not believe what I was reading.

I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.

The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.

The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.

Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.

But this case seems to show how contempt of court this can be abused by the injuncting party

The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.

The application seemed either spiteful or irrational – for a bad reason or for no reason.

And certainly not for any good reason.

The judge was not having any of it, and these two paragraphs give a flavour of the judgment:

Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.

Is this a case worth a close reading?

Is this an (attempted) abuse of power which should be be brought to a wider audience?

Or is this a storm in a lawyer’s tea cup?

Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?

I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.

I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.

There is a Law Gazette news report here.

And Adam Wagner has done a Twitter thread here:

Let me know what you think.

***

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.

The comments policy is here.

 

The significance of a 2014 case about stuffed toys – and why illiberal lawyer-politicians should not be underestimated

4 August 2022

Here is an amusing tax case from 2014, from eight years ago today.

You will see why I am mentioning it.

The case was about whether a toy was a stuffed toy or not.

In particular, as the tribunal put it, it was about “how two soft children’s toy animals that contained a soundbox that produced soothing sounds, intended to assist babies and children to sleep, should be classified for Customs purposes”.

If the toy was regarded as a stuffed toy its classification would have one tax consequence, and if it was not a stuffed toy it would have another consequence.

And so, eight years ago today, in Bedford Square in London, a two-person tribunal earnestly debated with two barristers about the nature of stuffed toys.

The judgment is a joy:

“The Appellant’s principal contention had been that when there was no definition of the word “stuffed”, one should look to the intended use of the product to decide whether it was stuffed. In that quest, the word “stuffed” should be taken to suggest a toy designed to be cuddled and played with by babies and children.”

Against this, the HMRC’s barrister contended:

“The products could hardly thus be said not to be stuffed, when as a pure physical matter of content they were stuffed and they plainly looked to be stuffed, and when, even on the Appellant’s test that “stuffed” meant that the toy was suitable to be cuddled, it was indeed asserted that it was a “cuddly companion and toy”.”

The tribunal considered the point carefully:

“While there is no definition of the word “stuffed” in the present context, its meaning is relatively obvious, and indeed in turning to consider the function of the product and then asserting that stuffed products can be identified because they will be soft to cuddle, the Appellant itself assumes the same obvious meaning of “stuffed” in reaching the conclusion that it must mean something along the lines that will make a toy cuddly. And what makes a toy cuddly is of course the insertion of stuffing…”

And so the tribunal concluded, with a straight face:

“this product is a cuddly toy, and that it is stuffed.”

All good fun – and it is one of those cases, like the Jaffa Cake case, which lighten up the reports of tax cases, and so add to the gaiety of the nation.

*

But why is this case of interest on 4 August 2022, eight years later?

Because the victorious HMRC barrister in that case is now the Attorney General, Suella Braverman.

And the case is significant because it shows that Braverman’s bread-and-butter at the Bar was everyday public law cases.

It is often contended that Braverman is not qualified or sufficiently experienced to be an Attorney General.

But in fact she was a perfectly competent barrister specialising in public law cases and indeed was appointed to the Attorney General’s panel to conduct cases on behalf of the government.

According to Bailii, she also acted in planning cases, both successfully and unsuccessfully.

As far as can be ascertained, the Attorney General had a good, wide-ranging public law practice, including advising on human rights law.

This blog is not a fan of the Attorney General, but it is important to be fair and accurate in what can be criticised.

It is sometimes assumed – perhaps condescendingly – that the reason why some politician-lawyers are illiberal about the law is because they do not really understand the law.

But the thing about Braverman and also the Lord Chancellor Dominic Raab is that they do have experience in and knowledge of public law.

Some may say that makes their illiberalism worse – for they “should know better”.

I think that is the wrong approach.

I think one should credit the illiberals with knowing and understanding the relevant law – it is just that they do not care for it.

And this means that those of us who are liberal in their approach to the law need to make a more compelling case for it than assuming the conservatives do not “get it”.

***

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.

The comments policy is here.

Why we should look closely at legal cases in the news – even “Wagatha Christie”

2 August 2022

There are two sorts of legal blogging that I most enjoy.

One is a close reading of a document: working out how the document was put together, and reckoning the significance of what is said – and not said.

The other is a detailed examination of a legal case in the news: answering the question of “how the Hell did this end up in court?”

Both sorts of blogposts, if done well, are very satisfying to write and seem popular to read.

Other sorts of legal blogs – from expositions of black letter law to articulations of some view point – can also be interesting.

But only with the two sorts I like doing best do I get the sheer thrill of taking something topical and, by careful analysis, producing something new for people to consider.

The one problem, however, with writing about topical cases is that you often have to take them as you find them.

The subject matter of a case may be of no interest – or it may even be about something you dislike or even hate.

But with such cases it can still be worth asking that key question: “how the Hell did this end up in court?”

And by answering this question you understand a lot more about the case in the news – and about law and legal practice generally.

*

Over at Prospect I have done a detailed analysis of how the Hell the “Wagatha Christie” case ended up in court.

I have no particular interest in the WAG phenomenon.

(Though I admit I enjoyed the defendant’s initial reveal post – and I assumed wrongly that she must have put her published reasoning together with the help of legal advice, but she did not.)

I also have no particular regard for the football players to whom the parties are married.

(Neither of them play or played for Aston Villa, Wolves or Nottingham Forest, which are the teams I follow.)

But I found the case fascinating – not least because this was a case that plainly should never have gone to court.

How the Hell did this end up in court?

It was a case that should have settled the moment the claimant realised the adverse evidence that was going to be put in at trial.

No technical win could be worth the impending PR disaster.

It was even a case that, given what the claimant knew even if she did not herself leak the information, should never have even been brought.

And this was notwithstanding that the claimant’s case was strong and she could have won the case, given what the defence had to prove and the the structure of libel law.

It was just a “Nooooooooooooooo” sort of case.

But the case was brought and not settled and it ended in a mess.

Cases that go to trial are often inherently interesting – they are exceptional.

By understanding what happens with cases that do end up in court, you also can gain a better understanding of why most such civil cases do not end up going to trial.

And this means you can have a better understanding of how the legal system works (or does not work) more widely.

As Ben Goldacre – whose science blogging was a model for my early legal blogging – once said: by understanding “bad science” you can get an understanding of good science.

Similarly by looking carefully at how cases get to trial you can get insights at how litigation works more generally.

Please do have a read of my Prospect piece – and come back and leave any sensible comment.

**

Forgive me blowing this here trumpet:

***

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.