Waiting for yet another report

20th April 2023

This evening those who take an interest in Westminster politics are waiting for yet another report.

The report – this time into allegations against Dominic Raab, which he denies – has been delivered.

It is reported Raab has read it and sees no reason to resign, and so it is now up to the Prime Minister whether Raab should be sacked, and the Prime Minister has not decided.

It seems not vey long ago we were all waiting for the Sue Gray report, and there have been various other reports and inquiries, some of which have been quietly abandoned.

The purpose of this short post is not to preempt the report: I have not seen it and, as of today, almost certainly neither have you.

Instead it is to mark that, again, reports and inquiries are taking the place of traditional politics.

Perhaps this practice is a good thing: that information is compiled before a decision is made.

But perhaps it also a bad thing: for it enables ministers and others to avoid and even evade responsibility and accountability with an investigation takes place.

It almost a contracting-out of democratic and representative functions, at least in the short- to medium-term.

And the practice is now as much a part of our polity as the more formal elements that would be detailed in a constitutional text book.

Somebody should maybe commission a report into the practice, so that we too can put off doing anything about it.

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A look at why Fox and Dominion settled

19th April 2023

Almost all civil litigation ends before a trial takes place.

Civil litigation – where one party sues another person in respect of a legal wrong – is distinct from criminal litigation and much public law litigation where it is expected that some court hearing takes place.

In civil litigation, weak cases tend to be withdrawn at an early stage, while stronger cases tend to get settled.

Indeed, civil litigation is often a structured form of deal-making, providing a hard procedural framework for negotiations and compromise.

This is because of two things.

First, it is usually plain at an early stage if the claimant actually has any sound claim at law, or a defendant a sound defence.

Second, before any trial, it is also then usually plain how strong the evidence is – witness evidence, expert evidence, documentary evidence, exhibits – for both parties.

Of course, dramatic things can happen at a trial – some stunning exercise in cross-examination, or some unfortunate admission – that can make a difference to a case.

But usually, any competent litigator (or, in the United States, trial lawyer) will be able to advise weeks before any trial on the likelihood of success or failure.

Pre-trial stage is where the most significant litigation work takes place – not in the theatrical, rhetorical flourishes of counsel in the courtroom.

But in the methodical grunt-work of getting a case prepared for trial.

For the litigation paradox is this: you are more likely to get a satisfactory result before trial by preparing to go for trial.

And you are less likely to get a satisfactory result before trial if it is obvious you are not willing or able to go for trial.

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There are exceptions to the general rule that almost all civil litigation ends before a trial takes place.

Sometimes there is an area of law that is genuinely unclear, and so neither party can be sure which way a court will go, and so a judgment is needed.

Sometimes there is a need for a property or other legal right to be judicially and publicly determined.

Sometimes you have a party who simply wants their day in court, regardless of legal advice to settle.

And sometimes, a party may have got itself into such an awful legal costs tangle that it has to, in effect, bet on the outcome of a trial as the least bad outcome.

But these (and some other) exceptions aside: almost all civil litigation ends before a trial takes place.

The only questions are when and how the litigation ends.

And this may surprise some outsiders, for whom litigation is about what happens in a courtroom.

But like battles and wars which are won and lost before any confrontation takes place, so is most civil litigation.

This is, in a way, the art of law.

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None of the above will be news to long-term readers of this blog.

But the latest application of the truth that almost all civil litigation ends before a trial takes place is the settlement in the United States of the Dominion lawsuit against Fox.

The settlement was in the days before a trial was scheduled to take place.

On the face of it, this is not a case that should have got as far as it did.

In particular, it would appear that the evidence was strongly on the side of Dominion – especially the disclosures about those at Fox knowingly broadcasting untruths.

But.

The lateness of the settlement indicates two things.

First, either party – or both parties – were playing hard.

And this would not be a surprise given the amounts – and reputations – at stake.

Dominion, in particular, conveyed an impression that it wanted public vindication – and so would be committed to go to court if there was not a public apology.

As it happens, there seems not to have been a public apology – but Dominion’s demand for one no doubt led to Fox having to settle for a higher amount than it would have done otherwise.

Both sides knew that a public admission of wrongdoing was Fox’s weak point – in a way that, in the United Kingdom, News International has been careful not to admit whether certain newspapers were involved in phone hacking.

On the other hand, Dominion had its own weak point.

And this was possibly the second reason for the lateness of the settlement.

To win at court, Dominion had to go beyond showing that Fox were aware that it was broadcasting untruths.

Dominion had to show “malice” – which in the United States, as in England, is a high and difficult threshold to meet.

Malice is a state of mind, like dishonesty in a fraud case.

And short of an admission, malice has to be somehow shown by inference from the available evidence.

That is often not easy regardless of an abundance of evidence of wrongdoing – and thereby there is an element of uncertainty for both sides: will they, won’t they, etc.

And both sides knew about this uncertainty too.

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Fox and Dominion were in a litigation struggle.

Fox wanted to avoid any public acknowledgment of wrongdoing, but the courtroom clock was ticking louder and louder, and in turn Dominion realised their case was not an easy win because of the requirement to show malice.

But Dominion seemed to have convinced Fox that it was committed to getting public vindication.

And so Fox settled, for an extraordinarily high amount.

As such it has deprived some from the spectacle of a courtroom drama and possible public humiliation for individuals connected with Fox.

But for connoisseurs of civil litigation – who know trials are unlikely – the pre-trial litigation struggle was spectacle enough.

And it was well-played by Dominion.

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The next eighteen months

18th April 2023

The next general election, we are told, is likely to be within the next eighteen months.

The last general election, back in December 2019, returned the Conservatives with a whopping, substantial majority.

That majority, in turn, can be seen as having been the electoral dividend of Brexit – of getting Brexit “done” – and also of seeing off the Faragist Ukip and then Brexit parties, as well as routing Corbyn’s Labour Party.

It was, in political turns, a highly successful partisan political manoeuvre.

Boris Johnson and his party in December 2019 had the very greatest prize the constitution of the United Kingdom could bestow: a large single-party majority in the House of Commons.

Something the Conservative party had rarely had since the governments of Margaret Thatcher.

And what has the governing party done with this huge majority since 2019?

The government has ****ed it away.

The Conservatives have, so far, nothing substantial to show for this big majority.

Zilch.

And time is now running out.

It may well be that the Conservatives will not have another opportunity with such a large majority – and some Conservatives perhaps know it.

There is perhaps not enough time for the governing party to force through any controversial legislation –  especially if there is opposition in the House of Lords.

But Conservative ministers will know that this is probably their last chance: to validate the the 2019 general election result, and perhaps to validate the Brexit that made that election result possible.

As the clock runs down, we can expect louder and more extreme positions to be announced – on “culture wars” and other things – notwithstanding there is almost no time to get legislation through.

There will be attempts to use (and misuse) ministerial powers and delegated legislation.

The government will be in a hurry.

For not only is the next general election at stake, but perhaps the validity of the whole enterprise of Brexit.

The next eighteen months are going to be frantic and noisy.

The more time runs out, the more frantic and noisy the government party will become.

And, if the Conservatives do lose the next general election, that frantic noise may come to be seen in retrospect as a death rattle.

 

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After Twitter.

17th April 2023

Social media, now that it has been invented, cannot be un-invented.

Anyone with the resources and inclination, and with access to the internet, can create a site where others can post things for others to see.

The technology is not, shall we say, rocket science.

Of course, there may come a time when few, if any, people will have the inclination to put together a social media platform.

There may also be a time when few, if any, people would want to devote scarce resources to providing such a platform.

And people may simply get bored.

Just because a communications technology exists, it does not mean that people will keep on using it.

And from pamphleteering to CB radio, and from carrier pigeons to telegrams, there are many examples of communications media that fell out of fairly widespread use.

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A barrister friend recently asked me what would be the next big platform after Twitter, as if I would somehow be in the know.

I said that it was unlikely there would be another single platform that would serve so many people in so many ways.

Already social media is beginning to fragment: LinkedIn has improved and so now not too bad for work-related (and thereby law-related) discussions; Mastodon is a haven for nerds and geeks and for those of us who know the difference; Facebook is the ghost of social media past, looking down at the graves of Friends Reunited and My Space; Instagram is for those who are impossibly beautiful or have impossibly beautiful pets; and TikTok can be as witty and informative as your preferences and the algorithms and the censors and the templates allow.

Why would people move (back) to a one size fits no-one single platform?

Especially just for typing in character-limited text boxes.

Twitter will (probably) not die, but it will never be the popular and splendid hive it once was.

And there will be those (of us) who will never quite abandon the platform.

But I cannot see why anyone would use it now, from scratch, given the other available platforms.

As the novelty of social media wears away, and it becomes just another form of communication, it will becomes as dated (or as timeless) as any other form of broadcast and publication.

It will no longer be special.

One interesting question, perhaps, is whether social media lasted long enough to fatally undermine more traditional broadcasters and publishers.

People will not be buying newspapers again in large numbers, and nor will they just want to read or watch what others schedule for them to read or watch.

There has been a fundamental shift in the means of broadcasting and publication, just as a Marxist would talk of a shift in the means of production and distribution.

And that shift also cannot be un-invented.

So something new is ahead, but we do not know what it is.

But whatever it is, it will probably not turn out according to expectations.

And so, at least in that one respect, it will be just like rocket science.

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Apologies for the gap over the Easter holidays: I took some extra time to rest and recuperate, but now I am back to normal.

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Easter

Maundy Thursday 2023

The story of the trial of Jesus of Nazareth has always fascinated me.

I happen to be a non-militant atheist but that hardly matters, for the gospels’ narrative(s) of the arrest, trial and punishment of Jesus of Nazareth is(/are) set out in largely secular terms.

Nothing – or almost nothing – depends on any miracle or divine intervention.

(This contrasts with the narrative(s) before Palm Sunday and after the crucifixion.)

It is essentially a human story – about what humans did to to someone who they saw as human.

Of course, it is difficult to make sense of some of the narrative(s) – not least about how someone accused of those crimes ended up being executed by the imperial power by means of crucifixion.

One day, perhaps, I will set out more thoughts about this trial process – and in a way which is satisfactory (I hope) to those (of you) who have faith as well as to those (of us) who do not.

But in the meantime, I mention this to show that even where there are fundamental differences there can be common ground.

And it is always good to find it if you can.

Happy Easter, or Passover, or holidays, to all my followers – and I will return to the blog on Tuesday.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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Cute baby dragons and the law of copyright

3rd April 2023

There has been another amusing (at least to outsiders) copyright case.

This one is about cute baby dragons.

You do not often get – usually earnest – case reports with illustrations like this:

And it is not often that a judge gets to start off a judgment with a couple of paragraphs like these:

This is all splendid stuff – and this judgment adds to the gaiety of the world of intellectual property law, if not to the gaiety of the nation.

This judgment is well worth reading in its own right – and you can can read it here – and the purpose of my post is not to summarise the case, but to offer some commentary from the perspective of someone fascinated with both the practical law of copyright and the lore of fantastical creatures.

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On the face of it, the case was weak – and two key weaknesses stand out.

First, there was no direct evidence whatsoever of copying.

Copyright is usually about copying – the clue is in the word copy-right: it is (or should be) the law which regulates rights of copying the works of others.

In this case, any copying was to be inferred – for example by whether the defendants had access to the original work.

The judge makes short-shrift of this:

“[…] the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other High Court Approved Judgment […] That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.

The claimant was not even able to show that the work had been accessed:

“…the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.”

The second – related – weakness is that dragons are a fairly generic subject.

One claimed similarity was that both the dragons breathed fire.

Well.

That is what dragons tend to do.

Had the two works, say, had fire-breathing baby wombats…

…then that would have been a remarkable coincidence which may need explanation.

But it is perfectly possible for two creative minds to concurrently conceive of a cute baby dragon with fire-breathing difficulties.

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What does require explanation, however, is how a case as weak as this ever got to a hearing, let alone a judgment.

In civil litigation, few threatened claims ever get litigated, and few of those claims that are litigated ever get to a hearing.

This is because most civil claims are either not continued with when their weaknesses are pointed out, and those which do continue tend to get either thrown out at an early stage or settled.

Those cases – especially in the expensive High Court in London –  that end with a public judgment are rare.

And so when we get a judgment like this, one question to ask is: how on (Middle-)Earth did this case get to trial?

I am not privy to any legal materials other than the public judgment, but I think one clue may be in the successful counterclaim.

The defendants sought two remedies against the claimant.

The first was a (positive) declaration of non-infringement – which would go further than merely defeating the claim in public:

“There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration […]. The Claimant has not suggested any special reasons why it should not be granted, and as I have made clear at the start of this judgment, I consider that it would suit the useful purpose of making clear to the public and the industries in which the Defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this Court, providing some justice to the Defendants without any appreciable prejudice to the Claimant.”

The second was for what is called a publicity order:

“…there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty […]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. [Claimant’s counsel] submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance.”

If this was a claim that could have been knocked-out by the defendants at a preliminary stage, or settled as a nuisance claim, but the defendants insisted instead on going to trial, then obtaining these two very public remedies may have been an understandable case strategy.

The claimant’s use of publicity was very much a two-edged dragon-slayer.

And the claimant’s solicitors were also robust in their use of publicity:

The solicitors’ tweet linked to this spirited (ahem) puff piece:

 

In the end, the claimant suffered adverse comment in the judgment:

“[the claimant] was a little cagey, I felt, about a series of press releases in which she made allegations of copyright infringement against John Lewis, which she drafted and released to the media in November 2019, December 2020 and November 2021. She first said that she released them as she considered that it was in the public interest to do so, and then said that she gained confidence from public support. It was put to her that the press releases were made in order to promote the sale of her books and the financing of a proposed musical based on FFD. At first she denied it, but then accepted that they were, in part, for self-publicity. She denied deliberately releasing them to coincide with the launch of the John Lewis adverts in each year, and sought to say, in effect, that was mere coincidence, and she had chosen the timing as certain particular stages of these proceedings had been reached.”

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Presumably the claimant was advised that bringing any legal claim means that she would have to be prepared to go all the way to trial.

For although most civil claims settle, the paradox is that to obtain a worthwhile settlement you have have to be prepared to go to court if your case does not settle.

And the claimant was presumably also advised that any adverse public judgment would more than offset any gains from publicity along the way.

The claim looks just – just – about arguable – but without any evidence of access, let alone copying, and with a subject being something as generic as dragons – it was never a claim that had any strength.

And given the implicit attack on the integrity of the creatives working for John Lewis, there was always a serious risk that the defendants would just let it go to court and apply for the two remedies that they obtained.

It was a daft case to bring.

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The judgment, however, is a useful document.

For it not only provides a fable of what happens to a weak case that ventures into the dragon’s cave of the High Court, it also provides an informative and detailed account of a creative process.

As such it is a judgment that should be read by anyone – lawyers and non-lawyers – who is interested in the media.

And, indeed, the High Court has, helpfully, self-published its own illustrated version.

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The Indictment of Donald Trump and the Art of the Process

31st March 2023

Another “-ment’.

Following his two impeach-ments, former President Donald Trump now has an indict-ment.

(There is a pleasing parallel to this, as impeachment was the quasi-judicial process which our ancestors provided for dealing with errant politicians instead of having trials on an indictment.)

But just as a cover is not the book, an indictment is not a conviction.

It is instead the start of another process – and Trump has spent a good part of his life gaming and otherwise manipulating processes, both formal and informal.

This is the essence of the book ghost-written in his name, The Art of the Deal.

In that book, the title’s artfulness is about how negotiation processes can be exploited, how leverages can be gained, how opportunities and advantages are created and taken.

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It is almost as if all his career Trump has merely been preparing for dealing with an indictment in the state of New York.

But.

Some sports are more dangerous than others, and some sports are very dangerous indeed.

And so are some processes, and if Trump puts a foot wrong in his engagement with this process then he faces a criminal record and incarceration.

Of course: Trump may, in turn, game and exploit that eventuality, and appeal to his constituency as a victim and so will emerge somehow as a winner from all this.

The criminal process will take place within a wider political-social-media game which Trump will seek to play.

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I am not an American lawyer, and the actual charges for Trump are not yet clear, but it seems that they will be in respect of false accounting.

If so, the offence will not be the payment of any hush money directly, but how that payment was accounted for in the books.

And if this offence requires proof of intent, as well as the facts of the misleading or incorrect accounts, then it may not be straightforward to prove.

Absent a confession or a blatantly false statement, it is often difficult to prove fraud in respect of record-keeping.

Trump will know this, and so will his lawyers – and so will the prosecutors.

For just as Trump will be careful not to put a foot wrong, so will the prosecutors.

And as this is a criminal matter, due process and fundamental rights are on the side of Trump.

(If only all criminal defendants could be as lawyered-up and protected.)

So, yes, the indictment is novel and significant – but so were the two impeachments.

The result of this process is therefore not a foregone conclusion – for either Trump or the prosecutors.

And so both sides now will face their hardest tests.

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