Telling the story of Brexit

11th August 2022

As I am working on a couple of longer posts posts for this blog – and they often take longer than I originally anticipate – this is a just a short post on my long-awaited Brexit book.

The book is still coming on, slowly – and I am grateful for the patience of those who are patient.

In its current form the book is both an account of how Brexit came about and an assessment of its significance.

The book starts with the referendum, and explains how we came to have a referendum and what it meant for this issue to be determined by such a device.

I have two models for the approach I am adopting.

(I am afraid these models come from someone who was taught and studied history in the late 1980s and 1990s – and I am conscious that these models will be sneered at by some, but they are – because of my academic experience – part of my mental architecture, and I have to work with what I have got.)

The first is, of all people and things, G. R. Elton’s book Reformation Europe, which starts with the theses being nailed on that door.

Elton then explains each thing as he then gets to it in his story, thereby balancing exposition and analysis with narrative.

As Elton explained in The Practice of History:

“[Reformation Europe] avoids the customary scene-setting at the start. Instead it goes straight in the story of Luther’s rebellion, which naturally calls for some description of the man; this introduces, as a matter of course, the points of theology over which he rebelled. Once the narrative is well under way, it demands some understanding of Luther’s success in the circumstances of time and place….”

And so on.

(I am aware of Elton’s many limitations, but his approach to narrative is thought-provoking.)

The other model is that of Conrad Russell, whose Ford Lectures on the causes of the English Civil War were an attempt to explain a sequence of seven “effects” –  events and non-events – which led to the conflict:

“These, then, are our effects: the Bishops’ Wars, England’s defeat in the Bishops’ Wars, the failure to reach a settlement, the failure to dissolve or prorogue the Parliament, the choice of sides, the failure to negotiate, and the problem of the King’s diminished majesty. It is surely clear that nothing except Charles I can be likely to have been a cause of all seven of these […] The removal of any one of these seven things could have prevented the Civil War as we know it.”

What would be the comparable sequence of effects that would explain Brexit as we know it?

Would they be questions like: Why did the United Kingdom have a referendum on this question in 2016? What explains the result? What explains how May’s government interpreted the supposed mandate? What explains how the European Union prepared for the departure process?

Other questions?

Russell emphasised that you can only explain causes if you are clear as to the effects you are explaining.

Breaking the topic into a sequence of smaller questions and answers is, I think, a good way to tell the story – for noting was inevitable in what happened.

But.

Mere narrative – even balanced with exposition and analysis – is not enough.

For to understand the significance of Brexit – that is, the significance of the departure of the United Kingdom from the European Union – you also have to understand and assess what it meant for the United Kingdom to have been a member of the European Union and its predecessor communities.

And this is where an understanding of law and policy comes in.

For an understanding and assessment of what has changed (and has not changed) by Brexit in turn explains a great deal of what is going on (and not going on) now.

The question is how best to set this out.

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A great deal of the relevant materials and documents are in the public domain, supplemented by witness evidence and informed commentary.

The task is harnessing this material for it to be a book which is worthwhile to write and worthwhile to read.

It is also important to be alert to partisanship – and it should be a book that is partisan neither for Remainers nor Leavers, though I suspect this may be a difficult goal in our polarised political culture.

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The story of Brexit is a fascinating and important.

But it is difficult to work out how to tell it best….

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Birmingham

10th August 2022

The Commonwealth Games of 2022 have just ended.

I am not huge fan of athletics, but it was wonderful to see my home city of Birmingham being given the opportunity to show off.

A taste can be seen of the closing ceremony here:

There may be other cities in England that have more famous musical legacies – but Black Sabbath, the Electric Light Orchestra, Joan Armatrading, the City of Birmingham Symphony Orchestra, UB40, Duran Duran, Dexys Midnight Runners, and so on, ain’t bad.

We produced Ozzy Osbourne and Jeff Lynne, Paranoid and Mr Blue Sky.

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One thing about being a Brummie is that you learn very quickly that you and your city will get disparaged, and so you get your self-disparagement in first and quickly.

You meet people who want to say “Birmingham” in an accent which sounds Liverpudlian, or Welsh, or mildly deranged.

You hear the criticism of New Street Station – but you never let on that it is that ugly so that people are not tempted to get off the train and ruin it for the rest of us.

You learn that you can’t take things about your city too seriously for too long.

As Telly Savalas avers:

What makes that video especially wonderful is that Savalas did not visit Birmingham – indeed he may not have even seen the footage.

He did a voiceover gig from afar.

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There is not even that much of a fixed identity.

For example, because I was born before the 1973 county re-organisation, I used to say I was born in Birmingham, Warwickshire.

But pesky details meant I was wrong: I was born in Birmingham, Worcestershire – as Selly Oak was then the other side of a county line.

There were parts of Birmingham which were Staffordshire.

It didn’t matter, the industrial and residential city just sprawled out in all directions, regardless of lines on maps.

And people came to Birmingham from elsewhere in the British Isles and from abroad.

All ended up Brummies.

In terms of religion, it was varied – strong Anglicanism vs Freethinkers (for example with the Priestley riots), Cardinal Newman and the strong Irish contingent, and then religions from around the world.

All together.

And economically and commercially, there was not just one trade and business dominating – but all sorts, from the Jewellery Quarter to the Bournville chocolate factory and the Longbridge car plant.

All mixed.

Birmingham did not even formally become a city until 1889, when it was already one the largest urban areas in the then-empire.

And then without really realising it, Birmingham somehow became the second city of the United Kingdom.

This irks those from Manchester and other pretenders – which is pleasing, as it is plain how much this status would mean to them – but most Brummies are a little bewildered by it, to the extent they think about it at all.

A Birmingham football team even were once champions of Europe, which is also bewildering even for those of us who support it.

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From a law and policy perspective, coming from a big city that is not London is a useful corrective to a lot of the London-centric approach of the English government and British media.

Coming from a city that has grown and thrived on its own terms is a reminder that regions and localities have actual and potential power.

Birmingham did not become the second city because some people in London decided to generously “level up” a midlands town.

Birmingham – like many other cities – was just allowed to get on with it.

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Of course: there is a less pleasant side.

Birmingham grew on the back of slavery and colonialism – and, indeed, the city’s gunmakers and chain-makers were the main suppliers of slavers and imperialists.

One day there may perhaps be a Bristol-like reckoning of this, or perhaps not.

The city is also the home of those remarkable political creeds “liberal imperialism” and “liberal unionism” – which meant elevated rights for those fortunate enough to be on this island, and no rights if you were under this island’s power.

Now forgotten, those political ideas put Birmingham – and the house of Chamberlain in particular – at the heart of British politics for sixty years from c. 1880 to 1940.

And you can perhaps trace back British exceptionalism to the “liberal imperialism” and “liberal unionism” of Joseph Chamberlain and his supporters.

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So coming from Birmingham – like coming from any other non-London place – can give you a detached view of the law and politics, and the history, of the United Kingdom.

You may have a similar story and a similar view.

And the more it is realised that there is more to the United Kingdom than Westminster and Whitehall and the Square Mile, the better.

If the rest of the country is given its head – with independent access to resources and powers – then levelling-up may happen, and not at the behest of London.

And, who knows, another city could overtake us to become the second city.

We would have still have given the world heavy metal though.

And won the European Cup.

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Hillary Clinton’s emails vs Donald Trump’s boxes of files – and the dangers of hyper-partisanship

 

You will remember the issue of Hillary Clinton’s emails.

She used a private email server during her time as Secretary of State.

You may also be one of those who formed the impression that a later statement by the director of the FBI on the issue led to Clinton losing the presidential election to Donald Trump.

You may also recall the chants of “lock her up” by Trump supporters in response to mentions of this email issue.

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Those in executive office, it would seem, should be careful about how they store information – else they could be breaching federal law.

Framed in those general terms, this description of what Clinton did wrong can cover what appears to be what Trump may have done wrong.

For today there was a search at Trump’s Florida residence by the FBI.

And the search was not for emails, but for classified documents, wrongly taken from the Whitehouse.

Hard copy equivalents of the electronic documents of Clinton.

But instead of clapping and cheering, as they did with FBI announcements about Clinton, Trump supporters are against this development.

So here was Trump-supporting Congressman Kevin McCarthy on Clinton’s emails:

And here is the very same politician on the search at Trump’s property:

There is no intellectually honest way that these two stances can be reconciled.

The only explanation for the two stances is hyper-partisanship.

And like many hyper-partisans, he has invoked constitutional arguments of first principle when it suits his cause, but does not apply them the same way against his cause.

It is this hyper-partisanship which is worrying.

Either the FBI should be free to look at Clinton’s emails or Trump’s boxes or they should not.

But to say one is good and the other bad signifies a partisanship that picks and chooses which basic principles should be complied with.

And as this blog has said before, constitutionalism is the notion that there are certain fundamental rules and principles that should govern political behaviour regardless of personal or partisan advantage.

The FBI should be left to get on with their investigation and to follow where the evidence takes them, without fear or favour.

McCarthy is right that there is an intolerable state of weaponised politicisation.

But it is coming from Trump supporters, and it does not bode well.

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The significance of Rishi Sunak’s Brexit Delivery Unit

8th August 2022

Here is a tweet and video to treasure:

But other than adding to the gaiety of the nation – or to its collective despair – this video and the proposal of a “Brexit Delivery Unit” are significant.

They signify a great deal about Brexit, and about what has not been done or understood by those in the governing party.

The United Kingdom joined what became the European Union in 1973 and it departed the European Union in 2020.

That is over 45 years of accumulated law and policy.

Brexit was never going to be “done” quickly – it may never be done at all, if Brexit is taken to mean that all that law and policy is to be disentangled and reconsidered.

And a great deal of that accumulated law and policy was shaped by the United Kingdom because it suited the United Kingdom.

Going through each regulation or other legal instrument derived from our membership of the European Union, and assessing whether divergence is both possible and beneficial, will take an extraordinary amount of time and effort.

And during a cost-of-living and energy price crisis, with increasing inflation and during a European war, you would think that the finite resources of the British state would have greater priorities than such a review.

There was also, of course, an actual government department dedicated to managing the exit and its implications:

https://twitter.com/LLocock/status/1556635543575752707

The department was abolished because Brexit had been “done”.

One gets the sense that those in favour of Brexit did not realise the legal and policy magnitude of the task ahead, just as they did not appreciate the economic and logistics consequences of departure.

That was all mere detail, it would seem.

For Brexit was not actually done to solve any law or policy problem or to address any economic or logistics concern.

To the extent there was a primary reason for Brexit it was to regain sovereignty – to “take back control”.

Well.

This is sovereignty, for what it is worth – there are over 45 years of accumulated law and policy from our membership of the European Union.

Two years after we have departed the European Union, the leading politicians in our governing party still do not know what to do with all that law and policy.

And so we have a leadership contender in 2022 announcing there will be a “delivery unit” for Brexit.

Which is an implicit admission that Brexit has not yet been done.

Indeed, Brexit has hardly begun.

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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.

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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.

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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”.

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Lawyers advise, clients decide – the crucial distinction

3rd August 2022

Perhaps the most boring but memorable title of a political biography was that of Norman Fowler:

That title came in turn from a comment of Margaret Thatcher when Prime Minister, in a dispute regarding the errant Downing Street adviser of the day: “advisers advise but ministers decide.”

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One feature of legal commentary is having to explain the distinction between a client and a legal adviser again, and again.

This is especially so when politicians and the media attack lawyers.

But.

Some lawyers do not help themselves.

Some lawyers so closely identify themselves with their client so that that any client/adviser distinction is indistinguishable to a lay person.

But the distinction is always there – or should be.

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This is true when looking at the dynamics of high-profile litigation like the “Wagatha Christie” case.

And it is true of government lawyers who, it is reported, are being asked to re-frame their legal advice (which I may blog about soon, as a former government lawyer).

Of course, there are circumstances where the lawyer is their own client – notwithstanding the adage about foolishness.

But generally one way of understanding what is really going on in any legal story in the news is to work out the client/adviser distinction.

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Some clients will be so reliant on their lawyers that it will seem that in reality – as opposed to theory – it is the lawyer actually making the decisions and driving things forward (or backward, or indeed off the track completely).

But again, even if this is the situation, the distinction is still there, and the lawyer remains the servant of their client.

That a client is (over-)confident that their lawyer is acting in their best interests does not remove the distinction.

And you may not be privy to the confidential and privileged advice the lawyer has given to their client.

The overwhelming obligation for any legal adviser is to get their legal advice right.

Getting advice right, so that it can be relied upon by clients, will often involve disclaimers and provisos.

These disclaimers and provisos may be seen as covering backsides – and sometimes they may well be.

But disclaimers and provisos are also signs of accurate and considered advice: [A] may lead to [B], but if [C] happens then [A] will not lead to [B].

Blunt, simple advice has its place – and it can show off a lawyer’s confidence and experience: “you will win at court” and “there can be no defence”.

But it can also show up over-confidence, and a lack of experience.

The important – crucial – thing with legal advice, blunt or elaborate, is for the advice to be correct and thereby reliable.

And as long as that is in place, the lawyer has done their primary job.

It is then for the client to decide.

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Sometimes ministers will not like this advice – and may wish to blame the lawyer rather than the law.

Sometimes claimants will not like their advice – and seek to go to court despite advice to settle a case.

And sometimes lawyers will get their advice wrong – or, more commonly, have been too cautious in their assessments of risk.

But if, say, a lawyer says there is 60:40 chance of winning a civil claim, they have not got their advice wrong if a client then loses.

You are a just one of the 40% and not the 60%.

As long as the lawyer has reasoning for that as their best assessment, they have done their job.

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There are some lawyers who do want to be decision-makers – either in effect or in reality.

But most lawyers are lawyers for a reason and that is because they want to be advisers and not decision-makers.

There are also decision-makers who do not want to make decisions – who want to hide behind advisers or blame lawyers.

But they are still decision-makers.

Lawyers advise.

How about that for a book title?

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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.

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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.

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Forgive me blowing this here trumpet:

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How defamation is like trespass

1st August 2022

Writing about the Wagatha Christie case reminded me of this thought I once had.

Defamation is an odd tort, and to my mind it is a lot like trespass to land, which is another odd tort.

Odd, as in distinctive.

When a person goes on the land of another, and the land owner wants to sue, the land owner has to prove they own the land and that there is/was an intrusion.

It is then for the defendant to prove that they had a right to enter the land, such as a licence.

Similarly when a person defames the reputation of another, and the defamed person wants to sue, the defamed person has to prove that they have a reputation in the jurisdiction and that the defaming statement related to them.

It is then for the defendant to prove that what they say is true or a fair opinion or some other defence.

Trespasser/defamer; land/reputation; and the onus being on the defendant to justify the intrusion/statement.

It is almost as if the law conceives of a reputation almost as a property right, and the presumption is against any rightful intrusion/defamation.

The cry of “get orf my land” transforms into “get orf my reputation”.

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One criticism often made of libel law is that it is on the defendant to prove a defence.

The claimant does have to prove certain things: that they have a reputation in the jurisdiction; that there was defamatory statement published to the third party; and that the defamatory statement caused (or is likely to cause) serious harm.

So it is not true that a libel claimant does not have to prove anything.

But once these things are shown, it swings to the defendant to prove their defence, and not for the claimant to disprove it.

That this is a practical problem for defendants is obvious.

But the question is whether it could be done any other way?

Just as it would not be for the landowner to prove an intruder has not got a licence, should it be for the defamed person to disprove a defamatory statement of fact?

Surely the person defaming another should have their factual basis in place before defaming another?

Until and unless this problem of the reverse burden of proof is addressed, then many attempts at libel reform will not succeed

This is because many of the problems of libel in practice flow from this key shift in who has to prove what.

 

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A guide to today’s “Wagatha Christie” judgment – a case that should not have gone to trial

29th July 2022

Later today, at noon in the United Kingdom, the so-called “Wagatha Christie” libel judgment will be handed down by the High Court in London.

As I happen to practise in media law, I thought this may be a useful moment to explain some things about defamation law in general as well about this (for many) entertaining case in particular.

For there is one glaringly obvious feature of this case, whatever the result and regardless of how it has added to the gaiety of the nation.

This is a case that should never have gone to trial.

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On 9 October 2019, the United Kingdom was still a member of the European Union, Boris Johnson had only recently become Prime Minister, nobody had heard of COVID-19, and Coleen Rooney tweeted the following:

The tweet is still there, and she also published this on Instagram and Facebook.

This tweet followed another one from earlier that year:

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Now, the United Kingdom has left the European Union, Johnson is about to depart as Prime Minister, pandemic lockdowns have come and gone, and we are today finally to find out what, if any, legal liability Rooney has for publishing this statement.

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Rebekah Vardy was not not happy with the statement – which was seen by millions.

The watching public were highly amused, and the impressive detective work set out in the statement led to Rooney being dubbed “Wagatha Christie”.

It appears that Rooney sought to settle the case at this early stage.

According to a news report during the case in The Sun that referred to a witness statement of Rooney:

That May 2020 date may be significant, as it seems to be an offer to settle before the claim was even issued.

If so, that pre-action attempt to settle was unsuccessful.

For on 12 June 2020 Vardy issued a claim in libel against Rooney.

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Libel is a complex and, for some, counter-intuitive area of law.

In a claim for libel, the claimant has to (in general) show two things.

The first is that there was a publication in writing (or another permanent form) to a third party – and here there is no doubt.

And the second is that the publication is defamatory of the claimant, that the average person reading the statement would think badly of the claimant – and here, again, there was no doubt.

Indeed, there was no dispute between the parties that the statement – or what lawyers call “the words complained of” – was defamatory.

And once the claimant has shown these two things then (again in general) the onus switches to the defendant to show that the statement is true, or honest opinion, in the public interest, or was said on a privileged occasion, such as in court or in parliament.

In this way, it is for the defendant to do the expensive spade work of showing that they can lawfully make the allegation, and not for the claimant to disprove the allegation.

So here the burden was on Rooney to show her detective work was sound and her conclusion correct, and not Vardy to show it was unsound.

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But.

What is the meaning of the words complained of?

The meaning is important as it would, in turn, frame what Rooney would have to show to defend this claim.

And so this would be the first matter for a judge to decide – and that was to be in November 2020.

Here it is worth noting that according to the news report above, Rooney sought a second time to settle this case, in October 2020 before that hearing, and she was again unsuccessful.

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You may think that the meaning of the words complained of was obvious.

Oh no.

This was a matter of dispute.

Rooney (and her lawyers) contended that the meaning was that:

“there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper.”

Here Rooney (and her lawyers) emphasised the references to it being Vardy’s account, rather than Vardy directly.

Vardy (and her lawyers) in turn contended that the words complained of meant:

“that the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.”

Vardy’s contended meaning would be harder for Rooney to prove.

At a preliminary hearing in November 2020, the judge largely agreed with Vardy and held that the meaning of the words complained of was:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

This was a set-back for Rooney, and it was seen at the time as a victory for Vardy.

The judge dismissed the argument that the average reader of the words complained of would realise that it would not just be Vardy personally who had access to Vardy’s account.

(For what it is worth, I think this was an error by the judge.)

*

This decision could have been the end of the matter.

For as the judge explained:

“It is almost always helpful for the meaning of the alleged libel to be identified at an early stage. Sometimes this will lead to the end of the case, because the words are not defamatory, or because they bear a meaning which the defendant cannot defend, or for some other reason. In any event, a decision on meaning will always have a bearing on at least one of the other issues in the case.”

And the judge congratulated himself and the court:

“As this case illustrates, the process of deciding meaning is a quick and efficient one. I have heard this trial and given judgment only two months after the order for such a trial was made.”

However, it seems that the effect this decision on meaning was to make this case more complicated and time-consuming.

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The parties then amended their pleaded cases and sought to settle the case.

According to the news report above, Rooney’s third attempt to settle the case was in January 2021, after the “meaning” decision was handed down

But for some reason the case was not settled.

Sometimes cases do not settle because one party is adamant that they want their day in court, and so will refuse any settlement offer.

Sometimes the settlement offers are too low.

And sometimes, parties can get trapped by how they are funded so that they have to continue with the case as that is the least bad option.

Who knows.

But for some reason this case continued after three reported attempts to settle, and the case was now going to become far more expensive and complicated.

*

Rooney’s legal team now had a challenge on their hands.

A further preliminary hearing, before a different judge (and who is the trial judge who will be handing down judgment), took place in June 2021.

Vardy (and her lawyers) sought to strike out Rooney’s amended case, especially references to Vardy’s close relationship with journalists at The Sun.

Rooney (and her lawyers) were now building an “inferential” case – that it could be inferred from other evidence that Vardy was providing private information to journalists and that would go to the sting of the allegation.

As the judge said: “an exceptionally close relationship between the claimant and the newspaper or journalists to whom the Posts are alleged to have been provided is one of the building blocks on which the defendant’s inferential case is built”. 

In other words: the determination on meaning had resulted in Rooney (and her lawyers) widening their case, so that it could be inferred from similar facts that Vardy leaked Rooney’s Instagram posts.

Vardy’s strike out application was not wholly successful.

For example, the judge said of one part of the application: “While these paragraphs do not go to the core issues, the allegation that the claimant had, or was the primary source for, a gossip column about professional footballers and their partners in The Sun is logically probative similar fact evidence.”

This court decision was, to invoke an analogy, where the match started turning against Vardy.

*

And then there was the fateful preliminary hearing in February 2022.

This was the hearing where the parties made applications and counter application, and sought to get certain evidence included and excluded.

The judgment of this preliminary – not final – hearing is 56 pages, with 203 paragraphs.

This judgment is where we find that the evidence of Vardy’s agent “is that in August 2021 she lost the mobile phone that she had used during the period January 2019 to August 2021. The respondent states that this occurred while on a boat trip during a holiday, when the boat hit a wave, and she accidentally dropped her phone.”

We also become aware of the following message of Vardy:

“Would love to leak those stories x”

You can understand why Vardy would want such a message excluded from evidence, but her application to exclude it failed.

And so on.

What had happened is that Rooney (and her lawyers) had followed up their widening of their case with successfully having evidence put in about Vardy and her agent leaking stories generally.

At this stage, even if Vardy succeeded in the libel claim against Rooney, it was becoming obvious that any trial would be a PR disaster for her.

Any settlement at this stage must have been preferable to Vardy.

But still the case did not settle.

Instead it went for full trial in May this year.

And the proceedings were, as I have averred, a tonic for the gaiety of the nation:

A good time was had by (almost) all.

*

Vardy can still win the case today.

Any inferential case is difficult – and proving Vardy herself leaked or directed the leaks of Rooney’s posts may be difficult.

If Rooney does not prove the following then she loses:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

But.

Winning a legal case is not the same as winning in the court of public opinion.

And it may be that the costs consequences of Vardy “winning” may be horrendous if Vardy turned down a so-called “Part 36 Offer” (or similar) that offered to settle at a higher amount.

That a case like this will have four published judgments does not reflect well on our legal system.

That the legal costs will be very high – and to many obscenely astronomical – also does not reflect well on our legal system.

Libel litigation, however, can be highly technical and resource-consuming.

Instead of only the “meaning” being dealt with briskly in November 2020, there is really no good reason why the whole of the case could not have been done briskly, instead of the elaborate applications and counter-applications, strike outs and disclosures, amendments and oppositions.

And if it could not have heard briskly, it is a case that should have settled at the first available opportunity.

Libel litigation can grow like topsy, and often does.

And the point of libel litigation?

Well, supposedly the aim of libel litigation is “vindication”.

But after the PR horrors of the trial, it is difficult to see how Vardy comes out of this case well, even if she wins later today.

In seeking to vindicate her reputation, the practical effect of Vardy’s libel claim has been to undermine it.

This is a case that should never have gone to trial.

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