To some, court dress is important.

Get­ting up and talk­ing in front of people is one of these activ­it­ies that does not often come nat­ur­ally. I have been doing in dif­fer­ent ways from around the age of 13 — the thick end of thirty years, now. I have done it in a wide range of forms — on stage in plays and pub­lic speak­ing com­pet­i­tions at school and uni­ver­sity. Present­a­tions to cli­ents and to audi­ences of peers at work–related con­fer­ences and events. I have pitched for work, I have spoken at fam­ily cel­eb­ra­tions. I have toasted friends and col­leagues, I have been the anonym­ous voice telling audi­ences what to do on leav­ing the theatre. You think I’d be used to it by now.

Not really. It’s true that skills become more finely–honed by prac­tice. It’s easi­er for me to flow whilst speak­ing now — the words come easi­er, take a shape and a struc­ture, hit the points I wish to make and leave the audi­ence (I hope!) con­tent with what I have expressed and the way in which I have expressed it.

But I’m not a nat­ur­al pub­lic speak­er. The thought of stand­ing up and say­ing things to oth­er people used to scare the liv­ing day­lights out of me. Actu­ally doing it was not much bet­ter — and the win­dow just before start­ing was par­tic­u­larly hor­rible. It took an effort of will for me to stand out there and speak. Some people can do this without appar­ent effort. Most people can­not.

But one of the things that made it easi­er was the pre­par­a­tion. On the stage, I’m in cos­tume and makeup, per­form­ing the rôle. On a stage at a tech­nic­al con­fer­ence, I (now) have my own little rituals of pre­par­a­tion[1]. Even toast­ing my Dad’s birth­day, I still draw myself togeth­er, neaten the shirt, smooth the tie, pre­pare to be watched as much as listened to.

I read today that in the Supreme Court, that (if all advoc­ates agree) the wear­ing of form­al court dress — wig and gown — can be dis­pensed with. I fer­vently hope that this prac­tice is seen to be an excep­tion, and does not become exten­ded to the lower courts. There are sev­er­al reas­ons for me think­ing this.

Firstly, the fact that the justices of the Supreme Court do not wear robes or wigs is a his­tor­ic­al acci­dent. The beha­viour was impor­ted to the Supreme Court from its pre­de­cessor body, the Judi­cial Com­mit­tee of the House of Lords, which main­tained the fic­tion that it was not actu­ally a court and there­fore its mem­bers dressed in day dress, not court robes.

Secondly, there is no sci­en­tific­ally reli­able evid­ence on wheth­er any­one thinks how advoc­ates or judges dress (with one excep­tion) mat­ters. The excep­tion is the Fam­ily Court, where the require­ment to put vul­ner­able or young wit­nesses in as famil­i­ar an envir­on­ment as a court can be made to be, should (rightly, I believe) be para­mount. Apart from that though, there is no ser­i­ous stat­ist­ic­ally rig­or­ous research done on the ques­tion. And simplist­ic ques­tion­ing will get the simplist­ic answer. But the level of answer is only lim­ited by the ques­tion­er — I could frame a ques­tion that would get crim­in­al cases at the Crown Court heard by someone wear­ing a black track­ie, with lilac and red pip­ing, no prob­lem!

So now that change for his­tor­ic­al reas­ons and for per­cep­tion reas­ons are elim­in­ated, I want to set out my stand. As a very juni­or poten­tial future advoc­ate, I like the wig and robe. Even though I have nev­er worn one.

I believe it allows people to step bey­ond them­selves, and assume the rôle.

We are asked to take whatever case we are giv­en, wheth­er we believe in it or not. We are asked to pro­sec­ute the poten­tially inno­cent and decent the poten­tially guilty, without fear or favour. The cab rank rule applies — we have no say in the cases that are giv­en to us. And those are good and neces­sary things for the admin­is­tra­tion of justice. One of the coun­ter­bal­ances to this in my view, how­ever, is that it is import­ant, espe­cially for those new to advocacy, is to phys­ic­ally have the act of being the advoc­ate, and the act of becom­ing the indi­vidu­al again. The dis­tinc­tion between indi­vidu­al and job per­formed. And, for a lot of people (and I hope to be one of them) this is sig­ni­fied by the put­ting on of the wig and gown.

It’s the assump­tion of the rôle, the pre­par­at­ory step that takes you bey­ond your­self as an indi­vidu­al. The don­ning of the wig and gown is the phys­ic­al act that turns the per­son into the rôle. Game on, as it were.

At the levels of the Supreme Court, at which only the most com­pet­ent, the most in com­mand, the most skilled are ever likely to prac­tise — I can see that there is not neces­sar­ily any need for the advoc­ates and bar­ris­ters there to be in court dress. How­ever, in the lower courts, there are many people who take some com­fort in the wig and gown. I know I will. It may seem to be a trivi­al thing, an ana­chron­ism in this day and age. But to those who wear it and those who aspire to wear it, it can rep­res­ent some­thing that is the rep­res­ent­a­tion of some­thing more import­ant than them­selves as a per­son.

I real­ise this is an entirely emo­tion­al argu­ment, and one that can be eas­ily countered. Is it there­fore a just a cypher that I look up to? Maybe I need to find anoth­er less phys­ic­al man­tra that allows me to go “game on”. But giv­en that there is no stat­ist­ic­ally rig­or­ous evid­ence that any­one finds the wig and gown to be an issue (let alone com­par­at­ively how import­ant an issue), and giv­en that I like its abil­ity to step me out of “me” and into what I need to do — let’s ignore this for a bit. I’ll keep the wig and gown I hope to wear, if that’s all right. I’ll ditch them in an instant if if any­one can prove that people think that mat­ters.

Take your change and keys out your pock­et. You won’t nervously play with them in your pock­et. For the love of god, think how it looks…”

Royal and Sun Alliance Insurance — where does this ultimately lead?

My gut instinct regard­ing my last post on Roy­al and Sun Alli­ance Insurance’s busi­ness struc­ture increas­ing the costs of acci­dent repair was that it was unlikely to be the end of the mat­ter. Per­mis­sion had been gran­ted to appeal; I fully expec­ted to see the mat­ter be resolved there. But that would only determ­ine the law as it applied to the fac­tu­al mat­rix of the case in ques­tion. That approach would be unlikely to help oth­er cases much — it would be open to argue that the fac­tu­al mat­rix was suf­fi­ciently dif­fer­ent that the appeal judg­ment did not apply. This clearly would not address the core ques­tion.

Provid­ent Insur­ance has decided though to take a dif­fer­ent approach: to seek determ­in­a­tion from the Com­mer­cial Court — a spe­cial­ist branch of the Queen’s Bench Divi­sion of the High Court — as to wheth­er RSAI’s com­mer­cial mod­el is leg­ally cor­rect. In the case I last wrote about, it was held (at County Court level) that it was not, but clearly there has been a dif­fer­ence of opin­ion between County Courts. RSAI has agreed that it’s desir­able that its busi­ness prac­tice in ques­tion be tested for leg­al­ity.

So in Coles & Ors v Heth­er­ton & Ors [2011] EWCH 2405 (Comm) Provid­ent and RSAI have both brought claims between them­selves in the High Court itself (nor­mally they are pre­cluded from doing so because of the likely size of award), and trans­ferred in cases from the County Courts. The next step will be the selec­tion of lead cases in this mat­ter.

This is all at a very early stage, but it has poten­tially far–reaching effects. The lead cases will determ­ine the shape of the case as it will be heard, but there are more situ­ations than just vehicle repair paid by an insurer where a corporation’s intern­al group struc­ture can lead to addi­tion­al costs being passed to the per­son who ulti­mately pays. In the case pre­vi­ously men­tioned it was entirely unclear why addi­tion­al costs were levied by the inter­me­di­ate insurer–owned com­pany, and this is why some County Courts have rejec­ted such addi­tion­al costs.

How­ever, there could be poten­tial situ­ations where such addi­tion­al char­ging was trans­par­ent, and also neces­sit­ated by a busi­ness struc­ture chosen for legit­im­ate oth­er reas­ons, for example tax min­im­isa­tion. Wheth­er increas­ing the cost to the end con­sumer in order to achieve an unre­lated advant­age­ous fin­an­cial out­come for the com­pany as a whole is the ulti­mate ques­tion here, and one that is very inter­est­ing indeed.

Case Comment: Fallows v Harkers Transport (Royal and Sun Alliance, vehicle insurance)

Mr Fal­lows’ car was dam­aged by a vehicle owned by the defend­ants. Liab­il­ity was not an issue. Mr. Fal­lows’ vehicle was insured by Roy­al and Sun Alli­ance, who sought to recov­er their costs from the defendant’s insurers. The costs were £1825.53. Not a large sum. How­ever, the defend­ants objec­ted.

The reas­on for the objec­tion was that Roy­al and Sun Alli­ance arranged repair via a wholly-owned sub­si­di­ary, which then con­trac­ted with a sub­con­tract­or, who actu­ally repaired the vehicle. The sub­con­tract­or billed the sub­si­di­ary the sum of £1542.78. The sub­si­di­ary added on fur­ther costs, and billed Roy­al and Sun Alli­ance.

In Rom­ford County Court, the defend­ants ques­tioned the sum claimed. It was held that, giv­en the duty to mit­ig­ate, the best evid­ence of reas­on­able cost of repairs was that which RSA’s sub­si­di­ary nego­ti­ated with the sub­con­tract­or. There was no evid­ence that RSA itself could only nego­ti­ate a high­er price. While admin­is­tra­tion costs have been allowed by the courts in the past, there are no decisions allow­ing them to a sub­rog­ated insurer, let alone a sub­rog­ated insurer’s sub­sid­ary. And in coun­ter­bal­ance, there are decisions where admin­is­tra­tion costs have been dis­al­lowed.

The Judge (Platt J) said:

Since RSAARL is wholly owned by RSA the effect of these extra charges if they are paid by defend­ants is simply to boost RSA Group’s profits bey­ond the actu­al cost of repair by the mar­gins inser­ted by RSAARL. I can find no basis in law for say­ing that this is a course of action which a claimant insurer is entitled to take [..]. On the evid­ence the defend­ant has clearly estab­lished a fail­ure to mit­ig­ate on the part of the claimant.

Now that this judg­ment is pub­lic, the util­ity of this busi­ness arrange­ment to RSA is prob­ably moot. Oth­er insurers could use the same mod­el. This how­ever was found to be likely to lead to an increase in costs to the insured mem­bers of the pub­lic of some 25%.

RSA were held liable in costs to the defend­ant — exceed­ingly unusu­al in a small claim. Even though they were the claimant, they almost com­pletely failed to com­ply with pre–action pro­tocol and with the court–ordered dis­cov­ery pro­cess. For example, the exist­ence of a form­al invoice from the repairer to RSA’s sub­si­di­ary was not dis­closed, even once its exist­ence had become appar­ent dur­ing the tri­al.

Per­mis­sion was giv­en to appeal.

Judg­ment in the case can be found on BAILII at Fal­lows v. Hark­ers Trans­port (A Firm) [2011] EW Misc 16.

Your data in the Cloud is not secure from the US Government

Data stor­age in the cloud is clearly the where things are mov­ing just now. Giv­en the pleth­ora of devices people have — com­puters at home, laptops and tab­lets on the move, smart­phones in the pock­et, it makes per­fect sense for all of a person’s devices to use a single, com­mon repos­it­ory for shared inform­a­tion. Ser­vices such as Apple’s forth­com­ing iCloud at the domest­ic level, and commonly–used ser­vices such as Google’s Google Apps, and Microsoft’s Office 365 all store your data in their own clouds.

You’d think that this would be done with respect to Data Pro­tec­tion laws. Wrong. If the USA wants your data, the USA gets it. My friends Simon Bis­son and Mary Branscombe have the details: regard­less of European pri­vacy dir­ect­ives and the UK Data pro­tec­tion act, the US see the PATRIOT act over­rid­ing these for US com­pan­ies and EU sub­si­di­ar­ies of US com­pan­ies:

That means that US gov­ern­ment can (under the aus­pices of the act) request the data of any indi­vidu­al or com­pany that’s using US-owned or hos­ted ser­vices, no mat­ter where that data is actu­ally being held. It doesn’t mat­ter if you’ve geo-locked your data, and it only resides in European data centres, it can still be requisi­tioned and taken to the US. Yes, it’s an issue of nation­al secur­ity, but when res­ults can be found by machine learn­ing and trawl­ing massive data sets (the lar­ger the bet­ter), there’s a tempta­tion for gov­ern­ments to take all they can and more.

Undoubtedly this will lead to much hand–wringing in the EU Par­lia­ment. How­ever, what can be done? It is unlikely that the USA will give up their powers.

There­fore, the only solu­tion is in the hands of indi­vidu­als and com­pan­ies wish­ing to use cloud ser­vices — only use cloud ser­vices from wholly–EU–owned com­pan­ies host­ing your data inside the EU. While the leg­al pro­tec­tions you will have in those cir­cum­stances are not huge, they are bet­ter than none at all.

Oh — an after­thought. How happy do you now feel, if per­haps you have just giv­en a whole heap of your per­son­al inform­a­tion to Google, dur­ing the Google Plus sign–up pro­cess?

Hookway — I was there

Back in the middle of may, I had just fin­ished study­ing my judi­cial review mod­ules on my law course, and I thought it would be a good use of a free day to head to court to see judi­cial review in prac­tice. As luck would have it, there was a case lis­ted that day, the 16th May, at Manchester Civil Justice Centre:

R (Chief Con­stable of Manchester Police) v Salford City Magis­trates, case CO/3649/2011

Inter­est­ing, thought I. There had been a few cases in my notes where a decision of a Magis­trates Court had been judi­cially reviewed, but not any on the behest of the police. I decided to attend.

Of course, this case is now known as Hook­way. I really couldn’t have chosen a bet­ter case to sit in upon, in terms of its reper­cus­sions.

The prob­lem high­lighted by the case can be sum­mar­ised pretty quickly. Once the police arrest someone, they only have a cer­tain num­ber of hours to ques­tion them before they must be released. That time can be exten­ded, but only to a point. The ques­tion is, when a per­son is released on bail, is the “clock” still run­ning, or has it been paused?
It has been police prac­tice to assume the lat­ter as long as the cur­rent régime, intro­duced in the Police and Crim­in­al Evid­ence Act 1984, has been in force; but the sec­tions in ques­tion — 41 to 47 — are remark­ably unclear, and in fact make no men­tion of the clock stop­ping.

In the court itself, there were eight people. Mr Justice McCombe, the court clerk, one ush­er, two police­men, one police soli­cit­or, Ms. A Whyte QC, and me. Salford Magis­trates and Paul Hook­way were not rep­res­en­ted.

Every­one in the courtroom that day knew this applic­a­tion was dif­fi­cult, and that it had con­sequences. Every­one was fully aware that the reper­cus­sions of uphold­ing the lower court’s rul­ing would be far–reaching. Ms. Whyte QC ably led the court through the com­plex­it­ies of the legis­la­tion, point­ing out, entirely fairly giv­en that the defend­ants did not appear, the per­spect­ive from both sides of the argu­ment. There was abso­lutely no pre­vi­ous author­ity on the ques­tion, and only one aca­dem­ic work (which was not on point to the ques­tion at hand). The Judge and Ms Whyte slowly and care­fully picked their way through the six rel­ev­ant sec­tions of the act, tak­ing over two hours to do so.

It was hugely inter­est­ing to watch these people dis­sect­ing the sec­tions of the act in vari­ous ways, try­ing to tease out the pre­cise mean­ing of the words of the act. Ser­i­ous people, at a ser­i­ous task.

Sadly, I was unable to attend the handing–down of the judg­ment, which happened on Thursday the 19th May. The judg­ment wasn’t made pub­lic until the middle of June — and then, of course, there has been the usu­al raft of pub­li­city. While there has been some reas­on­able cov­er­age in the press, it’s sad to see that cov­er­age des­cen­ded rap­idly in the BBC and the Guard­i­an.

Today, two devel­op­ments have occurred. The Supreme Court have turned down a request for a stay of the rul­ing, pri­or to their hear­ing an appeal from it on the 25th of July. And on Thursday, the Gov­ern­ment are intro­du­cing legis­la­tion to over­turn the rul­ing.

While the details of the legis­la­tion are yet to be pub­lished, it is very likely that they will change the law to how it was believed to be pri­or to the rul­ing in Hook­way. This may be a missed oppor­tun­ity. Let­ters in the Guard­i­an sug­gest police bail can be abused, by the impos­i­tion of restric­tions dur­ing bail. Rather than enact in law a patch to re-estab­lish the status quo, might it be time to take a long look at the legis­la­tion sur­round­ing arrest, deten­tion and bail, and re–enact it to get rid of its incon­sist­en­cies, lack of clar­ity, and exploits?

Man tries to get dog returned using non-existent law

A man in Stock­port is try­ing to get his dog back, after he gave it away.

Great story. But the leg­al aspects are mis­re­por­ted, at best.

Firstly, there is no such law as the “Return of Goods Act.” Assum­ing what is meant is the Sale of Goods Act 1979 — it’s not rel­ev­ant. Sec­tion two of the act is clear it cov­ers goods sold for a price, not, as in this case giv­en away.

So what’s going on? No doubt we’ll find out after the case comes to court on the 2nd June. I have my sus­pi­cions.

Watch how the Supreme Court works

Words I’d nev­er thought I’d utter: I have a reas­on to watch Sky News. OK, on the web. The reas­on being is that Sky News is livestream­ing the UK Supreme Court.

When the Supreme Court moved into its new home in the Middle­sex Guild­hall in 2009, it had been fit­ted out for record­ing of all court pro­ceed­ings. Unfor­tu­nately, until now, this tech­no­logy had pretty much gone to waste. Interest in the details of the goings-on of the highest court in the land? Min­im­al.

So I’m very happy to see Sky News step­ping up and broad­cast­ing the Supreme Court’s pro­ceed­ings. A quick read of the homepage will let you see what’s going on, and find­ing the detail via a quick browse of the cur­rent cases list will give you the back­ground to the case.

The gen­er­al rule that justice is done in pub­lic is a strong thread in UK leg­al belief. While the broad­cast­ing of the Supreme Court’s pro­ceed­ings are of no interest and of little more rel­ev­ance to most people in the UK, the fact that it is broad­cast at all is a step in the right dir­ec­tion.

What would be good, of course, is a pub­licly-access­ible archive of debate. Law report­ing is good, and pub­licly-access­ible judg­ments on BAILII are a great step for­ward in the abil­ity to learn about the out­come of a case, but also under­stand its out­come and of the facts and reas­on­ing behind it.

This is the tele­vi­sion gen­er­a­tion, though. I per­son­ally would love for all pub­lic pro­ceed­ings to be recor­ded and made avail­able via an archive. Raw inform­a­tion is good — it allows people to go back to the ori­gin­al source later, rather than filtered excerpts, that can lose con­text. I fear, though, that it would be com­pletely unfeas­ible in terms of both raw cost and of poten­tial use­ful­ness.

I just don’t like throw­ing away raw inform­a­tion. One of these days I’ll write a post com­par­ing review of pre­ced­ent with archae­ology. But the one line sum­mary is that noth­ing beats the ori­gin­al.

Penalties from HMRC and reasonable excuses

For a long time, HMRC have taken the view that where the law allows a “reas­on­able excuse” for the late fil­ing of a return — be that a self-assess­ment per­son­al tax return, Cor­por­a­tion Tax return, VAT return or PAYE return — the reas­on­able excuse must relate to an event or situ­ation that was excep­tion­al and unfore­see­able. Ordin­ary fail­ings or mis­un­der­stand­ings were not enough.

We are def­in­itely see­ing, how­ever, a change in atti­tude from at least one Tribunal judge. In Colin Humphreys v Rev­en­ue & Cus­toms [2011] UKFTT 98 (TC), the tribunal said (at para. 8):

HMRC con­tends that if the appel­lant is to estab­lish that he has a “reas­on­able excuse” for the late pay­ment he must show that excep­tion­al cir­cum­stances exist. That is not the test stip­u­lated by the legis­lature. The words “reas­on­able excuse” are ordin­ary Eng­lish words to be giv­en their prop­er every­day mean­ing. There is no jus­ti­fic­a­tion for the gloss that HMRC seeks to put on those words.

I notice that one of the Tribunal judges in that case has gone some­what farther then before: In Ballysil­lan Com­munity For­um v Rev­en­ue & Cus­toms [2011] UKFTT 257 (TC) the tribunal said (at para. 3):

I have to bear in mind that this is a case in which a pen­alty has been levied. In those cir­cum­stances the decision of the European Court of Human Rights in Jusil­la v Fin­land (73053÷01) ECtHR (Grand Cham­ber) is highly mater­i­al. The Court decided that a pen­alty or sup­ple­ment charged by the rev­en­ue author­it­ies of a mem­ber coun­try is in the nature of a crim­in­al pen­alty and thus any pro­ceed­ings in respect of it attract the pro­vi­sions of art­icle 6 ECHR (right to a fair tri­al). Thus, in my judge­ment, it is for HMRC to sat­is­fy me to the crim­in­al stand­ard, so that I can be sure, that the required fil­ing did not take place.

So, we have a two-pronged attack here on HMRC’s insist­ence that an excuse must be excep­tion­al: firstly, an ordin­ary read­ing of the enact­ing legis­la­tion (Sched­ule 55 of the Fin­ance Act 2009) must be under­taken as the words “reas­on­able excuse” are not used with a spe­cif­ic defin­i­tion. And since the European Court of Human Rights have held that a pen­alty to make a return is essen­tially crim­in­al in nature, it requires a crim­in­al level of proof.

I wouldn’t be sur­prised if we see a first-stage tribunal determ­in­a­tion based on one or the oth­er of these points appealed. I per­son­ally am happy with the rul­ing based on the defin­i­tion of “reas­on­able excuse” — the phrase is clear, and I do not believe it to be ambigu­ous. Look, for example, at “reas­on­able doubt” — a phrase that has been clearly under­stood in crim­in­al cases for a very long time.

I’m not so sure though about the Jusil­la point. It seems to me to be a fairly inter­pret­ive read­ing of the case. One point, though, does jump out at me: the Grand Cham­ber (at paras 32–34) con­cern them­selves with the pro­por­tion­al­ity of the pen­alty. They have no prob­lems with 10% (with a cap at some level), they do seem to have a prob­lem with a fixed sum that is not in pro­por­tion to the tax owed.

It may be, ulti­mately, that “reas­on­able excuse” gets a leg­al redefin­i­tion, either judge-made or in stat­ute, but fixed pen­al­ties get changed into per­cent­age pen­al­ties. This may be of some advant­age to the indi­vidu­al or small busi­ness: it may reduce the pen­al­ties on small errors. That seems fair to me.

Superinjunctions: they are the newspapers’ own fault.

The post­ing on Twit­ter of the alleg­a­tions under­ly­ing the recent series of super­in­junc­tions provides a good time to take a look at why, in my view, the injunc­tions are a bet­ter thing than you might think.

I’ll do this by work­ing back­wards to the injunc­tion. But first, I need to estab­lish one concept.

What is inter­est­ing to the pub­lic is not the same as what is in the pub­lic interest. The news­pa­pers con­flate these con­cepts all the time, because it is in their interest, leg­al and com­mer­cial, to do so. But as Eady J said, in Mos­ley:

It is not for journ­al­ists to under­mine human rights […] merely on grounds of taste or mor­al dis­ap­prov­al.”

Human Rights. Not “Rights for those whom the news­pa­pers decide are OK.” They apply to every­one. All of the time. And I’d sug­gest, in gen­er­al, the news­pa­pers’ mor­al dis­ap­prov­al — pruri­ence, I think, is the best word — is much more to do with selling news­pa­pers than any sense of provid­ing inform­a­tion lead­ing to (using one defin­i­tion) any bet­ter­ment of gen­er­al wel­fare.

Now, news­pa­pers have rights too. I don’t deny that. But the for­um for these rights to be judged is ini­tially in court, not firstly in print and then in the court. At least the courts are inde­pend­ent — unlike the judge and jury of the press.

In court, we would see a fair tri­al of the issues. In such a tri­al, we would see two sets of human rights played out in oppos­i­tion to each oth­er: the right to pri­vacy of the indi­vidu­al (and their fam­ily), as guar­an­teed by Art­icle 8 of the European Con­ven­tion on Human Rights, incor­por­ated into UK law by the Human Rights Act 1998 — and the news­pa­pers’ right to free­dom of expres­sion, guar­an­teed by Art­icle 10 of the Con­ven­tion.

So, at a tri­al, the court effect­ively has a three step job to do. It needs to answer three ques­tions: Is the news­pa­pers’ right of free­dom of expres­sion engaged? The answer to this is invari­ably “yes”. Is the indi­vidu­al (and their family’s) right of pri­vacy engaged? That is often less clear. But if it is, what is the bal­ance in the pub­lic interest between the rights of the indi­vidu­al and the rights of the news­pa­per?

These are issues for tri­al. But put your­self into the person’s shoes. Even if you win, what do you get? Dam­ages — and a lot less than they used to be. Less than £50k. And your reas­on­able leg­al costs. More often than not, your dam­ages won’t cov­er the dif­fer­ence between your reas­on­able leg­al costs and your actu­al leg­al costs, which can be north of £250k without even try­ing. (I’ll post about how this works in the future.)

Oh, and an apo­logy. Remem­ber that 3 page art­icle that was the thing that kicked this all off? 3 pages of a tabloid is at least 600 square inches. You’ll be lucky if your apo­logy is 2. They’ll remem­ber the art­icle. You’ll be lucky if people even notice the apo­logy.

So — frankly, even if you win at tri­al about a pub­lished art­icle you’re already screwed. No mat­ter how inno­cent you are. Or how rich you are. It’s out there. Game over, from the news­pa­pers’ point of view. They’ve made their profit on the edi­tion.

So how can you pre­vent being screwed by pub­lic­a­tion? By pre­vent­ing it — by an injunc­tion.

What hap­pens with an injunc­tion is that the news­pa­per can’t print the story until they lose the case at tri­al. They win at tri­al? They print. You get screwed (and rightly so). You win? They don’t get to print. It still costs you fin­an­cially, but the story — which had it been prin­ted, would have really hurt you — doesn’t get prin­ted.

So what the injunc­tion does is freeze the situ­ation until tri­al. Rather than get a 2 inch apo­logy for a 600 inch art­icle, the art­icle doesn’t get prin­ted unless the news­pa­per can jus­ti­fy it — prove that it’s jus­ti­fied in the pub­lic interest.

Now, of course, news­pa­pers don’t like this. They want to make money by pub­lish­ing things that are inter­est­ing to the pub­lic. So they tried to get around injunc­tions. Roughly by pub­lish­ing stor­ies like this:

TV celebrity X has taken out an injunc­tion pre­vent­ing his iden­ti­fic­a­tion, while we have evid­ence that he had an affair with a co-presenter. In oth­er news, doesn’t June Smith, wife of TV presenter John Smith, look upset in this photo? We hope she is all right.”

This is known as “jig­saw iden­ti­fic­a­tion”. And the news­pa­pers doing exactly as I describe above is why super­in­junc­tions were inven­ted. Because without them, the news­pa­pers had found a way to make an ordin­ary injunc­tion impot­ent.

So super­in­junc­tions are neces­sary to pre­vent news­pa­pers print­ing what the hell they want, with ulti­mately no leg­al retri­bu­tion for them at tri­al even if you are com­pletely inno­cent. They have insur­ance for this sort of thing. And all of their actions indic­ate that in most instances, what they are look­ing to do is print a story that sells, not one that cre­ates pos­it­ive action by inform­ing. If that is what they actu­ally did, there are argu­ments in law if what they are doing is journ­al­ism, and not merely gos­sip.

What super­in­junc­tions do is pre­vent news­pa­pers print­ing inform­a­tion that has not been found, at tri­al, to be in the pub­lic interest. If the news­pa­pers can explain why what they wish to print is in the pub­lic interest, then (now) the injunc­tion will not be gran­ted in the first place.

Yes, pub­lic scru­tiny has got us to this point. Trafigura was wrong. The judi­ciary aren’t per­fect, espe­cially when the leg­al ground is mov­ing. But this is not a reas­on to give news­pa­pers free reign. The ques­tion to ask is whose use of their undoubted power has been more irre­spons­ible over­all? Judges or news­pa­pers?

There is a bet­ter bal­ance to be struck. It’s not right. It will improve. But what I am wait­ing to hear is when news­pa­pers men­tion their respons­ib­il­it­ies quite as often as their rights.

In oth­er news: I remem­ber the day where the papers were more to do with news than enter­tain­ment.

Instant Messenger Conversation Modifies Contract; Signed With ‘Awesome’

This isn’t a UK case, but I could see the same hap­pen­ing here — as the art­icle states, all the ele­ments of a con­tract seem to be present:

Instant Mes­sen­ger Con­ver­sa­tion Mod­i­fies Con­tract; Signed With ‘Awe­some’:

Many people don’t quite real­ize that almost any kind of “agree­ment” can be seen as an enforce­able con­tract in the eyes of the courts. While some people think a con­tract has to involve a full writ­ten doc­u­ment and sig­na­tures, that’s often not true at all. Take, for example, a case involving affil­i­ate sales of e-cigar­ettes, in which a writ­ten con­tract was deemed to be mod­i­fied by a simple instant mes­sen­ger con­ver­sa­tion. The affil­i­ate com­pany, CX Digit­al, wanted to remove the con­trac­tu­al lim­it of 200 refer­rals per day for sales of Smoking Everywhere’s e-cigs, and the fol­low­ing IM con­ver­sa­tion ensued:

[CX] (2:50:08 PM): We can do 2000 orders/day by Fri­day if I have your bless­ing

[CX] (2:52:13 PM): those 2000 leads are going to be gen­er­ated by our best affil­i­ate and he’s legit

[Smoking Every­where]: is avail­able (3:42:42): I am away from my com­puter right now

[CX] (4:07:57 PM): And I want the AOR when we make your offer #1 on the net­work

[Smoking Every­where] (4:43:09 PM): NO LIMIT

[CX] (4:43:21 PM): awe­some!

Smoking Every­where then tried to bail out on pay­ing CX the affil­i­ate fees owed, and claimed (among oth­er things) that this didn’t rep­res­ent an actu­al modi­fic­a­tion of the con­tract which had the 200 per day lim­it stated. The court didn’t buy it, not­ing that this is a per­fectly fine example of an offer, counter-offer and accept­ance, all encap­su­lated in instant mes­sen­ger.

(Via Tech­dirt.)