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, Salesforce.com 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.)