"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Thursday, 26 April 2012

Halsbury's Law Exchange event

Published on Halsbury's Law Exchange here

Last night Halsbury’s Law Exchange, in partnership with the international law firm Eversheds, hosted its first panel discussion. The subject was “Law Reporting in the New Media Age”.

It was chaired by HLE chairman Joshua Rozenberg, with the panel comprising Siobhain Butterworth of the Guardian, Katy Dowell of The Lawyer, David Allen Green of the Jack of Kent Blog, Andrew Sharpe of LexisNexis and Adam Wagner of the UK Human Rights Blog.

The panel discussed how blogging and tweeting are changing the way law is presented to the public. The event was opened by Neil Mohring, head of Eversheds’ Media Group, who observed that while new media presents significant opportunities, the legal profession is traditionally conservative, which leads to questions about how it can and will adapt.

Interesting accounts were given about how some of the panellists’ blogs began. David Allen Green’s readership, for example, took off after he drew attention to the Simon Singh libel trial and, modelling himself on science bloggers he admired, began to explain to the general public how and why it was the trial had come about. Adam Wagner, for his part, began by modifying an updater service his chambers was already running, and a short time later his blog has attracted over one million visitors.

One of the first questions was why lawyers blog, when blogging doesn’t pay. Years ago a similar question was asked as to why such a high proportion of letters to the Times came from the clergy, which prompted the reply “vanity and an excess of spare time”. In the case of the lawyers the former might often be present but the second is generally not. For example, despite the considerable popularity of his Jack of Kent blog, David Allen Green disclosed that it is largely unremunerative, to put it mildly. Andrew Sharpe observed that a blog he ran whilst he was in private practice was successful in terms of numbers of followers, and raised the firm’s profile accordingly, but there was no way of measuring the effect in a tangible fashion such as increased billable hours.

No blog, therefore, seems likely to displace the day job of a barrister or solicitor. It follows that legal blogs show another side of lawyers somewhat contrary to the public stereotype: doing something of public benefit, and fulfilling the lawyer’s natural desire to set the world to rights. Indeed, the reason LexisNexis established and continues to support Halsbury's Law Exchange itself (which is a non-profit, independent think tank) is part of a commitment as a business to supporting the rule of law.

Further questions included whether blogs and tweets can or should be regulated so that the public are not misled. It was quickly pointed out that most blogs contain a disclaimer that they do not offer legal advice! It was then observed that well-known legal bloggers operate a sort of informal peer-reviewing group, who are quick to correct each other. Also, any blog found to be making egregious errors will quickly lose credibility and readership along with it. Moreover, as Adam Wagner observed, blogs written by practising barristers will fall within the jurisdiction of the Bar Council.

A related question was whether jurors can or should be shielded from the internet and restricted only to what is said in court. The consensus seemed to be that it is simply not realistic in the age of smartphones and near-universal internet access. We therefore may as well face up to adopting the American model where jurors are subject to far fewer restrictions, and are instead urged to exercise their own judgement.

Another can of worms concerns who might be liable for blogs, tweets and retweets that are libellous or in contempt of court. The last word is yet to come on that, one suspects. Siobhain Butterworth opined that even bad mistakes should not attract prosecution if they are quickly withdrawn.

Katy Dowell, speaking from the perspective of a trade magazine, pointed out that the internet has rendered breaking news the exclusive preserve of online media, and in particular twitter, due to the speed of publication. This leads to scoops being given away for free, on the simple pragmatic basis that if one person does not tweet a story, then chances are someone else will.

The debate was fortunate to attract a distinguished audience as well as a distinguished panel. Simon Bucks from Sky News, for example, spoke about his campaign for cameras to be allowed in court, which attracted almost unanimous support, though possible difficulties were acknowledged (for a related post see here).

Many other interesting points were made, and we hope to continue the discussion on this site and in future events.

All of us at Halsbury’s Law Exchange would like to thank Joshua Rozenberg for chairing the event, the panel for lending their expertise, the audience for attending and Eversheds for supporting HLE by kindly hosting the event.

Monday, 16 April 2012

Brewer v Mann: another vintage Bentley

No sooner had my earlier article on Old Number One Bentley been written than I had the pleasant surprise of reading about another mechanical survivor from the blood and thunder days of the Bentley Boys featuring in court. Once again the question of originality arose in the context of a classic Bentley whose purchaser alleged it was not the car they had thought it to be.

The case was brought by the ironically named Mercedes Brewer against the well-known vintage Bentley dealer Stanley Mann, his company and a finance company. Mrs Brewer, with the finance company’s help, paid £425,000 for a 1930 “Speed Six” model sold by Mr Mann.

After a year’s happy motoring Mrs Mann suddenly stopped paying the hire instalments. She contacted an auction house, who said that the car was unworthy of the description “Speed Six”, because that applied to a particular type of engine which had only been added to her car during a later restoration. Meanwhile, the finance company had repossessed the car and sold it back to Mr Mann for the same price as Mrs Brewer had paid. Mr Mann then restored it further and sold it on for some £675,000.

At that point, one might have assumed, there would be no dispute – Mrs Brewer had disposed of the car, the finance company had got its money back and Mr Mann had made a profit. Yet the first two were still unhappy: Mrs Brewer felt she had been misled, while the finance company had incurred costs of about £61,000 in recovering and storing the car before Mr Mann bought it back. Mrs Brewer was first out of the blocks issuing proceedings.

Continue reading here or see the New Law Journal, vol 176, 6 & 13 April 2012, p 510. This article will also form part of my forthcoming book Law Stories.

Thursday, 5 April 2012

Cutting out the deadwood

For Halsbury's Law Exchange

Pub quizzes often include a round or two on old laws supposedly still in force – the likes of being able to drive livestock over London Bridge, or to have cakes and ale during exams, or whether the death penalty is still in force for arson in the Royal Docks. A number of future answers are about to be altered at the behest of the Law Commission, which has compiled a long list of statutory deadwood to be felled this summer by an axe in the form of the Statute Law (Repeals) Bill.

According to the Law Commission’s press release, the Bill

“... will repeal 817 whole Acts and part repeal 50 other Acts. The Bill covers a diverse range of subjects, from poor relief and lotteries to turnpikes and Indian railways. The earliest repeal is from around 1322 (Statutes of the Exchequer) and the latest is part of the Taxation (International and Other Provisions) Act 2010.”

The press release goes on to list much interesting historical doggerel due to be culled, including:

• An Act of 1856 passed to help imprisoned debtors secure their early release from prison

• A 1710 Act to raise coal duty to pay for 50 new churches in London

• 38 obsolete Acts relating to the various railway companies operating in British India and the wider East Indies

• 40 Acts relating to the City of Dublin and passed by the UK Parliament before Ireland was partitioned in 1921

• A 1696 Act to fund the rebuilding of St Paul’s Cathedral after the Great Fire of 1666

• An 1800 Act to hold a lottery to win the £30,000 Pigot Diamond

• 57 obsolete Acts to raise money for the parish poor, including a 1697 Act to run a workhouse in Exeter

• 295 obsolete railway Acts.

• 16 Acts passed between 1798 and 1828 to impose duty on every pint of ale, beer or porter brewed or sold in parts of Scotland

• A 1696 Turnpike Act to repair the roads between Reigate (Surrey) and Crawley (West Sussex)

The dilatoriness which seems to have accompanied the funding of St Paul’s Cathedral would probably not have surprised Sir Christopher Wren, since Parliament withheld half his salary for the project for 14 years in the hope of spurring him on. Meanwhile internet researches suggest that the Pigot diamond, named after the former governor of Madras (now Chennai) Lord Pigot (1719 – 1777), was reduced to powder on the orders of its owner Ali Pasha, thus rendering the 1800 Act a legal fiction. Nowadays it is not debtors so much as undeserving creditors (in the form of disgraced former bankers) who receive public opprobrium ...

One could go on. But there are two serious points to be made about long forgotten but still surviving legislation. The first is that it cannot be assumed that an Act of Parliament or any other legal rule has disappeared just because it has not been used for many decades or longer. By the 1950s, for example, the Court of Chivalry had not sat for two centuries, and most assumed it had ceased to exist. Yet it was revived in the celebrated case of Manchester Corporation v Manchester Palace of Varieties Ltd [1955] 1 All ER 387: since no case or legislation could be found which had formally abolished the court, it had to be extant.

An earlier and more dramatic example might be Ashford v Thornton (1818) 106 ER 149, where the defendant in a murder case managed to escape liability by invoking the ancient right of trial by battle. As with the Manchester Palace case, the right (to the mode of trial) had not been explicitly abolished by Parliament, and the court accordingly had no option but to rule that it was still available. The plaintiff, a slight chap unwilling to try his luck, declined to join battle, and so the defendant effectively escaped a murder charge.

More recently the Guardian newspaper managed to generate a headline for itself by dredging up before the courts the Treason Felony Act 1848, a remnant from the days of European revolutions which must have alarmed those in Westminster at the time. On the literal reading of s 3 of the Act it appeared that even a publication which called for peaceful overthrow of the monarchy might constitute a criminal act. The Guardian sought, amongst other things, an assurance from the Attorney-General that no prosecution would ensue if it printed some articles advocating Britain becoming a republic. When that was not forthcoming it brought judicial review proceedings, which ultimately made it to the House of Lords (R (on the application of Rusbridger and another) v Attorney General [2003] 3 All ER 784).

The law lords made it clear that the litigation had been a waste of time since no prosecution would ever have been brought, but the Guardian was able to point to the fact that s 3 had never been repealed despite everyone agreeing that it should have been.

It is therefore worth spring cleaning the statute book lest anyone try something similar.

The second reason is that it is a step in a direction the law has always wanted to head, but rarely ever does – simplification. It is pie in the sky to assume that the law will ever be comprehensible to anyone other than experienced professionals, but even they have their work cut out with a statute book that is overlong and clogged up with ancient sections that no-one ever reads and would have no relevance even if they did.

Periodically there are calls for a particular area of law (or even all the laws) to be codified, or better consolidated. Ironically in the days of Empire this is something that Britain usually did for the colonies, who therefore ended up with a better structured statute book than Britain ever managed for itself. For many reasons it is probably unlikely we will ever end up with much codification, but that does not mean that small steps to improvement along the lines of the Statute Law (Repeals) Bill are not worthwhile.