It is not every day that one reads an article in a newspaper by someone that is – apparently – an experienced senior lawyer that is riddled with palpable nonsense about a faraway system of which the author knows little. Ordinarily such things come from Geoffrey Robertson QC in his occasional interventions into scots law on Lockerbie and the like. But luckily for you, my regular reader, today was such a day.
The Herald advises us that “Graham Shear is litigation partner at Berwin Leighton Paisner. He has represented footballers including Ashley Cole and Kieron Dyer, and has acted in several celebrity super-injunction cases”.
Here’s his profile. Here’s the press release announcing that Mr Shear has been appointed to his firm. From this we see, “Graham has over 22 years experience as a commercial litigator both in the UK and internationally.” Sadly, for Mr Shear his extensive experience in the UK does not appear to include Scotland.
So, what did Mr Shear say today.
“I DO think the editor of the Sunday Herald has chanced his arm here.
“The lawyers acting for CBT secured the super-injunction in an English court but the law concerned originates from European conventions which the UK as a whole is signed up to, so I can’t see any reason why the injunction should not apply in Scotland.
“Effectively, what was in place was already a worldwide injunction against naming the footballer in this case. “
I won’t consider his later substantive arguments on whether or not we should have a well developed law of privacy. Let me instead look at his comments on Scots law, a far away system of which he knows little.
To begin then, “I DO think the editor of the Sunday Herald has chanced his arm here.”
There is one Scottish lawyer who agreed with that. The legal adviser for The Scotsman who – in the peeved coverage from the Scotsman yesterday (a case of “I wish we’d thought of that”?) appeared to argue that the bods at the Herald were FOR THE GAOL. However, Mr Deane’s argument is much more nuanced than that of Mr Shear. First, he relies on the English prosecution in the Spycatcher case to argue that third parties have who are aware of injunctions are bound by them. That’s true. In England. The Sunday Herald is not owned by an English company. The Sunday Herald is not published in England. Indeed, the Sunday Herald appears – to an objective onlooker – to be rather Scottish with a predominantly Scottish distribution. Cut off the distribution to the south of Scotland and the north of England, avoid putting your story on-line, and you seem to be in the clear. Because you are never publishing or distributing in England. Second, Mr Deane argues “Even though the basic principle in Scots law remains that service of the interdict must take place on the specific newspaper, the Spycatcher case has been interpreted by the Scottish media as restraining publication where there is the requisite knowledge.” Note that: interpreted by the media. Not by the courts (whose pronouncements in the Scottish legs of the Spycatcher litigation gave no such hints). And were the newspapers interpreting Scots or English law? Cut off the publication (by downloading) in England and cut off the distribution in England (by having a limited circulation on the day) and there should be no problem.
Mr Deane’s arguments relate to practical problems that can be (and were) addressed by the Sunday herald and publication in scotland at some point of the identity of one of the claimants south of the border was (as some of us argued) inevitable. Addressing these practical problems to cut off publication in England means there is no chancing of the arm going on.
Mr Shear’s arguments are – shall we say – somewhat odder.
“The lawyers acting for CBT secured the super-injunction in an English court but the law concerned originates from European conventions which the UK as a whole is signed up to, so I can’t see any reason why the injunction should not apply in Scotland.”
Let’s consider that more fully. English privacy law comes from the ECHR. The Uk signed up to the ECHR. Therefore, English injunctions should automatically apply in Scotland. Now, I can’t quite put my finger on it but there seems to be a logical fallacy here.
Let’s test it with another example. French privacy law comes from the ECHR. The UK signed up to the ECHR. Therefore French privacy injunctions should automatically apply in Northern Ireland.
Or Turkish privacy law derives from the ECHR. The UK signed up to the ECHR. Therefore Turkish privacy injunctions should automatically apply in England.
To state this is to show its ridiculousness. France and Turkey are separate legal systems. We recognise their judgments and have a mechanism whereby judgments from foreign systems can – in certain cases – be applied within our jurisdiction. We do not automatically give effect to them. If french film star, M or Mlle X had a privacy restriction in France a British paper could ignore it, unless M or Mlle X raised a parallel action in whichever UK jurisdiction (Scotland, England, Northern Ireland) they wished to cover. Now, it may have escaped Mr Shear’s attention but Scots law is not the same as English law. From a Scots law perspective English law is as foreign as Turkish or French law. It does not apply in scottish courts. We can take account of argument in English cases. It can be persuasive authority but it does not bind our judges – not even if the Supreme Court (including the two Scottish members) pronounces in an English case. The Scottish courts can take a different view. This is why we have a rational system of property law based on civilian principles, rather than a mishmash of law and equity. It’s why we have no doctrine of consideration in contract law. And so on and so on. As scots law is a distinct system, foreign law – from an English law perspective – a judgment of English law has no automatic application up here. If it did have automatic application we wouldn’t need s 27 of the Civil Jurisdiction and Judgments ACt 1982 (discussed here yesterday).
Mr Shear’s argument is either arrogant (an instance of English legal imperialism) or ignorant (he thinks english law applies throughout the UK). Either way it is palpably incorrect.
That it smacks of legal imperialism can be seen from his follow up. “Effectively, what was in place was already a worldwide injunction against naming the footballer in this case.”
Mmm, no we don’t. What we have is an English court order purporting to have extra-territorial effect. If it had worldwide effect it would come as news to American lawyers. It would come as news to Spanish lawyers. It comes as news to Canadian lawyers. And it came as news to Scots lawyers. English court orders do not – except in very unusual circumstances – have automatic application in Scotland. Interim orders (such as interim injunctions) have even less protection.
English law cannot apply across the world. The world doesn’t care. The other countries in the world tend to apply their own law – thank you very much – and get on with it. They laugh at the imperialist pretension of English law. As do the Scots. And every now and then we like to remind you that we have a different system. With its own court structure, its own traditions, and an eye to continental Europe and the civilian tradition of Gaius, Justinian, Grotius, Voet, Pothier, von Savigny et al as much as to our neighbouring kingdom.
And is that what lay at the heart of the CTB injunction? An English lawyer too arrogant or too ignorant to believe that anywhere in the UK could conceivably have a different law, and might not automatically accept the application of an order from an English court purporting to do that which it cannot possibly achieve?
Other English lawyers are less complacent. They represent clients and win injunctions south of the border and then come north to get an interim interdict under s 27 of the Civil Jurisdiction and JUdgments Act 1982. These orders are not unusual. What should be asked by those celebrities with these injunctions south of the border is has their lawyer raised such an interdict action in scotland? And if not, why not? And if not, and you’re named by a Scottish paper leading to naming south of the border, has your lawyer been negligent?