As Our Man At The Bar breathlessly reported, brushing off his gaberdine before ungraciously plagiarizing the opinion of real lawyers in the Home Country, the widespread love of a cheap pint was very much to the fore in the aftermath of a landmark English Court of Appeal case in 2004.

Buoyed by the courage of a resounding Court of Appeal judgment British papers were full of stories about anticipated reductions in beer prices and expected problems for pub companies.

Now hopes of cheap beer have been dashed by the House of Lords.

But, having sent OMATB to report this long-running saga at great expense, let us begin at the beginning and rely on his fine talent for pinching other people’s efforts.

In 1991 Bernard Crehan, publican of  The Phoenix and The Cock Inn in Staines  entered into lease agreements with Inntrepreneur Pub Company which required him to buy specified beers from Inntrepreneur or its nominees.

Specified beers were listed by type rather than brand and Inntrepreneur nominated Courage as its supplier under the leases.

As reported in the opinion of TLT Solicitors at the time (before OMATB got his paws on it) business at The Phoenix and The Cock Inn was not a success. The businesses failed, resulting in Mr Crehan surrendering both leases and accumulating a number of debts.

In June 1993 Courage brought an action against Mr Crehan for unpaid debts. He counterclaimed against Courage and joined Inntrepreneur as a defendant to the counterclaims.

In the counterclaim, which was taken forward as a test case, Mr Crehan claimed that the beer tie arrangement under the Inntrepreneur leases breached Article 81 of the European Union Treaty and made a claim for damages in respect of that breach.

So far so cloudy.

(OMATB wants to know if another treaty, the Treaty of Waitangi, might be made useful by slashing beer prices).

The case considered the competition law legality of a beer tie which obliged Mr Crehan to buy most of his beer from Courage.

During the litigation a number of questions were referred to the European Court of Justice (ECJ) including: whether a party to an anti-competitive agreement could rely on Article 81 to seek relief from the courts from the other contracting party; and if so, was that party entitled to recover damages resulting from adherence to the clauses that were prohibited under Article 81?

The ECJ reckoned a contracting party could rely on the invalidity of an agreement to which it was a party.

In addition, a contracting party could recover damages in respect of a breach of Article 81, provided that national courts were permitted to prevent a claimant from recovering damages if it had “more than negligible responsibility” for the distortion of competition.

It’s about here OMATB sent a request for more expenses.

In June 2003 it was held that Inntrepreneur’s leases did not infringe Article 81 and therefore Mr Crehan was not entitled to damages essentially because entry into the market for the supply of beer was not restricted or limited by beer tie arrangements at the time the leases were entered into.

But that decision was inconsistent with findings of the European Commission in other similar beery proceedings when it determined that beer tie arrangements from 1990 to 1999 in the United Kingdom had the cumulative effect of considerably hindering independent access to the beer supply market for new national and foreign competitors.

Mr Crehan appealed.

The whole affair was further murked by development in the UK pub company industry and changes to the regulatory regime including things called Beer Orders.

[Swat up on Beer Orders yourselves if you are keen enough, they’re complex beasts.}

In any event the English Court of Appeal, doubtless dying for a jar or two itself, came down heavily in Mr Crehan’s favour on virtually all counts and awarded him £131,336, assessed on the basis of the capital value that the businesses would have had at the time the leases were surrendered if they had been free of tie. This differed from the lower court’s assessment of damages, which was more generous to Mr Crehan and was based on projected turnover for the full term of the leases.

Inntrepreneur then appealed and now the House of Lords has disagreed with the Court of Appeal.

A news release from 20 Essex Street, the London chambers of Iain Milligan QC, the leading counsel for Inntrepreneur, explained it was the first time a British court had awarded damages for breach of EC competition rules.

20 Essex Street said the House of Lords hekld that the original trial judge had been correct to reach his own conclusion of fact on the state of the UK beer market, having heard full evidence on the issue at the triakl of the action.

According to 20 Essex Street, in judgments that considered in some detail the relationship between the European Commission, as the central competition enforcement institution, and national courts, with the suty toi enforce competition rules, the Houe of Lords held that as a matter of European Community law, a national court was not bound by findings of facts of the Commission in proceedings involving different parties and different agreements.

“The Court of Appeal’s contrary conclusion lead to a denial of a fair trial for Inntrepreneur..”

The statement said the issues in the appeals raised important questions of enforcement of EC competition law by national courts and, potentially, by national competition authorities, and the relationship between those bodies and the EC Commission.

Seven QC’s, backed by eight other lawyers, took the case to the House of Lords.

“No wonder their beer is warm with all this palaver to go through before its gets into your glass,” mused OMATB, running a slide rule over his beer price expenses conversion table.

Posted July 28, 2006

Judge Takes The Law Into His Own Hands

A court reporter was shocked and disgusted when she saw former Oklahoma judge Donald Thompson shaving his scrotum, and using a penis pump in court.  Lisa Foster,  a court reporter for 15 years is the final state witness in the trial of Thompson, who is charged with four counts of indecent exposure  

Read more

New Celebrites of the Libel Courts

Mark Stephens reports in the Times Online that business magnates from the financial world are replacing celebrities as the main clients of libel lawyers in London. These new clients are targeting the media as they become persuaded that any hint of corruption, or unorthodox business practices will impair their ability to do business in London.

Hypnotist and not irregular visitor to his libel lawyer, Paul McKenna has been suing the columnist Victor Lewis-Smith and the Mirror Group over an article published in 2003 that he allegedly had a “bogus doctorate” from LaSalle University in Louisiana.

But such colourful court actions are now rarities: McKenna is bucking the trend for celebrities to fight shy of the libel courts. Instead, businessmen are the new celebrities of the libel bar; albeit that for me Mohamed Al Fayed does not have quite the same allure as Sharon Stone.

Time was when the tiniest slight that pricked the ego of a “star” had them reaching into the closet for their libel lawyer to remove the stain. But now it is the perceived damage to global business interests that sends magnates rushing to those same lawyers.

The financial and sometimes murky world of investments has become the food and drink of libel disputes, rather than descriptions such as that by the gossip columnist Cassandra, who - writing in 1956 referred to Liberace as: “. . . summit of sex — the pinnacle of masculine, feminine, and neuter. Everything that he, she and it can ever want. This deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother love . . . He reeks with emetic language that can only make grown men long for a quiet corner, an aspidistra, a handkerchief, and the old heave-ho. Without doubt, he is the biggest sentimental vomit of all time.”

The falsehood that Liberace’s libel lawyers scotched was the suggestion that some readers could have divined from these words that Liberace might just conceivably have been less than 100 per cent heterosexual.

Similarly, the actress, Charlotte Cornwell was awarded solatium of £10,000 for the (obviously false) suggestion made in a review by Nina Myskow that: “She can’t sing, her bum is too big, and she has the sort of stage presence that jams lavatories.” So it will no doubt come as sadness to some (mainly their own) that libel lawyers are no longer the first port of call for the offended celebrity. Instead, this traditional clientele is deserting the libel bar in favour of the more seductive charms of PR and spin-doctors.

More sophisticated celebs have now learnt what many knew all along, that positive PR does more to enhance a reputation than fighting a libel through the courts. Positive spin is less risky, much less costly and far less inconvenient than a libel suit that might take years to fight.

What’s more, a lawsuit — which is subject to the vicissitudes of litigation — could well be lost. Worse, it could cause damage to the celebrity “image” or brand, something far more valuable in money terms today than any reputation.

Spin-doctors now feed the media with positive speech to drown out the negative, and often make adept use of errors and corrections columns where appropriate. This PR-led approach feeds well into the notion of “speech meeting speech” in its purest democratic form — the readers are left to make up their minds between competing voices on matters of moment.

The result of this change has been the emptying of the corridor outside (libel) Court 13 of its erstwhile habitué: the celebrity. But the families of libel lawyers need not fear that their lifestyles will be downsized radically: George Carman, QC, used to tease mischievously that he named additions to his homes after his more celebrated cases, “the Jani Allen swimming pool” the, “Jonathan Aitken wing” (on the right, he said), “the Gillian Taylforth erection” near the end of his property (at least, the way he told it.) Rather, libel lawyers have discovered new forms of high-risk litigants: international businessmen. Large businesses and captains of industry are assisted by the likes of Carter-Ruck, David Price and Schillings, who are feeding a libel bar that might otherwise be hard-pressed for work. One form in particular has been a particularly lucrative source of clients. The nouveau riche Russian oligarchs and Middle Eastern businessmen turn not only to the libel boutiques but also to the second and third-tier City practices such as Addleshaw Goddard, CMS Cameron McKenna, Eversheds, Lovells. These new clients are persuaded that even the slightest hint of corruption or unorthodox business practices in emerging markets, or links to unsavoury characters (however tenuous) will impair their ability to do business in London.

But savvy people-of-affairs in the commercial world are not as media savvy as celebrities and their managers have become. And so the media are increasingly their targets. In recent years the Reuben Brothers, brought libel proceedings using both Lovells and Carter Ruck against Fortune Magazine about what they perceived to be a slight arising out of their business dealings in Russia.

City businessman Rupert Lowe, also, until his recent resignation, the chairman of Southampton Football Club, was awarded £250,000 following an article in The Times that claimed he had acted “shabbily” by suspending former manager Dave Jones.

American businessman J. Shelby Bryan brought libel claims against the Evening Standard and The Daily Telegraph. Collins Stewart Tullett and Terry Smith, its colourful chief executive, visited the Financial Times in the libel courts for £4.3 million.

This was not Mr Smith’s first trip to these courts. He and his firm had previously won “substantial” damages from Jeremy Benjamin, a fund manager who posted false allegations on the Motley Fool website using the invented web name “analyser71”. Collins Stewart Tullett and Terry Smith were represented by Keith Schilling.

Notwithstanding some favourable results for businessmen, these gains are likely to be short-term. The notion that a jury verdict and an award of damages in the modern era will lead all the public to believe that there is no truth in an allegation is the delusion or fantasy of the libel lawyer.

The public is increasingly sceptical and questioning, as well as interacting with the news to ascertain more information in order to make up its mind.

The argot of the London libel pleader is such that the selfimportant, pompous, naive, and ignorant, as well as the innocent, will assuredly become ensnared in the new business of libel.

Mark Stephens is a libel lawyer at Finers Stephens Innocent LLP

Feedback on this story to jockanderson@ihug.co.nz  Posted July 25 , 2006.

LAWYERS IN THE LAND OF THE WIERD

The shenanigans seen on Boston Legal pale in comparison to what lawyers get up to in real life in the States.

According to the New Haven Register a law student at Yale was arrested on voyeurism charges after he videoed a roommate and his girlfriend in the shower together using a pinhole camera. His artistic efforts were revealed when a third student stumbled upon it on a shared hard drive.

A lawyer in Wheaton Illinois took creepiness to further lengths when he set up a camera in the potpourri basket in the Ladies at his firm and took thousands of photos over a two-year period. He pleaded guilty to eavesdropping and unauthorized videotaping and was placed on two years probation and ordered to undergo council ling. He now works as a telemarketer apparently.

New Jersey lawyer Daniel Walsh was acquitted of drunk driving after his date with a Hudson County Sheriff’s officer turned ugly last July. When he refused to go home with her she repeatedly rammed his car with her Ford Explorer. When he got out to calm her down she hit him with her car, but didn’t seriously injure him according to the Jersey Journal.

Feedback on this story to Jock Anderson jockanderson@ihug.co.nz

Posted 19/07/2006

Australian Federal Court Rejects AWB Document Demand

The Australian Federal Court has rejected  a demand by Terence Cole QC, to immediately examine the more than 40 cartons holding 1240 secret documents related to the Australian Wheat Board’s kickback to Saddam Hussein’s regime in Iraq.  The AWB helped the Hussein regime breach sanctions by secretly inflating wheat sale invoices that it presented to the UN under the oil for food program.

The collection of emails, letters, power point presentations, hand written notes and other documents held by firms representing the AWB (Blake Dawson Waldron, Minter Ellison, and Arnold Bloch Leiber), might expose that the AWB executives and its legal advisers knew about the $A290 million of kickbacks paid to Iraq.

While Mr. Cole has repeatedly demanded in his enquiry  that the documents be handed over the AWB believes that they should be shielded by legal professional privilege. The Federal Court has not yet set hearing dates for the AWB claim that the documents are protected by legal privilege. It may take a week or more for the court to hear argument on every category of document held by the AWB. The court will fix a timetable this morning.

In June the Howard Government enshrined the power of the Cole Commission to examine confidential documents in the Royal Commissions Act, however the AWB had already launched court proceedings to stop Mr. Cole. AWB intends to argue that the amendments are unconstitutional.

On July 18 Federal Court Justice Neil Young barred Mr. Cole from issuing any more demands for documents until the case is decided. Commissioner Cole has said he will not reconvene the Commission until he has everything from the AWB that he is entitled to. After a third extension his reporting deadline is now the end of September.

Sources: ABC Online, The Australian, The Age company Limited

Posted 19/07/2006

 Feedback on this story to jockanderson@ihug.co.nz 

HIRE ME – I’VE GOT CONNECTIONS!

In June TIMESONLINE told us that the fragrant Cherie Booth (the QC married into the Blair family) lost her final appeal in Malaysia’s Federal Court to act in a high profile legal case when local expertise was deemed perfectly adequate.

Chief Justice Ahmad Fairuz Sheikh Abul Halim, leading a panel of five judges said, “We agreed with the opinion of the High court judge that such legal expertise is available among local advocates and solicitors.”

Ms Booth was humiliatingly banished from sitting with the legal team representing construction company Fawziah Holdings and ended up sitting in the public gallery.

Fawziah Holdings is involved in a lawsuit linked with allegations of government corruption against Metramac, in connection with the financing and building of roads in Kuala Lumpur. Metromac’s lawyer thought her presence was an attempt to put pressure on the local authorities, but it probably backfired.

Ms Booth’s appeal costs of some £60,000 -£120,000 are to be met by Metramac, however questions have been raised regarding who pays for the extra security costs. Not only was security tightened around the federal court, but Ms Booth, who arrived at court in a BMW, also travels with her own security team.

Mark Stephens, a solicitor with Finers  Stephens Innocent said that Ms Booth’s determination to turn up for the appeal  with all the extra security costs that entailed after being told “no” was extraordinary.  “Most people, having been told “no” would have had the dignity not to pursue the issue and just go away”.

A  spokeswomen for Ms Booth’s office in Downing Street refused to comment on who picks up the security costs. “We never discuss security matters”, she said.

UPDATE

It has now merged, according to TIMES ONLINE that an influential figure in the decision to appoint Ms Booth was Cyrus Das, a key lawyer in the case. He was one of a select group of Commonwealth lawyers invited to a Downing Street reception last September.

The event was hosted by Cherie, both in her capacity as a human rights lawyer and as the prime ministers wife. She was photographed with Das.

Das, a former president of the Commonwealth of the Commonwealth Lawyers Association said Ms Booth was employed because of her legal expertise. But the decision to use her – and the subsequent legal challenge- will raise questions about whether her status as the prime minister’s wife helped secure the brief.

One lawyer involved in the case said:” Cherie Blair wears two hats, that of a QC and that of the prime ministers wife. I felt she was not best qualified for this case and it was a mistake to use her.”

Feedback on this story to Jock Anderson jockanderson@ihug.co.nz

Posted 19/07/2006

Law Firm’s Advert Backfires

Leading UK legal publication The Lawyer reports that Barlow Lyde & Gilbert's (BLG) commercial litigation advertising campaign has caused quite a stir. And, it emerges, it may well have backfired for the firm.

According to The Lawyer senior reporter Joanne Harris, Barclays' general counsel Mark Harding revealed that BLG would no longer be getting work from the bank after he was one of a number of in-house legal heads named in BLG's very first advert back in May.

The advert, which took up a full page in The Times, listed general counsel from a wide range of companies and told them: "If you'd like your name kept out of the legal pages, take a note of ours".

Many of the general counsel named were instantly outraged that their names had been used without permission, particularly as it later emerged that the companies listed were not in fact BLG clients and were more of a wish-list.

Apart from Barclays, apparently. The Lawyer said BLG wouldn’t comment about its relationship with Barclays, but believed that the advertising campaign raised its profile and made "some good contacts". Fair point: but BLG has proved how difficult it is to market a litigation practice.

But as The Lawyer put it: let's look on the bright side: if Barclays is no longer going to give any work to BLG, the firm becomes one of a select group able to act against banks in major litigation. So long as the adverts haven't put off too many other potential clients, that is.

Lawyer Can’t Trademark His Own Name

In a dispute between a prominent intellectual property lawyer and his former firm, a Pennsylvania federal judge refused to issue an injunction that would have forced the firm to completely eliminate all uses of the departing lawyer’s name and all mention of his court victories.

Senior US District Judge Norma Shapiro found that lawyer Kelly Tillery of Pepper Hamilton was not likely to succeed on any of the claims he alleged, the Legal Intelligencer reported.

Judge Shapiro found that Tillery’s name was not entitled to trademark protection because it had not acquired any “secondary meaning.”

Tillery was previously a partner in Leonard Tillery & Davison and then Leonard Tillery & Sciolla until April 2005.

He complained about Leonard & Sciolla’s continued use of the domain name “leonardtillery.com” and retention of email addresses ending in “@leonardtillery.com.”

He complained that search engines were still directing surfers to his former firm.

Tillery also complained his former firm was engaging in false advertising by listing on its web site cases Tillery had handled and that, Tillery claimed, no lawyer currently with the firm had worked, or would be qualified to work, on.

Interestingly, Judge Shapiro flatly rejected that claim saying there was no impropriety in the firm’s listing on its web site matter on which Tillery worked while he was a partner at Leonard Tillery & Sciolla.

The judge said the recognition of individual lawyers’ names as trademarks without a strong showing of secondary meaning could hinder the creation of new law firms and the ability of individuals to practice law in their chosen field without changing their names.

Judge Shapiro made the point that, unlike other businesses, law firms were traditionally identified by personal names and not fanciful trade names.

She said Tillery had cited no precedent granting trademark status to a lawyer’s personal name, used only in connection with his individual services, and the court could not find one.

Tillery failed to meet the test for showing his name deserved trademark protection, the judge said.

An oldie but still a goodie from IsThatLegal?

Edited Highlights From A Funny Obituary Published Somewhere In England

Patrick Pakenham, who has died aged 68, was a talented barrister and the second son of the 7^th Earl and Countess of Longford; highly intelligent, articulate and possessed of an attractive and powerful voice, Pakenham could have attained great professional heights but his boisterous nature and bouts of mental illness rendered it impossible for him to adhere to the routine required to sustain his position at the Bar, and he retired after 10 years’ practice…During his appearance before an irascible and unpopular judge in a drugs case, the evidence, a bag of cannabis, was produced. The judge, considering himself an expert on the subject, said to Pakenham, with whom he had clashed during the case: “Come on, hand the exhibit up to me quickly.” Then he proceeded to open the package. Inserting the contents in his mouth, he chewed it and announced: “Yes, yes, of course that is cannabis. Where was the substance found Mr Pakenham?” The reply came swiftly, if inaccurately: “In the defendant’s anus, My Lord.”
Source: IsThatLegal?Posted June 30, 2006.

Solicitor Smuggled Gunman’s Alibi Letter

Solicitor Maya Devani was convicted of smuggling a letter out of Belmarsh high security jail, in south London, which would have provided gunman Timothy Merchant with a false alibi, according to BBC News.

26 year old Devani, who allegedly took written instructions for an alibi and who also faces a Law Society disciplinary hearing, was convicted of perverting the course of justice and has yet to be sentenced.

Merchant was convicted of attempting to murder two men who gave evidence against his younger brother in a trial.

When Merchant realised an important piece of evidence linked him to that shooting attack recruited Devani, who claimed she did not know what was in the letter, to help him.
Posted June 30, 2006.

Feedback on these stories to jockanderson@ihug.co.nz   Posted June 30, 2006