[ql06] PROPERTY: Injunctions/Contempt
- From: "Ken Campbell" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Sun, 9 Nov 2003 07:19:40 -0500
You know, these common law courts of ours may be reluctant to use an
order of specific performance, but they sure don't mind using that other
"equitable remedies" from the old Chancellor courts -- injunctions.
As you may have read, or can read below, a high court in London, under
Mr. Justice Mackinnon, has ordered a news media publication NOT to print
a particular story. And then another newspaper was ordered not to print
a story about the other newspaper not being able to print a story.
These "courts of equity" keep coming up in our studies, but it was never
satisfactorily explained to me.
Sure, in CONTRACT, we heard many, many times that "courts don't like to
use specific performance because it's too much like slavery." (Poor
little Peevyhouses...) But neither Sara nor the book explained it very
well.
I think I finally got the big picture from PROPERTY and conversation
with Bill Flanagan. And that's why this post is SLUGGED as PROPERTY,
when it's talking about injunctions, contempt and Prince Charles' latest
media soap opera in Dingland.
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These kinds of U.K. media injunctions don't work in today's world. The
banned U.K. story has already appeared in Italy's Corriere della Sera
and France's Libération. Mackinnon J. has merely helped distribute the
story to the rest of the planet.
In 1994, I think it was Justice Lesage (as Adam reminded me the other
day) who ordered Ontario news media not to report on Karla Homolka's
plea in her trial. (It was guilty, btw.)
Gee whiz, that was effective an effective ban. Let's see, Karla's trial
took half-a-day, I wonder what she pled? If she pled not guilty, that
was certainly a speedy trial and could be used to silence those critics
who say the wheels of justice turn too slow.
All Lesage J. ended up doing was making everyone want to get the banned
Homolka news stories from the U.S. -- and the Internet made is easy to
find them. I covered the story back then. There were infamous copies of
U.S. news stories flying around. The big question was whether email
possession of the story (by an Ontarian) was contempt of Lesage's court.
(One Torontonian used a mail server in Texas to distribute his rumors
about the Homolka trial and deal; at that time, it was confusing to
police and lawyers about exactly where he would "be" when "publishing"
Homolka's plea -- was he publishing in Toronto or Texas?)
We have the same situation with this story. Hundreds of curious Brits
have asked other countries for information on the story that was
suppressed, the royal servant who suppressed it, and the royal person
mentioned in the story.
You can get all that juicy stuff below.
Dawn earlier said she was glad there wasn't some undue interest in Kobe
Bryant and typical media sensationalism. I guess I'm breaking that rule,
sorry, Dawn. :)
Five stories from England's best paper, The Guardian. Plus, lastly, an
anonymous post about the sordid details of those kOoKy RoYaLs.
* STORY 1: Injunction halts newspaper story...
Monday November 3, 2003
* STORY 2: Former royal servant wins court ban on Guardian
Tuesday November 4, 2003
* STORY 3: Guardian set to challenge injunction
Tuesday November 4, 2003
* STORY 4: Royal secrets: The curious case of Mr X
Wednesday November 5, 2003
* STORY 5: Guardian royal case to begin in private
Wednesday November 5, 2003
* STORY 6: The "raw rumor" about Prince Charles
(Anonymous post)
I suppose it is somewhat ironically fitting to be talking below about
the "conscience of the King" while relating it to the endless English
hand-wringing about the "Man Who Will Not Be King," Prince Charles.
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The main thing this post is about... is the next sections of PROPERTY,
where Bill starts explaining the origins of the Courts of Equity, and
their offspring, injunctions (which come in two kinds, "do this" and
"don't do that) and contempt.
Personally, I get a better grasp on law when I understand the political
context in which things developed. Understanding this history of the
Chancellor and contempt, the battle between King and landholders, and
the resultant development of Parliament, really clarified a lot of stuff
for me.
Here's my quick summation of that reading/context:
1. Quia Emptores (1290, Edward I) decreed the end to new
subinfeudation. By the 1500s, there were almost no feudal
holdings except directly from the Crown. The feudal pyramid was
flattened.
2. This created a flat, "democratic" layer of landholders directly
under the Crown. Democratic in that landholders were "equal"
under the King. They all shared the same interests in their land
and had reason to develop common cause.
3. The biggest common cause they developed was hatred of the feudal
"incidents of tenure" -- relief, wardship, all that stuff that
was a powerful Crown form of taxation.
4. Naturally, these landholders looked for ways around the taxes.
Through "creative accounting" they came up with "uses."
5. Uses meant I give my land to Jereme, the full legal title, and he
promises to keep it and give it to my daughter Morgan when she
reaches, say, 21. That way Morgan doesn't have to pay wardship,
if I die while kicking the shit out of the French on the
continent.
6. But all *I* really have is Jereme's promise. A non-legal promise.
It's all about "trust."
Let's say Jereme knows I'm off in France, getting slaughtered by
this rookie whiz kid Jeanne d'Arc. He hasn't heard from me in
years. He says to his wife, "Well, I have title (seisen), so
tough shit for Morgan." And he and his wife celebrate their
evilness with evil sex on the very land in question.
Morgan comes of age, she goes to a common law court to get her
land, and the common law court will say: "Ken gave Jereme the
land. Any promises are non-legal and we aren't interested in them.
Get thee to a nunnery, girl."
7. So that was the PROBLEM. And it was wide spread, because by 1400,
almost all the land in England was held in Jereme-arrangements.
8. SOLUTION: People started going to the King to complain about the
Jeremes. There was no appellate court, and even if there was one,
the common law didn't recognize promises. The King was "the
fountain of justice." The King was divinely placed, after all, a
moral symbol.
In the 1400s, the Chancellor (Court of Equity) started protecting
the Morgan's from the Jereme's.
9. The Chancellor might listen to Morgan's sad story, say a little
prayer for Ken's raven-picked skeleton in a French field, then
order Jereme to appear before the Chancellor. (Under a subpoena,
Latin for "under penalty", which Jereme would suffer if he didn't
show).
Jereme could testify, unlike common law courts. The Chancellor
would then scold Jereme for his evilness and not keeping his
promise. It was unconscionable. It was breaking of "trust."
10. The Chancellor would order Jereme to perform his promise under
the dictates of good conscience.
This injunction sat "on the person" -- not on their legal rights
(talk about hair splitting in the days of theocratic dominance).
The King had power upon the "hearts and minds" of his people
apart from the legal system.
11. If Jereme refused to act in a proper manner, as ordered by the
Chancellor, the Chancellor would hold him in contempt -- "you
make me want to puke, you scurvy dog."
And Jereme would get thrown into a medieval dungeon until he
finally realized the Chancellor had a good point.
Thus was born the now common equitable remedies -- which were kept by
the common law courts when they merged with the equitable courts in the
1800s.
Ken.
--
All the donuts have names that sound like prostitutes.
-- Tom Waits
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STORY 1
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Injunction halts newspaper story on claims by former royal servant
Tania Branigan and Matt Wells
Monday November 3, 2003
The Guardian
The Mail on Sunday is fighting to publish a story involving the royal
family, following what is believed to be the first injunction ever taken
against a national newspaper by a former royal servant.
The material, which was apparently due to appear in yesterday's paper,
had to be withheld after the man obtained a court order on Saturday
afternoon.
The paper alleged that a senior royal had also written to it that day,
demanding that the story should not appear.
A royal spokeswoman yesterday refused to confirm or deny that claim and
stressed the injunction had not come from a member of the royal family.
She declined to comment further.
A Mail on Sunday spokesman said yesterday: "This case involves issues
concerning the royal family about which the public have an
unquestionable right to know.
"We are working with our lawyers on a number of important points and
will be returning to the high court to get this injunction lifted. It is
deeply disturbing that the courts are being used to suppress information
and prevent proper public debate."
According to its front-page story, the newspaper's proposed article was
based on in-depth interviews with another former member of the royal
staff, who had sworn an affidavit to support the story.
But on Saturday morning, the Mail on Sunday was told it faced a possible
injunction. Following a three-hour hearing at the high court in London,
Mr Justice Mackinnon made an order preventing publication of any details
of the story. On Friday, aides called newspaper editors to find out how
they could be contacted at the weekend, an indication of tension within
the royal household.
Yesterday's developments come at the end of a fraught fortnight for the
royal family. It is still recovering from the tabloid stories unleashed
by Paul Burrell's book A Royal Duty, his account of life as a servant of
Diana, Princess of Wales. The family's problems were compounded when
Mark Bolland, the Prince of Wales's former deputy private secretary,
told the Guardian the heir to the throne was indirectly responsible for
Mr Burrell's revelations. Mr Bolland said Prince Charles should have
done more to stop the butler's prosecution for alleged theft of Diana's
possessions.
Mr Burrell was acquitted when his Old Bailey trial collapsed. Yesterday
the Sunday Mirror published an interview with the brother of former
royal valet George Smith, which resurrected claims that the servant had
found another staff member in bed with a senior member of the royal
family. The story first surfaced during the police investigation into Mr
Burrell, when it emerged the princess had taped an interview with Mr
Smith, in which he apparently made the allegation and also claimed to
have been raped by a palace servant. The tape has since disappeared.
An inquiry last year by Sir Michael Peat, Prince Charles's secretary,
concluded Mr Smith was an unreliable witness, but that his allegations
of rape should have been investigated more thoroughly at the time.
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STORY 2
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Former royal servant wins court ban on Guardian
David Leigh
Tuesday November 4, 2003
The Guardian
Lawyers acting for a former royal servant last night obtained their
second injunction against the press in three days when they were granted
a court order preventing the Guardian from revealing his identity. The
granting of two such injunctions in such a short time represents a
significant escalation in royal-related litigation. The Guardian had
intended to disclose this morning the name of the former royal servant
who, over the weekend, persuaded Mr Justice McKinnon to block an article
concerning him in a Sunday newspaper.
That first injunction was granted at the weekend against the Mail on
Sunday, which proposed to run a 3,000 word interview with another
ex-royal servant "backed up by a sworn affidavit". The paper was
prevented from publishing after it was alleged the piece was libellous.
It is very unusual for the courts to grant pre-publication injunctions
on grounds of libel. They are regarded as a form of censorship, and
normally, if a newspaper claims it is prepared to justify the truth of
what it says in court, they are allowed to go ahead at their own risk.
The Mail on Sunday says that the move to stop publication was
accompanied by "a written demand from a senior royal that there should
be no publication of the story". Lawyers at Kingsley Napley,
representing the royal aide in question, refused to disclose the exact
terms of the injunction.
By last night it had become clear however, that the original court order
did not prevent the naming of its beneficiary.
The position today is that while the nature of the allegations is widely
known within the media, it cannot be openly ventilated and its truth
established or disproved.
· Lawyers for a former voice coach to Princess Diana yesterday
threatened court action by tomorrow if police continued to hold up to 20
intimate video tapes of the Princess which he claims belong to him.
Marcus Rutherford, a solicitor for Peter Settelen, who counselled and
trained the Princess when she was seeking to make an independent life,
said that Scotland Yard had been sitting on the tapes for more than a
year. They were found during raids on Paul Burrell's house, and have
been kept by police since the collapse of Mr Burrell's trial for theft.
They regarded as too sensitive to admit into evidence.
Princess Diana's family, as executors of her estate, are seeking to
prevent the tapes being returned to Mr Settelen. They are believed to
contain unwelcome reflections by the princess on her emotional problems
and relationship with Prince Charles.
----------------------------------------------------------------------
STORY 3
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Guardian set to challenge injunction
Ciar Byrne
Tuesday November 4, 2003
The Guardian newspaper's challenge to a court injunction banning it from
naming a former royal servant will be heard at London's high court at
2pm tomorrow.
Lawyers acting for the former royal servant were granted an injunction
on Monday preventing the Guardian from revealing his identity.
It was the second injunction granted in three days - the first
injunction was granted against the Mail on Sunday, which proposed to run
a 3,000 word interview with another royal servant.
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STORY 4
----------------------------------------------------------------------
Royal secrets
The curious case of Mr X
Leader
Wednesday November 5, 2003
The Guardian
Last Saturday an anonymous man - let us call him Mr X - succeeded in
obtaining an injunction against the Mail on Sunday, preventing it from
running a story about something to do with the royal family. Mr X, who
is reported to be a former royal servant, apparently considered the
piece to be libellous. It is reported that a senior member of the royal
family also issued a "written demand" that the story should not appear.
We have been able, through independent inquiries, to ascertain the
identity of Mr X. But we are prevented by a further injunction - granted
without hearing any representations from this newspaper - from
publishing his name. Nor is anyone allowed to see the terms of the
previous injunction. Mr X has thus created a situation where no
journalist in this country can safely write a story about him.
If the legal action had been for a breach of confidence or infringement
of privacy, we might (it is difficult to say in the absence of all the
facts) have some sympathy for his predicament. But Mr X has chosen to
use the law of libel, presumably because he asserts that the allegations
are false. Prior restraint in libel cases is extremely rare - and quite
rightly so. It is a generally accepted principle that, so long as a
newspaper is prepared to justify the truth of what it says in court, it
is allowed to publish and accept the consequences. Among the many things
we do not know about this curious case is whether the newspaper
indicated that it would plead justification. Nor do we know whether Mr
X's legal fees are being paid by any member of the royal family.
This is all, frankly, a bit of a muddle. Except in rare cases - privacy
or blackmail, for example - the identity of people seeking injunctions
is a matter of public record. It is extraordinary for such a determined
veil of secrecy to be pulled over proceedings. It would be dismaying if
the case were attracting special treatment simply because of a
connection with the royal family (though we have no evidence that this
is the case.) The sooner we can at least name Mr X, the better.
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STORY 5
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Guardian royal case to begin in private
Ciar Byrne
The Guardian
Wednesday November 5, 2003
Lawyers for the former royal servant whose identity the Guardian wants
to reveal have put in a successful request for their case to be heard in
private, at least in the initial stages.
The Guardian went to the high court today to overturn an injunction
obtained by the former servant on Monday, which grants him anonymity in
his proceedings against another newspaper.
But the press was asked to leave the court after Desmond Browne QC, on
behalf of the former servant, argued that if the hearing were held in
public someone might inadvertently let slip an important piece of
information.
The judge, Mr Justice Tugendhat, an advocate of open justice, said
freedom of expression needed to be taken into consideration.
However, he agreed Mr Browne could make an application to continue an
injunction against the Guardian in private.
"This is an application for an injunction to be continued against a
newspaper. It obviously engages the right of freedom of expression and
it appears from the attendance in court that it's attracting a certain
amount of public interest," Mr Tugendhat said.
He added he was reluctant to order that the whole hearing should be
conducted in private.
"If the court is going to restrain a publication, the reasons why it
does so are a matter of law, themselves a matter of public interest,"
the judge said.
Mr Browne said: "The problem is, leaving aside matters which, were they
to be mentioned in open court would defeat the whole object of the
exercise, there's also the risk that one may let slip something.
"It's an intimidating prospect to have to be always thinking about what
one is saying with an eye to what is appearing in the media."
Mr Browne referred to the Daily Star, which announced to its readers
today that the name of the royal servant would be revealed before the
day was out.
"I entirely accept what your lordship says about this engaging freedom
of expression," Mr Browne said.
However, he added there also existed a right to reputation and to a
private and family life.
The original injunction, preventing the Guardian from revealing the name
of a former royal servant who had taken out an injunction against the
Mail on Sunday, was granted at around 7.10pm on Monday by Mr Justice
Henriques.
The Guardian was not seeking to report the contents of the Mail on
Sunday's report but only to disclose who had sought to prevent
publication.
The Mail on Sunday ran a front-page story last week saying a former
palace servant had prevented it from publishing lengthy interviews with
a second former royal servant, whose story was supported by a sworn
affidavit.
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STORY 6
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Latest news on 'royal' press-gagging efforts, UK
Posted By: Banana
Date: Wednesday, 5 November 2003, 1:26 p.m.
'Prince' Charles's 'aide' Michael F*wcett was accused of raping 'royal'
servant George Smith. Mr Smith was hospitalised for some time and was
then paid money by 'Prince' Charles. Fawcett is also said to be a
boyfriend of 'Prince' Charles. These pieces of information have been
well-known in many circles for some time, but are being suppressed in
the UK press. Recently, however, George Smith gave an interview to the
'Mail on Sunday'. The newspaper then had an injunction slapped on it
last Saturday, on F*wcett's application. The 'Guardian' then wanted to
report the fact that F*wcett had successfully applied for an injunction
against the 'Mail on Sunday', but they then received an injunction
against *them*, stopping them from doing so.
This story is about to break in a big way.
As usual in the UK, different rules apply when the 'royal' family is
involved.
B
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