A Life Without Brian

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Most people don’t really care about the Inquiry into Press Standards being conducted by Lord Justice Brian Leveson. They cared very much, and rightly so, about “journalists” at the now defunct News of the World accessing Milly Dowler’s voicemail account after she had been abducted and (we now know) killed. They cared rather less about similar hacking into the voicemails of celebrities and politicians. They care even less about how close senior politicians from the Labour and Conservative parties were to journalists. At the bottom of the pile of “whatever” comes the public’s interest in what did or did not happen in the course of the culture secretary’s assessment of News International’s bid to take over BSkyB.

I’m not saying that’s right, but rather, that that is what the reality is for the vast majority of people. Even as someone who is interested in politics, interested enough in journalism to have blogged twice about the nugatory Harigate ,and professionally interested in merger control, I can see that this is not something that is engaging the wider public. Continue reading

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What the Hell is going on? Don’t ask your lawyer

After the telegenic distraction of the riots, hackgate rumbles back into life. The DCMS Select Committee has published further correspondence provided to it following the appearances to give evidence of the Murdochs and Rebekah Brooks http://bit.ly/n2CvjI . At the same time, the “smoking gun” of a letter sent by Clive Goodman, the News of the World’s royal correspondent who was imprisoned for phone hacking has surfaced. In this letter, sent to News International as part of Goodman’s attempt to appeal his dismissal for that conviction.

The letter alleges that it was wrong to have dismissed Goodman on the basis of gross misconduct for hacking when it was widely known, discussed and approved of by NotW management including the then editor, Andy Coulson. The law firm Harbottle & Lewis were instructed by NI to advise on the prospects of Goodman’s appeal, were sent a number of emails by NI to review to prepare this advice and advised that there was no evidence to support the allegation that Goodman’s activities were known of by Coulson or his deputy. The Murdochs relied heavily on this advice when giving evidence to the select committee to Harbottle & Lewis’ irritation. This irritation was at least in part due to their inability to respond because doing so may have led to them being seen to have breached their duty of confidence to their client, NI. Since then, NI has agreed to waive the privilege in the legal advice to the extent that it is necessary to enable Harbottle & Lewis to assist in the Police and Parliamentary investigations.

Harbottle & Lewis’ response to the allegations is included in the latest set of documents published by the Select Committee http://bit.ly/nReyCo (this includes at pages B6 and B7, Goodman’s letter). While, unsurprisingly they have sought to (properly) place in context the advice they gave and the limited nature of the advice and instructions, the response is interesting because of what is unsaid. The media are seizing upon Goodman’s letter as being a smoking gun that blows away the defence raised by the Murdochs and Rebekah Brooks that they did not know about hacking and had been advised that it was not more widespread than Goodman and Geoff Mulcaire, the investigator he used (who was also imprisoned for his part in the activities).

However, although it is clear that Harbottle & Lewis were not asked to advise generally on whether there had been criminal activities undertaken by or with the agreement of NotW, they were asked specifically about the allegations raised by Goodman. Goodman also wrote a further letter requesting the disclosure of various items of correspondence and it looks from Harbottle & Lewis’ submission that the correspondence sought by Goodman was what was provided to it for review. This is consistent with the limited instructions (to advise on the Goodman claim). So, even leaving to one side whether it was right for NI to have appeared to rely on the advice from Harbottle & Lewis more generally, one thing that surprisingly does not seem to be disputed by the lawyers is that they concluded that Goodman’s claims, as they were to be pursued by him and on the basis of documents he knew to be in existence, were not supported by the evidence. That does not mean that there was not other evidence to support it, but that this other evidence was not known about by Goodman when writing his apparently damning letter.

The evidence that Goodman thought would support his claim for unfair dismissal did not do so and this is what Harbottle & Lewis have confirmed. What if the file of documents sent for Harbottle & Lewis’ review was incomplete? That certainly is possible on the basis of allegations that NI might have destroyed old records (not necessarily for malign purposes, document retention policies in large businesses are actually Newspeak because they are more about the normal practice for destroying documents). Harbottle & Lewis also note in their submission to the Select Committee (at para 5(l)) that some of the emails they did see were “only in cut off form”.

However, this would have required NI to be seeking advice that it knew to be limited and irrelevant to the limited purpose it was provided for on the basis of an intention to use it for a different purpose at an undefined later date. I don’t like conspiracy theories and think it more likely that NI did send Harbottle & Lewis precisely those documents which Goodman referred to so as to get good advice on the prospects of the litigation then being threatened. As they were documents which would have been likely to have been ordered to have been disclosed in the event of Goodman pursuing his employment claim, it does not really make a lot of sense to have withheld them from Harbottle & Lewis at the time. If NI had wanted a “certificate” to the effect of having done nothing wrong more generally, there are other ways in which it could have achieved this which would have been less convoluted and less susceptible to being found out.

Of course, this is nowhere near the end of the matter, but it does mean that the Goodman letter is incendiary but of limited probative value in itself. It remains the self-serving assertions of a convicted hacker unsupported by the documentary evidence it relied upon. Other documents and the truthfulness and believability of the evidence given by the participants in the events will be needed and without them, there is nothing very much.

UPDATE

I had an interesting exchange with Louise Mensch MP, one of the members of the Select Committee following first publishing this blog post. A point which she picked up on and thought to be particularly important was the series of exchanges between Harbottle & Lewis and NI on finalising the terms of the advice that was being given.

A first observation is that there is nothing intrinsically wrong or unusual about a client and their lawyers tweaking the wording of draft advice to come to a mutually acceptable form of words in the final, formal advice. Legal documents are nuanced things and both lawyers and their clients will perceive different nuances. Ultimately, lawyers will not agree to provide advice in terms which they do not believe to be defensible so the final version of the advice is reliable even if not the lawyers’ preferred approach.

Louise Mensch’s interpretation of the documents was that NI wanted Harbottle & Lewis to say that there was “no evidence” linking others to Goodman’s acts and that Harbottle & Lewis rejected this wording in terms and insisted on saying that there was “no reasonable evidence”. She said that this was important because “no reasonable evidence” implied that the lawyers had found “some” evidence and that what she interpreted as NI’s attempt to get the lawyers to say “no evidence” was itself evidence of NI trying to cover up the existence of “some” evidence. This does not make a huge amount of sense to me as evidence which was not sufficient to be “reasonable” was unlikely to have been good support for Goodman’s allegations. Be that as it may, the bigger issue I have with her approach is that it does not seem to be supported by Harbottle & Lewis’ account of the drafting process.

It is true that the initial draft of the advice stated:

 “we did not find any evidence which proved that [REDACTED] knew that Clive Goodman, Glen Mulcaire or any other journalists at the News of the World were engaged in illegal activities prior to their arrest.” (para 5(n))

However, this draft was the draft proposed by Harbottle & Lewis, not wording suggested by NI. In fact, NI’s initial instructions to Harbottle & Lewis stated that the internal review by NI’s heads of legal and HR “found nothing that amounted to reasonable evidence [of the Goodman allegations]” (para 5(h)(iii) and instructions email from NI at Appendix B page B1). NI did suggest changing “any evidence” in the Harbottle & Lewis first draft to “anything which appeared to us [ie Harbottle & Lewis] to prove” (para 5(o)) but this was not accepted and the final wording ended up as:

“did not find anything in those e-mails which appeared to us to be reasonable evidence that Clive Goodman’s illegal actions were known about and supported by both or either of Andy Coulson, the editor, and Neil Wallis, the deputy editor, and/or that Ian Edmondson, the news editor, and others were carrying out similar illegal procedures”

There is nothing in Harbottle & Lewis’ submission which suggests that there was a particular pressure by NI to say there was “no evidence” or that there was a fight by Harbottle & Lewis to water this down to “no reasonable evidence”. In fact, the record from Harbottle & Lewis suggests that this was not really debated – “no reasonable evidence” was NI’s position when seeking the advice, the first draft of that advice strengthened this to “no evidence” but the final agreed version went back to NI’s original formulation. NI’s suggestion of a change from “no evidence” to “anything which appeared to [Harbottle & Lewis]” can, if anything be seen as watering down the initial Harbottle & Lewis draft.

None of this is to say that there was absolutely no evidence anywhere of wider knowledge by NI or NotW management of illegal hacking. There may well have been. However, it is semantic pseudo-legal quibbling to focus on the changes in the draft advice to provide a eureka moment to say that, in the particular context of the seeking of limited advice from Harbottle & Lewis, there is a substantial admission of the truth of Goodman’s allegations.

Stigmata Martyrs – Can redundant NotW workers pour salt on Murdoch’s wounds?

It was reported today that staff made redundant when News International shut down the News of the World are considering launching a class action against their former employers for compensation for the stigma of having been employed by the now defunct title – http://bit.ly/qqvav9 . This is based upon the House of Lords’ decision in the case of two former BCCI employees who sought similar damages in the aftermath of the collapse of
that dishonest and corrupt bank (http://bit.ly/rub7eC ).

However, unlike in the BCCI case, it does not look like this is going to be an easy case for former NotW employees to win. It is worth looking at a couple of key quotes from the two members of the Court in the BCCI case to see why.

Lord Nicholls of Birkenhead said:

“Claims of handicap in the labour market, …may give rise to lengthy and costly investigations and, ultimately, litigation…

…one of the assumed facts in the present case is that the employer was conducting a dishonest and corrupt business. I would like to think this will rarely happen in practice… there are many circumstances in which an employee’s reputation may suffer from his having been associated with an unsuccessful business, or an unsuccessful department within a business. In the ordinary way this will not found a claim of the nature made in the present case, even if the business or department was run with gross incompetence. A key feature in the present case is the assumed fact that the business was dishonest or corrupt. Finally, although the implied term that the business will not be conducted dishonestly is a term which avails all employees, proof of consequential handicap in the labour market may well be much more difficult for some classes of employees than others. An employer seeking to employ a messenger, for instance, might be wholly unconcerned by an applicant’s former employment in a dishonest business, whereas he might take a different view if he were seeking a senior executive.” (my highlighting)

The Murdochs have accepted that the NotW did unacceptable things and the decision to close the title was clearly taken because of a belief that this had irretrievably tarnished the reputation of the paper. However, this is some way off from an admission that the business was dishonest or corrupt. It may be that the Leveson inquiry will ultimately come to this conclusion, but it is more likely that blame for particular criminal acts will be limited to specific individuals (albeit potentially rather more of these than originally apparent) and the failures within the business being attributed more to failures of governance rather than intentional executive dishonesty and corruption. At the very least, unlike BCCI, it is pretty certain that News International would contest any allegation that the whole NotW business was dishonest and corrupt, potentially by saying that were it to have been so, the executives and senior journalists in the group being represented in the reported class action would have been likely to be complicit in that.

The delay that waiting for the Leveson inquiry to run its course will involve also will have an impact. If in fact some or many of the members of the class action manage to secure alternative comparable employment in the interim, factually it will be much harder for them to demonstrate that they have been stigmatised by their association with the NotW. If the Leveson inquiry finds more broad-based criminality amongst journalists in a range of publications it will be exceptionally hard to support that there is any specific stigma from being employed blamelessly by the NotW. Why would there be any stigma in having worked for the NotW when approaching the Mirror for a job if it is found to have engaged in similar practices while Piers Morgan was editor, as is currently being alleged? The report by the Information Commissioner’s Office a few years ago implicated most of the major newpaper groups in the illegal procurement of personal information so it is unlikely that the NotW will stand out from its peers in the same way that BCCI did.

In any case, the facts that would need to be established are difficult to prove. In the BCCI case many of these facts had been assumed or admitted to be true. Again, it is not likely that News International will be admitting anything very much beyond what is found by the Leveson inquiry.

Lord Steyn set out the difficulties of proof in bringing such cases thus:

“the implied mutual obligation of trust and confidence applies only where there is “no reasonable and proper cause” for the employers conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligation. Moreover, even if the employee can establish a breach of this obligation, it does not follow that he will be able to recover damages for injury to his employment prospects. The Law Commission has pointed out that loss of reputation is inherently difficult to prove: Law Commission, Consulation Paper No. 132 on Aggravated, Exemplary and Restitutionary Damages, p. 22, para 2.15. It is, therefore, improbable that many employees would be able to prove “stigma compensation”. The limiting principles of causation, remoteness and mitigation present formidable practical obstacles to such claims succeeding. But difficulties of proof cannot alter the legal principles which permit, in appropriate cases, such claims for financial loss caused by breach of contract being put forward for consideration. “  (my highlighting)

In practice it is likely that a number of the redundant NotW staff will immediately move to one of the jobs set out in the Guardian article (that some of the jobs on the list are in Siberia or are not identical to the roles made redundant is not unusual for a large multinational). Many others may find jobs rather than waiting around for protracted litigation to end. Most of them and the rest will negotiate settlements. Ultimately, the greatest stigma will probably attach to any rump who remain to fight out the battle to the bitter end and at least part of that stigma will come from continuing to be identified with the whole sorry affair by still being in litigation years after everyone else has moved on. Who is going to volunteer to see out martyrdom to the end?