Thus (probably) spoke a nineteenth century Irish judge, Sir James Mathew (1830-1908) (pictured left). The Ritz is now owned by David and Frederick Barclay, and they are at present locked in what the media are describing as “bitter” legal proceedings (in tabloid-speak, is there any other kind of legal dispute?) being taken against them in London by Irish businessman and property developer Paddy McKillen. McKillen and the Barclays own stakes in a high profile hotel group; and in these proceedings, McKillen alleges that the Barclays have been attempting to seize control of the group by unlawful means. He is no stranger to high-stakes litigation, having successfully thwarted the National Asset Management Agency in the Irish courts in Dellway Investments v NAMA [2011] IESC 4 (3 February 2011).

In the London proceedings, much dirty linen had already been laundered in public, and McKillen balked at the prospect of having to wash more, seeking an order of the court to keep sensitive information about his personal business financial affairs away from the prying eyes, not only of the media and the public, but also of the defendants! Unsurprisingly, the application failed (Irish Independent | Irish Times here and here | PA | RTÉ News). In a judgment delivered last week, Richards J held that the basic principle of open justice required the whole of the trial to be heard in public, and that the Mr McKillen’s evidence came nowhere near to overcoming that basic principle.

The case is McKillen v Misland (Cyprus) Investments Limited [2012] EWHC 1158 (Ch) (26 April 2012) (pdf) [I am grateful to Mark Hennessy for providing me with a copy of the approved judgment; it should appear on BAILII - probably at this link - in due course], and it is a very important reaffirmation of the principle of open justice. Richards J had imposed a confidentiality regime for the purposes of pre-trial steps, and the applicant effectively sought to continue that regime in respect of his personal finances. It would have meant that documents and evidence given in relation to the relevant issues would not have been available to the defendants but only to their solicitors and counsel, and that part of the trial dealing with those issues would have been held in private. Richards J held that this would therefore have involved a significant departures from two fundamental common law principles: first, the principle of open justice requires that trials are conducted in public; and, second, the principle of natural justice includes the right of a party to know the case against him and the evidence on which it is based (relying on Al Rawi v The Security Service [2011] UKSC 34 (13 July 2011) [10]-[13] (Lord Dyson); and later, in respect of open justice, to Scott v Scott [1913] AC 417, [1913] UKHL 2 (5 May 1913); R v Sussex Justices, ex p McCarthy [1924] 1 KB 256; Attorney General v Leveller Magazine [1979] AC 440; R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218; [2010] EWCA Civ 65 (10 February 2010); R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012), blogged here).

Richards J emphasised that the open justice principle is not a mere procedure rule, but a fundamental common law principle; any departure from the principle is permitted only if it is necessary in the interests of justice; and the the party seeking to establish that necessity must do so by clear and cogent evidence which will be subjected to careful scrutiny by the court. Furthermore, he reiterated that sitting in private is the last resort, and that, where the court is satisfied that some inroad into the principle of open justice is required, it will strive to keep it to the minimum and will sit in private only if any other course is effectively unworkable (see Ambrosiadou v Coward [2011] EWCA Civ 409 (12 April 2011); JIH v News Group Newspapers [2011] EWCA Civ 42 (31 January 2011)). He concluded that the balance came down clearly in favour of the whole trial being conducted in public, as the nature of the evidence which the applicant sought to be heard in private, came nowhere near overcoming the basic requirements for open justice.

This common law approach is very similar to that being taken in other jurisdictions where the principle of open justice has constitutional foundations. For example, in Canada, Reuben Zaramian on TheCourt.ca explains that the Supreme Court:

has created ([1994] 3 SCR 835 at p 891) and fine-tuned (2001 SCC 76, [2001] 3 SCR 442 at para 32) what is now known as the Dagenais/Mentuck test to determine whether a publication ban should be ordered:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

As a consequence, just as Richards J did in McKillen, the Canadian courts have emphasised the need for a solid evidentiary basis to support any sealing order or publication ban. Irish Courts are heading in the Dagenais/Mentuck direction: any publication ban, as a restriction upon the constitutional principle of open justice, must be necessary and proper to do justice as between the parties, and there is a heavy onus of proof to establish such necessity. As I have argued in an earlier post, a constitutional basis for the open justice principle is potentially sounder than a common law basis, because the latter must cede to the plain words of a statute, whereas the former can provide either a greater constraint upon the interpretation of the statute or even a basis for striking it down. In McKillen, the applicant took his proceedings pursuant to the “unfair prejudice” provisions of section 994 of the Companies Act 2006 (the successor to the “oppression” provisions in section 210 of the Companies Act, 1948, on which the “oppression” provisions of section 205 of Ireland’s Companies Act, 1963 (also here) and of Head 72 of the Company Law Review Group’s General Scheme of a Companies Bill are based). Section 205(7) of the Companies Act, 1963 provides

If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera.

Because the open justice principle has a constitutional basis in Ireland, the Supreme Court has emphasised that this provision has to be given a very narrow compass (In re R [1989] IR 126; Irish Press v Ingersoll [1994] 1 IR 176, [1993] ILRM 747). In those cases, as with Richards J in McKillen and the Supreme Court of Canada in Dagenais and Mentuck, the Irish Supreme Court emphasised that any restriction upon the constitutional principle of open justice, must be necessary and proper to do justice as between the parties, and that there is a heavy onus of proof to establish such necessity.

Since the application to have part of the case heard in private failed, the case has continued in public. As the owners of the Ritz Hotel have demonstrated, as the defendants in a dispute over the ownership of some of London’s other luxury hotels, in England, justice is indeed open to all.

The Library of Trinity College Dublin dates back to the establishment of the College in 1592, and it is now the largest research library in Ireland. It was endowed with the privilege of legal deposit by the Copyright Act, 1801 and continues to receive copies of material published in the United Kingdom and Ireland, pursuant respectively to the Legal Deposit Libraries Act, 2003 and section 198 of the Copyright and Related Rights Act, 2000 (also here). The Department of Early Printed Books and Special Collections in the Library, located in the East Pavilion of the Old Library, is responsible for some of the oldest and most valuable books in Ireland. The Department of Early Printed Books has just established a most wonderful blog about its work, entitled Tales of Mystery and Pagination. They explain the title as follows:

In a effort to gain a loyal fan-base for our blog we have been inspired by the ever popular Harry Clarke and his contributions to the 1919 edition of Edgar Allan Poe’s Tales of mystery and imagination. Not content with behaving like a magpie for the blog’s title we have used three examples of Clarke’s work to help illustrate what we hope to be a lively and interesting site for anyone interested in books and libraries. …

The image above is the banner across the top of the Tales of Mystery and Pagination blog, and the Harry Clarke illustrations are the first, third and fifth panels – the second is an image of a spiral staircase in the Old Library and and the fourth is an image of early books in the Old Library. The posts so far cover a wide range topics, including:

• a book celebrating the tercentenary of the Old Library;
• an exhibition of Joyceana for the ‘Dublin: One City, One Book’ event;
• the centenary of the death of Bram Stoker, Trinity student between 1864 and 1870, and author of Dracula (1897);
• ‘A Spoonful of Flummery’ from the Pollard Collection of Children’s Books; and
• a workshop on Early Italian Printings.

It is a sumptuously informative blog: I’d be a regular reader for the content alone, but the images are gorgeous too. Bring on those tales of mystery and pagination – I cannot wait!

The Irish Association of Law Teachers (IALT) Spring Seminar will take place on Thursday 26 April 2012 next at 6.30pm in the IIIS Seminar Room, Room C6.002, 6th Floor, Arts Building, Trinity College Dublin (map here). Professor William Binchy, Regius Professor of Laws, Trinity College and Professor David Gwynn Morgan, Professor Emeritus of Law, UCC will discuss

Law Reform and Social Transition.

A reception will follow and all are welcome; if you are interested in attending, please email the IALT in advance.

In related news, nominations for the 2012 Kevin Boyle Book Prize for Outstanding Legal Scholarship are now open and will close on 30 April 2012. This prize is awarded to a member of the IALT who has published a book in the twenty four months preceding the closing date that is deemed to have made an outstanding contribution to the understanding of law. The prize will be awarded at the IALT annual conference in Dublin in November.

I’ve recently had the great good fortune to see The Muppets (2011) (imdb | official site | wikipedia). Like the recent classic movie Shrek Forever After, it is very much a movie about contract law: indeed, both movies turn on cultural assumptions about the binding nature and literal enforcement of written contracts.

Warning: plot spoilers At the end of The Muppet Movie (1979) (imdb | wikipedia), the Muppets are hired by studio executive Lew Lord (played – in a splendid cigar-chomping movie-stealing cameo – by Orson Welles) under “the standard rich-and-famous contract” (pictured above left). It has the generally assumed form of contracts: it is long; indeed, it is vveerry long – it contains a multitude of clauses, and those terms are the heart of the new movie: The Muppets. Nancy Kim on Contracts Prof Blog mentions a few of the issues:

… the star of the new Muppets movie is a long, scrolled, fine print contract signed by none other than Kermit the Frog. The entire plot hinges on … a condition in the contract … A real live condition – but is it a condition precedent or condition subsequent? In addition, there are issues of nondisclosure (there’s oil under the theatre, but the evil Tex Richman isn’t telling). Is there a duty to disclose? When did Tex learn about the oil – at the time the contract was formed? Does it matter? Was Kermit tricked? Is the contract unconscionable? And finally, there’s the interpretation issue — the “theatre” is also called a “studio.” Is it the same building? Is there possibly a misunderstanding here?

In a very entertaining post about the movie and the legal issues it contains, Ryan Davidson on Law and the Multiverse points out that lots of commercial leases have a provision which will permit the tenant to purchase the property after a time, so the basic buy-out clause is not so unusual. But he has fun with the provision that the Muppets would lose the rights to their names if they lost the studio. No wonder then, that Adam Bonin on a list of things thrown five minutes ago refers to the “contract upon which Kermit failed to perform due diligence, highlighting the importance of hiring top-notch attorneys to protect one’s intellectual property”. And finally, my favourite line in the movie:

We all agreed, celebrities aren’t people.

Update: Disney announce new Muppet movie But will it feature any contracts, that’s what I want to know!

Bonus Link: Contracts Issues in Tim Burton’s Big Fish (2003) (imdb | official site | wikipedia).

What other movies are there out there that turn on contract law issues? Feel free to let me know in the comments.

This beautiful photo is by Vancouver family lawyer Kathleen Walker, who tells me that the statute is in the Vancouver Courthouse of the Supreme Court of British Columbia, Canada. The ancient Greek Titaness Themis, is the embodiment of divine law, order, and custom. A daughter of Uranus, and an early bride of Zeus, she issued her divine edicts to mankind through the great oracle of Delphi. Her later Roman equivalent was Justitia, and artistic representations of justice (blind and impartial – including those shown on this blog) are now typically Roman rather than Greek. However, the statute in the Great Hall of the Law Courts Building in Vancouver (pictured above), is a bronze by Jack Harman and it is explicitly of Themis.

I have written on a number of occasions on this blog about the importance of open justice to the rule of law, and no sooner had I discussed this photo with Kathleen than I noticed the following report in Saturday’s Irish Times:

Media challenges McKillen’s bid for secret hearings

Property developer Paddy McKillen’s bid to keep information about his financial dealings out of the public arena during a High Court case in London is to be challenged by a number of newspapers, including The Irish Times.

And today’s RTÉ News brought more information:

Counsel for Paddy McKillen seeks confidentiality over financial information

… Mr McKillen is suing David and Frederick Barclay in a dispute over three London hotels … [and he] is attempting to stop publication of further details of his financial position, which his legal team says will allow the Barclay twins to destabilise the developer in relation to other assets. …

Updates: there’s more in the Irish Times: London court told Barclays would ’stop at nothing’ (24 April 2012); Media challenges McKillen moves to stop disclosure (25 April 2012):

Besides a ban on the press hearing some of the case, [McKillen] also wants disclosure of some of his affairs permanently kept from the Barclays and Mr Quinlan, though available to their legal teams. The application was opposed by The Irish Times, Independent News and Media, the Guardian, the Financial Times and the London Times Newspapers.

That latter article contains a good summary of the arguments addressed by all sides to Richards J, and that summary reinforces my view that the This claim would almost certainly fail as a matter of Irish law (In re R [1989] IR 126; Irish Press v Ingersoll [1994] 1 IR 176, [1993] ILRM 747). For what it’s worth, as I understand the case, McKillen has brought a claim against the Barclays; and since he is seeking the advantages of a court action, he should accept the disadvantages too – if, from his perspective, the principle of open justice is a business disadvantage, that is the price he must be prepared to pay for seeking the benefit of the courts in the first place. It will therefore be interesting to see how this fares in the English courts after R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012) (which I blogged here).

The third session of Thursday’s CAVE Seminar (pdf) on the National Strategy for Higher Education (the Hunt Report) divided into two workshops, one on Research (facilitator: Dr Aiden Seery (TCD); rapporteur: Dr Joan Lalor (TCD)), the other on Teaching and Learning (facilitator: Dr Ciara O’Farrell (TCD); rapporteur: yours truly). The workshops discussed many of the themes of the first two panels, and the rapporteurs’ reports to the final plenary session allowed those discussions to engage with one another. Proceeding from their separate starting points, there was a great deal of convergence in the analysis and conclusions of the two workshops, not least their agreement as to the flaws in the Hunt Report.

Both workshops bemoaned that modern policy is driving a wedge between research on the one hand, and teaching and learning on the other, as reflected in the titles and focus of the two workshops! Both workshops felt that it is crucial for HE to maintain and insist upon parity of esteem of between teaching and learning, on the one hand, with research on the other. However, both workshops felt that government policies and institutional strategies are increasingly favouring a particular kind of research. State funding is mostly for research, since it is easy to ascertain certain research inputs (money) and to measure certain research outputs (for example, PhD numbers, or peer-reviewed publications in the “right” journals in the “right” databases). This approach is almost a business plan in HE, and it is reflected in and reinforced by the Hunt Report’s mechanistic commercial assumptions (relating mainly to “innovation” at the expense of almost every other possible social, cultural or educational value). The Report is all about structures and outcomes, but it has no core education vision in the sense that it has no core vision for educating; it doesn’t answer the question of who and what education is for; and it is therefore inadequate from perspective of teaching and learning. Moreover, it has a particularly limited view of research, focussing on that research that can be applied to commercial innovation at the expense of pure research or critical voices. As national priorities in these areas are set, they might be more palatable if those of us in the HE sector who will be at the coalface of implementing those priorities were involved in setting those priorities.

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The second panel of Thursday’s CAVE Seminar (pdf) on the National Strategy for Higher Education (the Hunt Report) concerned The Student Experience. It was chaired by Dr Patrick Geoghegan (TCD), and featured Martin McAndrew (Vice President, TCD GSU), Dr Mary-Liz Trant (HEA), Dr Austin Hanley (Athlone IT), and Dr Aiden Kenny (TUI). There were several connections between the first panel and this one. Two stood out. In this morning’s panel, Tony welcomed the emphasis in Hunt on generic skills as an important aspect teaching and learning, and he argued that there is no inherent conflict between academic values and employability skills. By way of contrast, in this panel, Austin recalled the negative impact of fees on student participation, and commented that “you have to have the opportunity to go to College to have a student experience”. Both of these themes recurred throughout this second panel.

Aiden explicitly argued that quality and cuts are antithetical, and although academic staff have so far managed to maintain academic quality and standards, a crisis point is nearing: the mounting workload is not sustainable, and (recalling a point made by Mike and Erika in the first panel) and the voice of academic expertise seems excluded from the development of policy in this area. Providing specific figures for much of the discussion in both panels, Aiden demonstrated the dramatic increase in participation in education, especially by non-traditional students and in higher education (HE). In particular, participation in HE is up by 554% since 1970, and a further increase of more than 70% of the current numbers is projected by 2030. However, even as student numbers increase, funding and staff numbers go the other way. Funding is down 15% in 3 years, and staff numbers are down more than 10% over 4 years (especially due to the major impact of the employment control frameworks – which I blogged about here and here). All of this is to the detriment of the HE sector in general and of the student experience (unreplaced lecturers, amalgamated classes, reduced expenditure on student services).

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I spent this morning at a fascinating Seminar (pdf) on the National Strategy for Higher Education (the Hunt Report, which I blogged here), organised by my TCD colleagues Dr Andrew Loxley, Dr Aiden Seery, and Dr John Walsh, (CAVE, School of Education, TCD). This is the first of four blogposts about the event. The first panel concerned Who pays for College? Expansion and Sustainability in Higher Education. It was chaired by Prof Maria Slowey (DCU), and featured Mike Jennings (IFUT), Tony Donohoe (IBEC), Ryan Bartlett (President, TCD SU; and student in School of Education, TCD), and Dr Erika Doyle (TRSA).

In her introduction, Maria pointed out that the question of “who pays?” is much broader than fees, hence questions of expansion and sustainability in the subtitle.

Mike began his very witty presentation by observing that the Hunt Report is underwhelming and full of internal contradictions. Erika similarly observed that the Report is long on aspiration, but short on detail. And both of them felt that it betrays its lack of engagement with serving academics; and they and Ryan all observed that, where there are bars to access to higher education (HE), one family member may not be able to go to College to allow another to do so. They also pointed out that a degree is now the basic access point to employment, where the Leaving Cert once was. Mike took the question “who pays for people to go to College?” and posed the corollary “who will pay if people don’t/can’t go to College?” His answer to the to latter is: Society. Hence, he – and Erika and Ryan – argued that HE is a societal benefit, so society should have to pay, funded via a fair and progressive tax system.

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