A quick post to flag up this story from The Register reporting on Kaschke v Gray & Anor [2010] EWHC 690 (QB).

Essentially, this is an appeal against  a summary judgement which found that Alex Hilton of the Labour Home Blog could be considered a publisher in this claim for libel.  His editorial responsibility for the blog may amount to a sufficient level of control for him to be considered liable for Mr Gray’s post alleging that Ms. Kaschke was a member of a terrorist organisation.  The appeal was dismissed.  The broad point seems to be that any editorial changes (in this case even correcting spelling errors) on some posts will show that there is editorial control over all posts that appear on that site.

A couple of observations – if you are contemplating a libel action regarding online material, could you please employ a barrister?  There are some real points of law that need to be clarified in this area, and they keep getting lost in procedural issues because claimants seem determined to represent themselves.  Second, if you are a defendant and you lose your application for summary judgement, could you please grow a pair and proceed to trial rather than wimping out at the idea you may end up paying substantial damages?  Yes, the damages in Godfrey v Demon Internet were quite large, but they may have been anomaly and we’ll never know unless these cases proceed to trial.

I have a spare couch you can stay on if things don’t work out.

Not the most original title, which I have shamelessly stolen from this article in The Lawyer.

The article is a report on the Employment Tribunal decision in a case where a former barrister accused her chambers of racial and disability discrimination.  I must confess I think I am becoming a little  cold-hearted when reading employment cases, but this left me stunned by both the nature of claims, the size of damages sought, and the description of some of the incidents that took place.  My idea from pupillage fairs is that most sets of chambers are a genial bunch of like-minded colleagues contently pushing themselves and their set forward – this was not the case here.  The tribunal dismissed the claim, but clearly neither side covered itself in glory.

One point that seems missing from the article is if the Bar Council’s arbitration service was involved.  It would seem that this is exactly the sort of case that would call from their involvement, not least because the very public fight this situation evolved into risks casting the whole profession in a negative light.

Ah, the Theft Act 1968…

17 False accounting
(1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,—
(a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or
(b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular;
he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years.

(2) For purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document

Note, they charged under the old boring Theft Act and not the sparkly new Fraud Act 2006. I think s.4 would be appropriate:

“4 Fraud by abuse of position
(1) A person is in breach of this section if he—
(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.”

One my failings as a baby lawyer is that, when I hear a “fact” regarding an area of law I am a bit doubtful on, I have an awful tendency to assume I have misunderstood the law rather than question the “fact” until I have checked it out. This is what I did today regarding Parliamentary Privilege. The Parliamentary Privilege I know relates to a protection of MPs against defamation so that they do not hesitate to have robust debates for fear of their subject bringing an action against them.  No way is that going to help them out of a criminal prosecution… I must have misunderstood – what they are talking about sounds like “Immunity”.   Immunity is, as you’d expect, is a complete exemption from having to comply with English law. We, and even then controversially, extend this protection to diplomats and their families. This is how the US gets to stick two fingers up at Boris and that annoying little London driving tax the rest of us have to pay.   Anyway, I was right, MPs definitely do not have immunity from criminal prosecution, and the idea that Parliamentary Privilege could be extended to mean this is nonsense.

Sadly, it seems it is not so fantastical that the CPS felt certain enough to say that; instead suggesting the courts should decide. If there really is such a level of uncertainly about this concept, then could we please rush this up to the High Court so that it can be declared ridiculous before our elected representatives think of any other criminal laws they’d like to be exempt from.