Perhaps even now the dispute isn’t dead and buried but merely dozing. I imagine the McClory Estate and the Ian Fleming Will Trust as the last organisms to survive on a ravaged and blistered planet, periodically serving writs on each other.
The instructing solicitor in the 1963 case, Peter Carter-Ruck, attributed the successful outcome of the case to Dad’s performance, though it was also clearly important (and perhaps not expected by the other side) that Kevin McClory stood firm in the witness box. There were complications, with two plaintiffs initiating the proceedings (though McClory’s business partner, Jack Whittingham, withdrew, in poor health and worried about the financial risk involved) and two defendants throughout, Fleming and Ivar Bryce, which makes it harder to separate out individual motives from the swirl of courtroom manoeuvres.
Apart from Whittingham the three principals were well funded. McClory had recently married an heiress, Fleming’s earnings from the Bond books were colossal and Bryce was not only a rich man but had married an heiress of his own. According to The Battle for Bond it was Bryce who decided to settle the case, but logically it was Fleming who was vulnerable. It would be a huge blow to his standing if he was found by the court to have plagiarized McClory’s screenplay, and it was strongly in his interest to accept any terms before such a judgment was given.
The settlement allowed him to say, after the hearing, ‘I am glad that the whole expensive misunderstanding has now been disposed of’, though this was just the sort of blurring of the issue which got Jonathan Cape and John Pearson into trouble with the Fleming biography three years later.
There were those who said that Bill Mars-Jones loved the sound of his own voice (this group occasionally included members of his immediate family), that he talked for the pleasure of hearing himself speak. On this occasion his vocal performance was close to heroic. His laying out of the case against Ian Fleming lasted twenty-eight hours and eight minutes. As court time is measured out, Dad spoke for more than a week.
A full performance of Der Ring Des Nibelungen lasts fifteen hours, just over half the length of Dad’s opening speech in the Thunderball case, and even Wagnerian roles aren’t continuous. It’s true that Dad didn’t need to hit specific notes, but he will have needed to pay attention to vocal variety. Vital to avoid the sing-song intonations which can tug a judge’s eyelids downward in the long watches of the afternoon.
What was the point of so extended an opening? It can be a way of dramatizing confidence, indicating the wealth of evidence on offer, by saying in effect: ‘My client’s case is not made of straw, My Lord, nor of sticks, nor even of stoutly bonded bricks, bricks so well laid and soundly mortared that no huffing and puffing on the part of Mr Fleming’s advocates (my learned friends) could make the slightest impression on its solidity of structure, but of concrete. Reinforced concrete.’ Putting pressure, hour by endless hour, on the defendant. This sounds like overkill, but Dad was well known for the obsessiveness of his preparation, insisting on seeing every piece of paperwork rather than relying on someone else’s selection of what was important. I wonder if he hadn’t been scarred by an early case, caught out when he hadn’t been quite so meticulous and getting a nasty surprise in court. In any case the combination of flair and attention to detail amounts to a formidable armoury for a courtroom lawyer.
It’s conventional to blame the case for the deterioration in Fleming’s condition, though his health problems were of long standing. Only Ann Fleming, Ian’s wife, seemed to feel that the trial had a beneficial effect on his physical well-being. ‘Goodness I miss the Old Bailey,’ she wrote in a letter to Evelyn Waugh in December 1963, though in fact the case was heard in the Royal Courts of Justice, ‘the case did Ian a power of good, no smoking in court and one hour for a simple lunch.’
Of course anyone writing to Waugh did well to keep the entertainment level high and to point up any possible irony, but perhaps she really did feel that the Chancery Division of the High Court stood in for a health club of a particularly exclusive kind, a judicial Champneys whose mortificatory element (sitting on hard wooden benches hour after hour to hear yourself characterized as profiteer and cad) was only an aspect of its efficacy and its prestige.
I don’t know why Dad felt the need to dress up his involvement in the Thunderball case with the fairy story about his inbuilt lie detector. It’s obvious that Kevin McClory didn’t come to Dad direct, and that Peter Carter-Ruck took McClory on as a client not because success was guaranteed but because payment was assured either way. Dad was the right man for the job, with a methodical approach that ran no risk of being dry, thanks to the whiff of danger he gave off in court. Why be embarrassed about that? But perhaps he disliked any idea of being a hired gun, and cried up the moral standing of his line of work accordingly. The traditional costume of the barrister — wig, gown and bands — is designed to produce the same effect, lending to a mercenary some of the dignity of a priest. Stylized battledress and a bandolier, even one made of horsehair, would attract the wrong sort of client.
Dad didn’t have anything as coherent as a philosophy of the law, and his personal principles could be strongly polarized without adding up to a standard opinion-poll profile. He was against capital punishment, for instance, and strongly opposed to pornography. These are common attitudes individually but the combination is mildly anomalous. Displayed as a Venn diagram, the two relevant circles would show little overlap. Admittedly the overlap between those in favour of capital punishment and those opposed to censorship would be smaller still, but Dad still has to count as something of a free-thinker.
This was very much the point made by Geoffrey Robertson in The Justice Game: that when the first ABC trial (the nickname came from the surnames of the defendants, two journalists and their source being prosecuted under the Official Secrets Act) was abandoned due to the ill-health of the judge, and Mr Justice Mars-Jones was named to preside over a new one, Robertson — representing the three — did not have high hopes of his fair-mindedness in court. Knowing that Mars-Jones J (this is how judges are styled in law reports) was a great upholder of law and order, and moreover that juries ‘ate out of his hand’, he told his clients they could expect to spend their Christmas in prison.
Instead Mars-Jones J dismissed the charges, saying that the Official Secrets Act had never been intended to be used in such a way. When told that the Attorney General had authorized the prosecution, he said (I must go to slow-motion here, it’s such a wonderful moment, a Clint Eastwood moment), ‘Then he can un-authorize it.’ Is that a cheroot clenched between Dad’s teeth, or possibly a toothpick? He has slung a dusty poncho over the ceremonial scarlet. To throw out a case in this way is a permanent possibility of judicial procedure, but it takes a strong judge to make it happen, particularly if the result will be to nullify a case that the government has set its heart on. The jingle of spurs is rarely heard in the courtroom these days.
His independence of mind was partly protected by the fact he didn’t want to rise any higher in the law. He was content to be a judge of first instance. Occasional stints in the Court of Appeal, sitting with two judges who seemed to gravitate towards points of law with a mystical certainty, convinced him that he lacked the rapid analytical processing required to excel in that arena.
I was studying in the States at the time of the ABC case, and heard only the vaguest rumblings about it. I didn’t need to know more, as I thought then, since it was so obvious that Dad would be on the wrong side. If no man is a hero to his valet, then certainly no judge is a libertarian to his son. In the ABC affair I had the excuse of geographical distance, but even when I was much closer to his professional life I ignored its possible element of idealism. There was a case in 1982, for instance, presided over by Dad, in which a Jamaican couple sued the police for assault, wrongful arrest and malicious prosecution. Dad seemed to find it mildly amusing that a black couple should have the surname White. He gave a wouldn’t-you-just-know-it shrug when he mentioned it, though he would never have thought it strange that a white couple should have the surname Black. There was nothing odder about a black person being called White than for a person called Smith not to work in a forge, or for someone called Mars to be living right here on Earth. He would have given the same sort of shrug and raised his eyebrows, mock-indulgence, mock-exasperation, if the couple in his case had been surnamed Black, though if a third party had pulled a wry face at a white person being called White he would have been puzzled about where the element of humour lay.