Dad’s tip for the future of a truly popular music was always the return of that swinging, big-band sound. Nevertheless he had admiration and sympathy for singer-songwriters, creators as well as performers, even if he would pause by the television during Top of the Pops just long enough to mark Kris Kristofferson or John Denver down for using a ‘capo’, which allowed them to transpose music without refingering. According to Dad this was a cheat, and the sure sign of the dabbler. If I’d known more at the time about musical history I might have pointed out that the ‘capotasto’ was already in use early in the seventeenth century, with the word itself attested from 1640, so that this cheat’s device can claim to be older than the guitar in its modern form — but perhaps on the whole it’s a good thing that I didn’t.
He presided over one significant case, O’Sullivan & Another v. Management Agency & Music Ltd & Others (1982), in which a downtrodden singer-songwriter took on his oppressive management company. It seemed to Dad that Gilbert O’Sullivan’s innocence had not just been taken advantage of by MAM Ltd but positively mocked. At one point in early 1974, O’Sullivan was advised by his manager, Gordon Mills, that he must leave the country at once for tax reasons. He went to Portugal, a poor choice since revolution broke out there almost at once. He took refuge successively in Spain, Italy, Spain again and finally Holland. In October he was told it was safe to return to British soil. How much had these complicated manoeuvres saved him? Not a penny. They were pushing him around in the most obvious way, pushing him around the map.
It had been shrewd of O’Sullivan to project a gormless image at the start of his career — like an overgrown Bash Street Kid with his flat cap, pudding-basin haircut and long grey shorts. It had certainly got him noticed. But that was as far as his shrewdness went. He had signed a management contract without taking independent advice, and was being exploited in any number of ways. He was being paid a very modest allowance even after becoming a successful recording artist. For a long time he idolized Gordon Mills, occasionally even acting as babysitter for his daughter Clair, whose name he commemorated in one of his best-selling songs. An emotional dependence made him slow to act on his suspicions even when evidence of wrongdoing began to pile up around him.
The question for the judge was whether it was right to compensate this innocent for his self-inflicted financial wounds. He had signed a contract, and if he was foolish enough not to read it or ask for it to be assessed by a qualified third party then you could argue that he had forfeited the right to any intervention by the law. It could almost be a proverb: the tightrope walker who cuts up his safety net in order to make a string vest should not be surprised to hit the ground with great force.
O’Sullivan couldn’t get out of his obligations as neatly as a much cannier musician, Arthur Lee of the 1960s’ San Francisco group Love, who was able to flourish his birth certificate and instantly invalidate the contract he had signed as a minor.
All that seemed to invalidate Gilbert O’Sullivan’s contract was its monstrous unfairness, which doesn’t necessarily have legal force. An agreed set of operations must be carried out before a resolution can be reached. A judge is a sort of weaver bird, picking through the twigs of statute and precedent offered by the advocates for the parties involved, masticating them intellectually then gluing them together to build the nest in which he will lay the egg of his judgment.
The aspect of the law which seeks to ‘mitigate the rigour’ of common law is equity, and this was the paper in his Bar Finals that had won Dad his highest marks. As far as I understand it, which is hardly at all, common law and equity are like the complementary cerebral hemispheres of legal decision-making, with right-brain equity continually modifying the inhumanely precise discriminations of left-brain common law.
For his judgment in O’Sullivan & Another v. Management Agency & Music Ltd & Others Dad relied heavily on Lord Denning’s codification, in Lloyds Bank Ltd v. Bundy (1974, reported 1975), of the various exceptions to the rule that signatories to a contract can’t just walk away.
There are cases in our books in which the courts will set aside a contract … when the parties have not met on equal terms — when the one is so strong in bargaining power and the other so weak — that as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall.
This seems both promising and slightly empty. When does the individual ever meet an institution on equal terms? Whether it’s a customer approaching a bank or a writer signing up with a publisher, bargaining power is so unevenly distributed that the word ‘power’ itself seems comical, even if this crazy-golf playing field goes by the name of ‘the ordinary interplay of forces’.
Nevertheless Denning proposed that there was such a thing as an ‘unconscionable’ transaction. An individual so placed as to be in need of special care and protection might in the event be exploited by stronger agencies. Undue influence might be a consideration in deciding whether this was so. He was careful to stipulate that undue influence was possible without active wrongdoing. Self-interest was enough. In deciding whether a transaction was unconscionable it would be relevant to determine whether independent advice had been sought. Independent advice can’t guarantee a balanced transaction, but the lack of it offers unfairness an opportunity.
It was a poignant moment to be recapitulating Denning’s defence of the individual against institutional pressure. The day Mars-Jones J gave reasons for his judgment in O’Sullivan & Another v. Management Agency & Music Ltd & Others, 22 July 1982, was only a week or so before the near-legendary Denning’s own last day in court. He had announced his retirement as Master of the Rolls, not exactly a voluntary departure from office but a political necessity after the Society of Black Lawyers took exception to questionable assertions in his book What Next in the Law. There was no question of his retirement going unmarked. He made a farewell speech to a court full to bursting with his colleagues (there were three hundred of them). A historic stepping-down, ripe in honours, with a hint of slow-motion defenestration.
Despite his reputation as the people’s judge, Denning faced two ways. He was both liberal and illiberal. Perhaps the office has this Janus element inherent in it, there being no consistent way of resolving the conflict between individual rights and the imperatives of polity.
That’s why I have my doubts about Geoffrey Robertson’s full-throated paean to Dad (‘a red-robed angel of mercy’) in The Justice Game, however much I welcome it personally. As he sees it:
A, B and C were free, not as a result of their own courage (which was a precondition) or of their campaign (which gave them courage, but did not help the courtroom battle): they owed their release to a judge robustly indifferent to the State. Other judges, it is true, might not have recognized the oppressiveness of the indictment, or have called a halt to the case in the same way or at all. But for an era which is remembered for wrongful convictions and the liberties taken by the security services, the action of Mars-Jones is worth remembering, and worth celebrating. It says something for a system when the State, with all its power bent on conviction, cannot intimidate the courts or make prosecutors flinch from the duties of fairness.