I feel the need of a ‘necessarily’ before ‘intimidate’ in that last sentence, at the risk of taking some of the shine off it.
It’s true that Denning could be very concerned with the protection of ordinary citizens, but he was also capable of arguing (in 1980) against those imprisoned for the Birmingham pub bombings being allowed to challenge their convictions. His reasoning was that if an appeal failed, a lot of money had been wasted, while if it succeeded,
it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous … That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’
No mention of individual rights accompanied either outcome. There was just a calculation of the damage done to the public balance-sheet and the public confidence. It would be bad for the national mood if malpractice was exposed — but this was not Dad’s view in matters of public probity.
By the same ignoble logic, it would have been wrong to prosecute the Obscene Publications Squad in 1976, since the proceedings would reveal they had been bought by the smut-merchants they were paid to keep down. It was as if rats had taken over the board of Rentokil and replaced the poison in traps across the country with multivitamins. This news might very well upset the company’s shareholders, but how was that an excuse for keeping them in the dark?
When giving judgment in O’Sullivan & Another v. Management Agency & Music Ltd & Others, Mars-Jones J relied on Lord Denning for the chords (so to speak), but he had to make sure the tune of this particular case fitted them. In what sense was Raymond O’Sullivan, professionally known as Gilbert O’Sullivan, ‘an individual so placed as to be in need of special care and protection’? (There exists no general duty of care, and no general principle of enforceable fairness, just a special dispensation in exceptional circumstances.) A standard type of this individual would be the ‘expectant heir’, someone who has assets he or she is unable to realize in time of need, but can transfer to someone else — greatly below their eventual value, as it may be — in exchange for ready money. O’Sullivan’s talent as a writer qualified him as an expectant heir, entitled to be rescued from the consequences of his own decisions.
O’Sullivan was certainly unworldly, happy just to be making music, to be selling records, to be getting a reputation. He was given £10 a week spending money and lived in a cottage on the grounds of a substantial property owned by his manager. Somewhere in all this lurks the idea that Gilbert O’Sullivan was the child-man of his early image-making, not yet ready for long trousers, technically old enough to sign a contract but still a minor in psychological terms. He was being treated more like a ward of court than an autonomous adult.
The Bash Street Kid image actually seemed to suit him, certainly in terms of his bony face, better than the approximation to a hunky look that followed it. Fluffed-out hair doesn’t work for everyone. He alternated unconvincingly between cosy jumpers and shirts open to the waist. No-one seemed to know if he was cuddly or sexy or not much of either, as he went through the available permutations of styling.
Having determined that the contracts should be put aside as void and unenforceable, Mars-Jones J directed that the master recordings be delivered to the plaintiff. Then he assessed the appropriate damages, and here he was in danger of going too far. He had already said that O’Sullivan had been ‘fleeced’ by Gordon Mills. Now he ruled that MAM should pay back all the profit made from the singer and his songs, with compound interest. A. J. Bateson QC, counsel for the plaintiffs, referred him to a ruling of Lord Denning’s from 1975 (it’s Wallersteiner v. Moir, if you’re hungry for a reference) in which he stated that ‘in equity, interest is never awarded by way of punishment. Equity awards it whenever money is misused by an executor or a trustee or anyone else in a fiduciary position …’ Mars-Jones J accepted this, saying, ‘I have found there was a fiduciary relationship here’.
He seemed to be equating a management company with a trustee, who would not be entitled to profit from the monies he handled. MAM, though, was in business to make money from the representation of its clients (who included Tom Jones and Engelbert Humperdinck). Mars-Jones J’s directions did not recognize any legal element of profit. If the damages awarded weren’t explicitly punitive, it wasn’t easy to understand them in any other spirit.
N. A. Strauss, representing the First to Fifth Defendants, tried to protest: ‘My Lord, I accept that your Lordship has jurisdiction to order interest on that basis, but I submit that it is inappropriate in the circumstances …’
He tried to spell out the flaw in the judge’s reasoning, but Mars-Jones J was, as he said, ‘not attracted’ by his proposition. He wouldn’t budge. After another couple of attempts, Mr Strauss could only say: ‘My Lord, I have made my submission. I do not think I can take the point any further.’
I can find some sympathy in my heart for Mr Strauss. When there was something Dad didn’t want to hear he could generate quite a force-field of negative interest. If he was ‘not attracted’ by a proposition there was a low hum in the air and the fitments began to rattle.
Mr Strauss’s argument would have to wait for a hearing in a higher court. In 1984 there was an appeal in O’Sullivan & Another v. Management Agency & Music Ltd & Others, heard before Lord Justices Waller, Dunn and Fox. In their representations the defendants, or the relevant lawyers, found fault with absolutely everything that had been decided in Dad’s court. That’s one advantage an appeal against judgment enjoys over a family argument — nothing is lost by saying ‘And another thing …’ They objected to the notion that there was a fiduciary relationship between Gilbert O’Sullivan and his manager, to the voicing of personal criticism, to the transfer not just of copyrights but of master tapes, and above all to the fixing of compound interest as the appropriate mechanism for returning MAM’s profits to the man who had generated them.
There was a certain amount of routine legal to and fro. Counsel for the plaintiffs proposed that the proper approach was that adopted in Peter Pan Manufacturing Corporation v. Corsets Silhouette Ltd [1964]. Counsel for the defendants felt rather strongly that the plaintiffs could not rely upon the support offered by Peter Pan Manufacturing Corporation v. Corsets Silhouette Ltd [1964].
The legal term for returning profits after the event is rather lovely. MAM was being required to ‘disgorge’ the money, a word that suggests a snake unhinging its jaws and yielding up some half-digested goat.
The disgorgement required of MAM was drastic. By making two changes to the system of repayment (factoring in past Corporation Tax and calculating simple rather than compound interest) the appellants sought to reduce the amount due by over four million pounds.
The original hearing had been long and intricate, the appeal brief but formidable in the intensity of its reasoning. The judge of first instance, sitting alone, had ruled that the contracts were void. The higher court was in effect an incandescent tube powered by three Lord Justices wired in parallel, legal luminaries whose individual wattage was already formidable. They disagreed with Mars-Jones J, defining the contracts as not void but voidable, being unenforceable so far as unperformed.
Sitting alone, like my father before me, I must huddle round the faint glow thrown by my little layman’s Anglepoise and struggle to make sense of the shapes I see. I take this to mean that a void contract — void ‘ab initio’ — would be one that could never have been performed. A voidable contract is one that can be set aside if its terms are not implemented, and this is the category to which the appeal judges decided Gilbert O’Sullivan’s agreements with Gordon Mills and MAM properly belonged. They could be set aside because the obligations laid on the defendants had not in fact been discharged.