Kid Gloves

by Adam Mars-Jones

  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.

  The emphasis here seems to shift from an unconscionable contract (and one in which Mars-Jones J detected not just inequality of bargaining power but ‘plain, unvarnished deceit’) to one that was acceptably framed but defectively discharged. Even so, the effect was not to let Mills and MAM off the hook. The Lord Justices accepted that there was a fiduciary relationship, and that the defendants were in breach of it. They were therefore not entitled to profit by their wrongdoing. There was discussion about how amends might be made.

  It turns out that you can’t have rescission without the possibility of restitutio in integrum. Translating roughly: there’s no point in saying a contract never happened unless you can restore the status quo as it was at the moment of signing. It’s meaningless to turn the clock back if everything has been changed by the contract itself.

  The use of Latin in legal argument and judgment has been drastically reduced since 1982. The effect is to make the proceedings less opaque, but they will always be opaque to some extent by virtue of being governed by past decisions, and hinging on distinctions foreign to daily life.

  A legal system based on precedent is a monument to creative rot, a sort of cultural compost heap dating back, notionally, I suppose, to the Conquest. Not everything rots down into principle at the same rate, so that the decisions of a Denning, say, can resist the process in the same way that eggshells and avocado stones do, retaining their integrity and withholding their nutrients from the rich millennial mulch of insight and vested interest.

  Just as the terminology of the early 1980s now seems very stiff, so the language of earlier cases referred to during the appeal proceedings has an additional fustiness that can sometimes be beguiling. Dixon, CJ, in Alati v. Kruger (1955) refers to the disaffirmance rather than rescission of a contract.

  Purely as a word, I prefer ‘disaffirmance’ to ‘rescission’ (which sounds like bad news you might hear at the dentist’s), and I’ve been disaffirming things like mad since I learned it, though made uneasy by not knowing if there’s a shade of meaning involved. Does it make a difference that Dixon was Chief Justice of Australia? I know Australian law derives in some way from English, but how does Australian precedent impinge on English case law? My ignorance seems to increase with every moment of enlightenment. I’ve written with more confidence about Japanese cinema than I do about English law.

  I do feel qualified to assess rhetoric, and the award for the most stirring utterance of the appeal must go to Michael Miller, QC, for the plaintiffs, who said:

  He who seeks equity must do equity. In the present case it is inequitable that the first plaintiff should seek to recover the whole profit made by the defendant companies as a result of the agreements, without being prepared to permit them reasonable remuneration for the very valuable services they have rendered in turning him from a relatively unknown song-writer to an internationally famous star.

  (O’Sullivan had been working for the Post Office when he signed the contract.) Strongly put. What’s sauce for the plaintiff must be sauce for the defendant.

  Or as Lord Wright put it in Spence v. Crawford (1939), ‘Though the defendant has been fraudulent, he must not be robbed, nor must the plaintiff be unjustly enriched, as he would be if he both got back what he had parted with and kept what he had received in return.’ Yet this is more or less what the court of first instance had ruled, and even on appeal the defendants were held to be entitled only to ‘a reasonable remuneration including a small profit element’. The underlying idea seems to be that someone who has been defrauded should sue for damages rather than relying on equity to make everything good. There’s a grey area here, though, since in equity the term ‘fraud’ embraces not only actual fraud but certain other forms of conduct falling below the standards demanded by equity. Conduct of this sort is known as ‘constructive’ fraud. One of the examples of such a fraud would be a transaction procured by undue influence, or where one party is in breach of a fiduciary duty to another. Exactly what was held to have been the case here.

  The judgment in the lower court was neither upheld in toto, nor comprehensively overturned. Instead it was upheld in part and the judge’s order ‘varied’, with significant adjustments made to it. Mars-Jones J ‘fell into error’
when he accepted counsel’s argument about the appropriateness of compound interest. (Excepted from this were the secret deductions made by MAM (Music Publishing) Ltd from monies taken in Germany and New Zealand. It was right that these sums be repaid with compound interest.)

  One of the cases referred to in the appeal was Erlanger v. New Sombrero Phosphate Co. (1878). There isn’t enough poetry in the law for me to risk leaving it out. Might that be a guano enterprise? The market value of birdshit has lessons for us all.

  Dad would rather have had his order ‘varied’ than thrown out, I’m sure, but he can’t have enjoyed the experience. If I’ve battled through the case and the appeal in as much detail as I can manage, and with as much clarity, it’s partly to confront for my own benefit how different his world was from mine. In fantasy he would annex the world of books in his retirement. He also encouraged me to think of myself as a potential lawyer, but it isn’t so. My wheels grind differently, and my ego is hungry for a different food.

  The case of O’Sullivan & Another v. Management Agency & Music Ltd & Others was a significant one, though it hardly dominated the headlines. Dad would have listened respectfully to submissions made on behalf of a writer or an artist, but un-justice done to a musician, a performer moreover who wrote his own material, somehow struck him more forcibly and may have been part of what caused him to ‘fall into error’.

  Possibly there was an element of spurious underdog identification at work. Gilbert O’Sullivan had arrived in London by way of Waterford and Swindon, Dad by way of Llansannan and Aberystwyth. They had both come from nothing. After the death of our neighbour Os(wald) Terry, Dad would reminisce about his own early life using the phrase ‘When I were a little lad …’ which had been Os’s trademark. Dad seemed not to realize that he was advertising the inauthenticity of his remembered struggles with the use of a borrowed tag, though I’m sure that Os picked it up somewhere too, just as the monologue of his we enjoyed so much as children, about Albert and the Lion, turned out to be Stanley Holloway’s really.

  Counsel for the defendants were working hard during the appeal to argue down the large sums whose disgorgement had been ordered by the court of first instance. They stated their objection to the master tapes being returned to O’Sullivan, but concentrated their efforts, understandably, on arguments that could save money right away.

  It may be that the real importance of O’Sullivan & Another v. Management Agency & Music Ltd & Others was the precedent it set in the matter of master tapes. An anomaly of the case seems to be that Gilbert O’Sullivan ended up in possession of these valuable items, though if he had taken independent legal advice and signed a much more advantageous contract he would have enjoyed no such benefit. This is more or less a technicality in the case itself, because O’Sullivan had since signed other contracts that meant he then yielded up the master tapes to other record companies, but perhaps it expanded the possibilities for others. A singer/songwriter in an oppressive contract who only stood to win back his copyrights might think twice, but the prospect of getting ownership of master tapes would exponentially increase the attractiveness of a lawsuit.

  There were musicians who took their cue. Sting sued over inequitable contracts (before the appeal in O’Sullivan & Another v. Management Agency & Music Ltd & Others, I think), with Mars-Jones J presiding. This was in the early days of the soundbite as an art form, and I imagine Dad must have wished he had worked harder on a truly quotable dictum when he remarked, after the defendants had finally capitulated to Sting and settled, ‘This has been a very trying trial.’ Elton John also sued Dick James Music, though before a different judge.

  In all this I am feeling my way, humiliated by an inability to distinguish the core issue from the contingent circumstances, the steak from the parsley garnish. It has been a Socratic process, to learn how much I don’t know, and I fully understand the feelings of the ancient Athenian citizenry, who might acknowledge that Socrates was a cultural treasure without equal, but would cross the road or remember a previous engagement rather than be drawn into dialogue with him.

  From the dawn of pubescence if not before, my assigned role in the family was peacemaker, a not uncommon casting for a middle child, but Dad further characterized me as dreamy and unworldly, only too likely to be exploited by more savvy folk. Watching me as a child flitting from the piano keyboard to a book and the television, then back again, he would tell me that I had a butterfly brain. I wish I had had the wit to tell him I had something much more useful, a bee brain.

  In many areas of life he simply ignored evidence that contradicted his fixed ideas, but this wasn’t one of them. After the moment in 1980 when he learned that I had a book contract with Faber for the book eventually titled Lantern Lecture, he never seriously questioned my judgement. Did I start riding a motorbike (in 1988) when I was too old to be classed as a boy racer, too young for it to qualify as a midlife crisis with handlebars? Dad was confident I’d ride safely. Did I venture into an unconventional family life (in 1991) by having a daughter with a friend? Dad was delighted. He would have preferred a grandson but was prepared to wait for a further instalment of this pleasing twist in the family saga. He didn’t imitate the ritual cry of his beloved Fred Flintstone – Yabba-dabba-doo! – but that may have been because he was too busy calling for champagne.

  His earlier idea of me as dreamy simply fell to the ground, and he decided that I must have been planning the Faber coup more or less from the egg. Useless to say that good luck and social contacts – thank you, Rosemary Hill – had led me first of all to a magazine editor (Craig Raine of Quarto) and then, thanks to Craig’s urgings, to a publisher, with the ragbag of fact-based fictions that was pretty much all I’d ever attempted. My dreamy side was still there, though I took care to defend it behind intellectual barricades, topped with all the razor wire I could rustle up.

  The problem area was my sexuality, something not touched on in that first book, since Dad had always had such a horror of men who were attracted to men. He was more than a standard-issue homophobe, not far from a homophobe’s homophobe. If there were Annual General Meetings of the Homophobia League then he would be an honoured guest if not keynote speaker, guaranteed any number of brief manly pats on the back.

  Part of this was an unworldliness of his own. He was one of the very few judges of his day who hadn’t gone to public school. He had studied at St John’s, Cambridge, but only for a year after the end of his time at Aberystwyth. He didn’t enjoy talking about sex of any sort, and wasn’t comfortable when anyone else raised the subject.

  It seems obvious that his metropolitan colleagues, once he had moved to London and started to practise as a barrister, were more relaxed, meaning more hypocritical, about such things, not unduly distressed when some of those funny people, who as everyone but Dad agreed could be highly entertaining, hairdressers and so on, were silly enough to get caught. Dad became every inch a Town Mouse, in his Church’s handmade shoes and bespoke suits, but in this one respect he reverted to Country Mouse type.

  I only know of one person who tried to alert him to the unreliability of his ideas on the subject of homosexuality, and that was Ronald Waterhouse, a junior colleague who sometimes worked for Dad as a ‘devil’ in his days at the Bar, working informally on aspects of a complicated case and being paid directly by Dad.

  Working with devils was an arrangement that suited Dad very well. Perhaps it was a way of buying in the raw analytical power he felt he lacked, the X-ray vision of the natural lawyer. It was an intensive but also convivial system, not exactly democratic but not quite formally structured either. They all worked hard, in bursts,
and Dad napped hard too. (Napping wasn’t part of a devil’s job description.) If he was in court and it was a matter of preparing the next day’s material then he would have a nap after the afternoon session, before meeting the devil (or devils) for a drink and a briefing. They would meet again for dinner, when Dad would receive a progress report. Drinking at dinner would be moderate, by the standards prevailing. Dad would fix a deadline, perhaps for midnight, when the devil(s) would bring him comprehensively up to date. In the meantime Dad would have another nap.

  I imagine all these lubricated parleys taking place in the Grosvenor Hotel, Chester, an institution I’ve never visited but one that seemed somehow to be Dad’s spiritual home. Perhaps as the hub of the Wales and Chester circuit in his glory days as a barrister, neither Wales nor London, it was where he had the most seductive combination of ease and prestige.

  Dad was a great exponent of the Churchillian Nap, a form of refreshment that has since been rebranded the Power Nap or the Disco Nap. He felt that you should play fair with the god of sleep by getting into your pyjamas and sliding between the sheets even if you only aimed for the replenishment of five brain-charging minutes offline. When the late-night pressure was too relentless for him to risk another nap he would keep going on cigarettes, putting his head under the cold tap every half-hour or so if the nicotine alertness began to fade.

  He smoked every step of the way to the bench, and when he was told to give the habit up in the 1970s had to learn a different pattern of working. His brain needed to acquire the ability to walk again without the crutch of a cigarette, and Dad’s solution was to move the intensity of his work life into a different sector of the day, not the late-late night but the early-early morning. He would set the clock for five or even four. When a long and complicated case was over he might still get up without fully waking and sleepwalk his way to his study, where Sheila would find him and coax him back to bed.