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Background to Litigation Communication in England

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Litigation Communication

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Abstract

As a broad, general frame, this part of the book introduces the evolution of communication in the legal market in England, between 1 October 1984 and 2010. Our illustrative example focuses spatially on London, since that has been not only the administrative and financial, but the juridical capital of England. London has significant numbers of legal institutions. Legal societies as well as solicitor firms, barrister chambers, courts and legal communications service providers, such as Litigation PR practitioners, are essentials to the development of the new branch. As one of them, Richard Elsen argues, London-based PR practitioners are employed by contending parties and high-profile clients, “[…] reflecting the fact that often – although of course not always – the biggest cases are at the London High Court” (Elsen 2001, p. 40).

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Notes

  1. 1.

    On 1 October 1984, The Law Society allowed solicitors to advertise.

  2. 2.

    See for example, the activity of The Law Society and The General Council of the Bar.

  3. 3.

    Formally from 1992 (the Blue Arrow fraud case) Litigation PR practitioners first appeared on the clients’ sides in England. Earlier on in the King’s Cross Fire case (1991), for the first time in British legal history, a media specialist (Ms Sandra Hewett) provided publicity management service for British Trade Union legal representatives, such as Thompsons Solicitors, in industrial personal injury compensation claims on the claimant’s (formerly called plaintiff) side. Her professional service is remarkable, however, is not considered as typical Litigation PR. On the other hand, 2010 was also a turning point for legal services like legal communications, in general. Implementation of the regulations and legal institutions of the Legal Services Act 2007 was expected to be ready by the end of 2010.

  4. 4.

    The Act was giving rise to a more commercialized and competitive legal business implementing new initiatives and new routes for customer complaints. Some of these initiatives will be introduced in this account.

  5. 5.

    Implementation of the new regulations and legal institutions was expected to be ready by the end of 2010, 3 years from Royal Assent in 2007.

  6. 6.

    The key external concepts on closer examination are Thatcherism, deregulations, liberalization and competition on the legal market. Internal drivers of the evolution of Litigation PR to be examined are the history of public relations, journalism and mass communications in England, as well as legal communications in the English jurisdiction. Accordingly, Part II of the book also discusses how the main contextual frames such as the legal, political, cultural and economic histories of the UK affected Litigation PR evolution. In these sections the author intends to emphasize the substantial role of the evolution of these markets and concurrent thoughts on the development of Litigation Communication in England.

  7. 7.

    These are economic factors and crucial legislations on competition, market liberalization as well as governmental efforts of opening the traditionally reserved legal business.

  8. 8.

    This special style of English is based on standard English; however, containing unusual terminologies, linguistic structure and punctuation. In the course of using legal terms, this language and the forms of communication are the main as well as accepted techniques that might have effects on their argumentations in court in England. We can find detailed information on Legal English in (Haigh 2006, 2009).

  9. 9.

    The United Kingdom was created by the political union of different countries with their own legal systems with distinct histories and origins. Accordingly, there are three distinct legal jurisdictions in the United Kingdom: England and Wales, Northern Ireland and Scotland. This separation dates back to the formation of the United Kingdom through the Union of the Crowns in 1603 and the Act of Union in 1707. For more details please refer to Spencer (1989), pp. 11–18. The act guaranteed the separate legal system of Scotland. On the separate legal system of Scotland more information is available from: http://www.scotshistoryonline.co.uk/ [Accessed: 30 October 2010]. Within the UK the Northern Irish legal system is also a common law legal system. The law of Northern Ireland is similar to English law, however, with important differences. The sources of the Northern Irish law are English common law and statute law, the statutes of the Irish Parliament. On this topic please refer to Zander (2007). Ireland and Scotland also have different legal systems. For more details please refer to Spencer (1989). The Scottish civil law is based on more generalized rights and duties derive from Roman law, than the English. Civil law is about the rights and obligations of individuals and organizations, the general principles that were adopted from Roman law. This means that it aims to sort out arguments and problems between people, and other organizations, such as companies. Criminal law, on the other hand, punishes people for things they’ve done to others. The courts are very important in the Scottish legal system because they can change the law. For more detailed information please refer to Spencer (1989). In the range of sources and influences constitutional tradition and legislation of Parliament (Acts of Parliament), The Human Rights Act 1998 and European law are also significant sources of UK law including Scots law. European Law was brought directly into UK law by the European Communities Act 1972.

  10. 10.

    The other legal system is the Scottish.

  11. 11.

    Legal systems in other parts of the world are different systems (e.g. the Continental system) derived from Roman law with a long tradition of legal codification (Spencer 1989).

  12. 12.

    Since 1189, the English system has been described as common law (Partington 2008).

  13. 13.

    It is the ultimate body of appeal for all criminal and civil cases in England and Wales and Northern Ireland and for all civil cases in Scots law. Any decision the Supreme Court makes is binding on every other court in the same jurisdiction.

  14. 14.

    It took over this function from the Appellate Committee of the House of Lords in October 2009 (Department of Constitutional Affairs, July 2003, Constitutional reform: a Supreme Court for the United Kingdom Available from: http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/consult/supremecourt/supreme.pdf [Accessed: 30 October 2010].

  15. 15.

    In English common law, judges are responsible for applying a mixture of precedent and common sense to build up a body of consistent, common law (Spencer 1989; Zander 2007). The legal system of England and Wales gives great precedential weight to common law. The main principle of this legal concept is that it is unfair to treat similar facts differently. The doctrine of bounding to follow previous decisions as precedents makes English courts really peculiar. The body of precedent is called ‘common law’ and it binds future decisions.

  16. 16.

    As seen, Litigation PR evolved in the US and spread quickly through the countries of the English jurisdiction, such as England. Another rationale of the author’s decision is that basic reviews concerning this account derive mainly from these countries.

  17. 17.

    The latter is a case law system. It is a particular form of the common law system (based on English common law) operating with federal courts (Spencer 1989).

  18. 18.

    The author places emphasis on the evolution of this vital legal concept later in this book due to the fact that it has exercised a fundamental effect on the evolution of Litigation PR in England.

  19. 19.

    These stages have been the main grounds for extensive Litigation PR practice.

  20. 20.

    For more details on the evolution of the jury in England and Wales please refer to Bostock and Thomas (1999), Doran (2002), Vidmar (2000), and Vidmar and Hans (2007).

  21. 21.

    According to seminal works, such as The Law of Juries written by Gertner and Mizner (1997) and World Jury Systems edited by Vidmar (2000), the modern jury system is based on the English law from the late Middle Ages.

  22. 22.

    The particular system of today was “brought to England by the Norman conquerors” (Erlanger 1970, p. 345). It emerged in England in the eleventh century when Henry II began to employ average citizens in civil cases (Burke 1998, p. 2). After the seventeenth century the jurors had to decide on the basis of the evidence presented in the courtroom during the trial (Gertner and Mizner 1997). The basic elements of the jury system in England came to America after the seventeenth century when King James I “granted a charter to the Virginia Company” (Burke 1998, p. 2). By 1878 the United States Supreme Court ruled on the definition of an impartial jury and the forms of prejudicial influence, both vital in the topic this account addresses (Vidmar 2000). The decision of the Supreme Court was that newspaper articles read by the juror prior to hearing testimony is sufficient for that person to be impartial (for more details please refer to US Supreme Court, REYNOLDS v. U.S., 98 U.S. 145 (1878) (Retrieved February 3, 2009 from http://caselaw.lp.findlaw.com, for Legal Professionals). The current American model of the Supreme Court is a so-called ‘totality test’. The court takes everything into account to make determinations on the fairness of a jury given the specifics of media coverage of the case (Vidmar 2000). In the course of introducing the appropriate legal considerations in this contextual section the author would mention the results of an intersection between psychology and the justice system called forensic psychology. It involves understanding law (particularly criminal law) in the relevant jurisdictions (e.g. English common law or continental European jurisdictions) in order to be able to interact appropriately with judges or legal representatives. Typical forensic settings are testifying in court, reformulating psychological findings into the legal language of the courtroom and providing information to legal personnel in a way that can be understood. We can find detailed information about forensic psychology in Coulthard and Johnson (2008) and Nietzel (1986). Moreover, the author would mention the concept of forensic linguistics in order to understand the legal context of the evolution of Litigation PR. It is a field of applied linguistics, dealing with the relationship of language and law (especially criminal law). It can also deal with making a comprehensive legal language to laypeople. On the other hand, the language of legal processes, concerning the practice of litigation communication, is used in cross-examination, evidence presentation, judge’s direction, summing up to the jury, the questioning process in court and in other areas such as police interviews. We can find detailed analysis on this topic in Gibbons (2003) and Kurihara (2003).

  23. 23.

    Scholars of juries and jury trials presented some seminal works. For more details please refer to Erlanger (1970) and Simon (1977). The papers of Kalven and Zeisel on The American Jury (1966) or Burke (1998) are also worthy of note.

  24. 24.

    On the contrary, legal concepts such as the inquisitorial system represented a new, distinct theory in the Continental legal systems in Europe. In the inquisitorial proceedings the judge will collect evidence. He or she has to investigate a complaint, “find out the facts and then do what ought to be done according to law” (Spencer 1989, p. 20). Therefore, the strategies of Litigation PR practitioners in the Continental legal system have to be very different, if any. The adequate sources have already been mentioned in Part I of this account. In those titles on the Continental legal jurisdiction’s business literature on litigation communication, written by Gostomzyk (2008) and Holzinger and Wolff (2008) in German, we could read about the effective professional management of this ‘paradigm’. For more information please refer to Gostomzyk (2008). The first book on German Litigation PR was written by local PR practitioners. On the topic please refer to Holzinger and Wolff (2008).

  25. 25.

    As it is described for example by Vidmar (2000), who extensively discusses the American and British common law juries from both historical and comparative perspectives, following or breaching substantial legal rules (e.g. The Contempt of Court Rule in England), when communicating during the litigation procedure, are important impacts on the evolution of Litigation PR that is presented in this book. For more details on the legal literature on jury deliberation in England please refer to Geragos (2007), Ingman (2006), Partington (2008), and Slapper and Kelly (2009).

  26. 26.

    In this section we mostly refer to the most frequently cited standard reference books in England such as Abel (2004) and Zander (2007).

  27. 27.

    It consists of partners, assistant solicitors and legal executives. By the late thirteenth century attorneys (as a general title) managed the legal proceedings. The solicitor profession first emerged only in the sixteenth century (Spencer 1989). By the end of the seventeenth century there were several categories of attorneys in England. The functions of attorneys (excluding barristers) were put in the same branch of lawyer, called solicitors from The Judicature Act of 1873 (Zander 2007, p. 727).

  28. 28.

    In 2009, there were 145,381 solicitors on the Roll, an increase of 4.1 % on the year before. Since 1979, the total number of solicitors holding practising certificates has grown by 222.8 % (facts and key statistics about the solicitor profession were provided by The Law Society. Available from: http://www.lawsocietymedia.org.uk/facts_about_the_profession.aspx [Accessed: 30 September 2010]).

  29. 29.

    The author had the chance to visit some of them during the data collection process.

  30. 30.

    The most famous publication of the solicitor’s profession in the UK.

  31. 31.

    Available from: http://www.thelawyer.com/directory/uk-200-table-top-100/ [Accessed: 1 October 2010].

  32. 32.

    There were 5,642 barristers in England and Wales in 1987. By 1999, the number rose to 9,932 and to 14,364 by 2004. In December 2009 there were 12,241 self employed and 3,029 employed barristers (15,270 altogether) in England and Wales (Facts and key statistics about the practising Bar. Available from: http://www.barcouncil.org.uk/about/statistics/ [Accessed: 30 October 2010]).

  33. 33.

    The origin of the Bar dates back to the thirteenth century. They occupied the buildings of the Knights Templar in London. By the end of the fourteenth century there were four societies in existence due to the fact that from the very beginning they had to join an Inn of Court to practice their profession: Inner and Middle Temples, Lincoln’s Inn and Gray’s Inn (Zander 2007, pp. 701–702).

  34. 34.

    However, until that time barristers had received instructions directly from the client.

  35. 35.

    The consequences of the legal professions’ spatial characteristics will also be described in our chapters in great detail.

  36. 36.

    The largest law firms in the UK: Clifford Chance, Linklaters, Freshfields Bruckhaus Deringer, Allen & Overy and DLA Piper (The Lawyer Magazine. Available from: http://www.thelawyer.com/directory/uk-200-table-top-100/ [Accessed: 1 October 2010]).

  37. 37.

    Mergers and acquisitions (M&A) business refers to the buying, selling and combining of different companies.

  38. 38.

    For more details on this topic please refer to Cole et al. (2010).

  39. 39.

    At the same time, 115,475 solicitors held practising certificates (79.4 % of those on the Roll). Since 1979, the total number of solicitors holding practising certificates has grown by 222.8 % at an average annual rate of 4.0 %. In 2009, 41.9 % of private practice firms were located in London and the South East of England. For more information please refer to Cole et al. (2010).

  40. 40.

    It was set up in 1967.

  41. 41.

    It operated between 1976 and 1979.

  42. 42.

    Consequently, after several decades of resistance to get reformed, renewed and being isolated from the challenges of the market economy the legal profession finally had to face some important changes. Governmental investigation in the legal business was inevitable because of the efficiency of the time and money consuming litigation procedures. Another critical point to come under fire was the increasing number of complains of the public on the unsatisfactory services (e.g. legal services massively overcharged by solicitors), costs and accessibility provided by the legal profession or the conveyancing monopoly of solicitors.

  43. 43.

    Immediately after the report the government changed the rules and broke the age-long privilege and monopoly of solicitors. It forced the profession into competing with licensed conveyancers in the future (Merricks and Wallman 1990, pp. 1–8).

  44. 44.

    Mrs. Thatcher served as PM of the UK from 1979 to 1990.

  45. 45.

    Privatisation as one of the most important parts of her policy was not mentioned in her 1979 manifesto. However, later on gas, electricity, telephony, British Airways and British Rail were all privatised (Howe et al. 1977; Kavanagh 1990; Letwin 1992). That kind of Conservatism is closely associated with thinkers like Keith Joseph, Friedrich Hayek and Milton Friedman.

  46. 46.

    Keynesians hold that the government can stimulate growth by increasing demand through credits and public spending. Whilst the supply-side economic policy argues that the government should intervene to create a free market by lowering taxes, privatizing state industries and increasing restraints on trade unionism. For more details please refer to Kavanagh (1990).

  47. 47.

    He was reappointed by her successor, John Major in 1990.

  48. 48.

    The main features of The Green Papers were the efforts of a committee on the reform of legal education, commenting on lawyers’ education, training and codes of conduct. In addition, it contained suggestions on the rights of audience and in terms of conveyancing a proposal on the system of authorized practitioners who met certain standards (Smith 1989). The response of the judiciary, the Bar and the Law Society to The Green Papers in the debate in the House of Lords on 7 April 1989 was very negative (Thomas 1992, p. 5). As a result of the debate The White Paper was published by the Lord Chancellor. It had a different point of view referring to the needs of the clients and the requirements of legal services instead of the competition between the branches of the legal professions (Thomas 1992).

  49. 49.

    Also, the monopoly on starting and conducting litigation as an advocate would have been certified by any recognized authority and the extension of rights of audience in the higher courts (such as High Court, Crown Court, Court of Appeal, House of Lords) to solicitors if they were qualified to conduct litigation as solicitor advocates (Smith 1989, pp. 527–534).

  50. 50.

    Accountant, former deputy governor of the Bank of England and chairman of Prudential insurance company.

  51. 51.

    The Office of Fair Trade (OFT) is the consumer and competition authority of the United Kingdom. As a non-ministerial government department it was established in 1973 by a statute (The Fair Trading Act). The main objective of the authority is to make markets work well for consumers.

  52. 52.

    The title of the document is Consultation on the future regulatory framework for legal services in England and Wales/Response from the Office of Fair Trading (June 2004).

  53. 53.

    There was a very heavy lobbying by the Law Society and the Bar Council as part of the legislative procedure during the debate.

  54. 54.

    The Legal Services Act 2007, as a major review, was about giving rise to a more commercialized legal business. The Review process (officially called, The Clementi Review) started in 2003. In July 2003, Sir David Clementi was given the task of undertaking an independent review of the regulation of legal services in England and Wales. It is now known as the Clementi Report (Review of the Regulatory Framework for Legal Services in England and Wales. Available from: http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/index.htm [Accessed: 12 December 2010]). The Review is considered as a really important one concerning the development of legal communications in England. The importance of consumerism, complaints about legal services such as receiving poor service, arrogance, getting a much higher bill than expected or lack of communication increased a lot. As a crucial part of the The Legal Services Act 2007 the importance of the Alternative Business Structures (ABS), or as it is called ‘Tesco Law’, has to be emphasized. The new legislation has paved the way for non-lawyers such as financial managers, IT specialists, senior marketing and public relations personnel to hold an equity stake in law firms. This could happen due to the fact that the owners and the legal disciplinary managers of the legal practice need not be the same from 2010. With this point of the Act the government opened the way for banks, or supermarkets to buy law practices. In this setting there are several opportunities for public relations to become an important actor of the market. The new partnership structure might have a positive impact on the acceptance of expert knowledge, respect and professional development not only in business development related fields but in the communications occupations such as public relations.

  55. 55.

    Indirectly, the Clementi Review (Clementi 2004) certainly shapes the face and growth of the market for legal communications especially for legal PR, promoting legal services in the English jurisdiction. Moreover, the Legal Services Act 2007 will obviously have a major impact on the legal communications market, in general. Litigation PR market is less affected by this legislation due to the fact that the review is not about the civil and criminal procedural rules but about giving rise to a more commercialized legal business.

  56. 56.

    Access To Justice by The RH the Lord Woolf, Master of the Rolls (Final Report to the Lord Chancellor on the civil justice system in England and Wales), July 1996, available from: http://www.dca.gov.uk/civil/final/index.htm [Accessed: 21 March 2011].

  57. 57.

    In 1994, the Lord Chancellor instructed Lord Woolf, then Master of the Rolls, to review the civil litigation system. He reduced the cost of litigation, made the system just, fair, quick and understandable. Before the CPR the system of civil litigation was slow, expensive and complex.

  58. 58.

    The reforms were based on two detailed reports by Lord Woolf (June 1995 and July 1996). As a result of the reform, the Civil Procedural Rules (CPR) used by the Court of Appeal, High Court and County Courts in civil cases in England and Wales changed and new rules came into force on 26 April 1999. Available from: http://www.dca.gov.uk/civil/final/index.htm [Accessed: 21 March 2011].

  59. 59.

    Available from: http://www.allenovery.com/publications/en-gb/Pages/The-Impact-of-the-Woolf-Reforms-in-the-U-K-.aspx[Accessed: 21 March 2011].

  60. 60.

    For example on British Media Law for more detailed information please refer to Goldberg et al. (2010).

  61. 61.

    As a result, the decision of a case establishes principles of law that act as an authority for future cases of a similar nature. This legal process is called precedent.

  62. 62.

    Attorney-General v. Times Newspapers Ltd. [1974] AC 273, 308, [1973] 3 All ER 54, 7.

  63. 63.

    The Sunday Times v United Kingdom (Series A No 30), European Court of Human Rights (1979.80) 2 EHRR 245, 26 April 1979.

  64. 64.

    Thalidomide (Contergan, Softenon or Distaval) was invented and marketed by the German company, Grünenthal GmbH in the 1950s.

  65. 65.

    Between 1958 and 1961 expectant mothers took a drug, called Thalidomide (Distaval in the UK) for morning sickness. It was developed by Grünenthal, a German company, and distributed in Britain by Distillers (Biochemicals) Ltd. Taking the drug led to deaths of babies in the womb and extreme deformities. Nearly 500 children survived in Britain. They are now in their forties. The Sunday Times contributed to the campaign in the 1970s. In the case (called the Thalidomide case) they wanted to reach adequate compensation for the British victims. Challenging Distillers’ negligence in distributing the drug and pressing for proper compensation by media coverage risked contempt of court. An injunction on the newspaper’s efforts was overturned only after it was taken to the European Court of Human Rights. At the end of the case British victims received reasonable compensation and an apology from the government in 2010.

  66. 66.

    Attempts to win compensation started very early, in the 1960s by the families. The low compensation offered to victims by Distillers caused a national outcry after it was made public by The Sunday Times campaign for the victims. The parents fought for better compensation. In the late 1960s Distillers offered 370 victims a small amount, £3.25 million over 10 years, about £15,000 for the worst affected. However, they would have needed £100,000 to support them for life. Under the pressure of The Sunday Times media coverage, Distillers reconsidered its offer, a deal worth £32.5 million (Telephone interview with Stephen Lock, Moscow, 27/11/2009).

  67. 67.

    The first article was published under the headline “Our Thalidomide Children: a Cause for National Shame”. For more details please refer to Fisse and Braithwaite (1984).

  68. 68.

    Attorney-General v Times Newspapers [1974] AC 273.

  69. 69.

    The story of the ‘Thalidomide case’ was told by the Sunday Times in The Insight Team of the Sunday Times (1979).

  70. 70.

    Sunday Times v UK (1979) 2 EHRR 245.

  71. 71.

    Contempt of Court Act 1981 Section 1. Available from: http://www.legislation.gov.uk/ukpga/1981/49 [Accessed: 21 February 2011].

  72. 72.

    Contempt of Court Act 1981 Section 1. Available from: http://www.legislation.gov.uk/ukpga/1981/49 [Accessed: 21 February 2011].

  73. 73.

    Contempt of Court Act 1981. Available from: http://www.legislation.gov.uk/ukpga/1981/49 [Accessed: 21 February 2011].

  74. 74.

    Contempt of Court Act 1981. Available from: http://www.legislation.gov.uk/ukpga/1981/49 [Accessed: 21 February 2011].

  75. 75.

    See for example, Nilsson and Sjostrom (1972), Rosen (1979), and The Sunday Times Insight Team (1979).

  76. 76.

    Two main forms of defamation are libel [a written and published statement (article) which infers damaging remarks on a persons reputation] and slander (spoken words which have a damaging effect on a person’s reputation).

  77. 77.

    A statement is defamatory if, when said about a person and published to a third party, it would lower the addressee in the eyes of the members of society generally and make ordinary people think less of that person. In the English common law jurisdiction, the spoken form of defamation (slander) refers to a false and defamatory spoken statement. The written form of defamation (libel) refers to any maliciously or falsely written words or images. Modern libel and slander laws descended from English defamation law (Zander 2007). In libel cases both proceedings (civil and criminal) were implemented, however, criminal proceedings were extremely rare. Therefore, criminal libel in the English jurisdiction was abolished in 2010 by the Coroners and Justice Act 2009 (Coroners and Justice Act 2009 is available from: http://www.legislation.gov.uk/ukpga/2009/25/contents [Accessed: 30 September 2010]). For more details please refer to Edwards et al. (2003).

  78. 78.

    In terms of control of the media, defamation cases are very important. As we probably remember, defamation law is to protect the reputation of a person from defamatory statements. Ultimately a jury (or sometimes a judge) will decide what the statement is saying about the individual and whether it has unjustifiably injured his reputation.

  79. 79.

    McDonald’s Restaurants Limited v. Helen Marie Steel and David Morris [1997 EWHC QB 366].

  80. 80.

    It was an English lawsuit filed by McDonald’s Corporation against environmental activists Helen Steel and David Morris (often referred to as “The McLibel Two”) over a pamphlet entitled What’s wrong with McDonald’s: Everything they don’t want you to know (The pamphlet is available from: http://www.mcspotlight.org/case/factsheet.html [Accessed: 21 March 2011]). McDonald’s hired private detectives to infiltrate the organization, and ultimately threatened to sue the individuals who were distributing the pamphlets. This publication was critical of the company and made a number of allegations against McDonald’s. “Although McDonald’s won two hearings of the case in English court, the partial nature of the victory, the David-vs-Goliath nature of the case, and the drawn-out litigation embarrassed the company” (The McLibel case is available from: http://en.wikipedia.org/wiki/McLibel_Case#cite_note-1 [Accessed: 21 March 2011]). Morris and Steel faced formidable obstacles under English law due to a combination of restrictive substantive libel laws, denial of a jury trial, the potential for very high damage awards and legal costs and a lack of legal aid For more details please refer to Nicholson (2007). In 1998, a documentary film was made about the case, also titled ‘McLibel’. This was updated in 2005 after the verdict of the final appeal. On 15 February 2005, the pair’s 20-year battle with McDonald’s came to an end. McDonald’s costs in the law suit have been estimated to be about $10 million, including over £6,500 per day of trial for their team of top English libel lawyers. Although a McDonald’s official release commented that they were “broadly satisfied” some have suggested that it was at best a Pyrrhic victory. For more details please refer to Nicholson (2007). The case became a public relations disaster around the world, thanks in large part to the Internet and the extended press coverage and articles titled like this one, “David vs. Goliath/The Sequel”, in the International Herald Tribune on 5 May, 1997.

  81. 81.

    Reynolds v. Times Newspapers Ltd and Others [1999] UKHL 45; [1999] 4 All ER 609; [1999] 3 WLR 1010 (28th October, 1999).

  82. 82.

    In Reynolds v. Times Newspapers [1999] 4 All ER 609, HL legal case, the former prime minister of Ireland sued for libel over reports in English newspapers that he had lied both to his colleagues and to Parliament. These were published a few days after his resignation. The House of Lords said there was no special defence applicable to media reports of political matters but the ordinary defence of qualified privilege. The essence of this type of defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. Freedom to disseminate and receive information on political matters is essential to proper democracy. But reputation is an integral and important part of the dignity of an individual. So it is in the public interest that the reputation of public figures should not be debased falsely (Rozenberg 2005).

  83. 83.

    This article was then published in the UK. The UK version omitted Reynolds’ statement on the event so he brought an action for defamation. Impartial comments on the article were unavailable because of the factual nature of the article. In 1996, a High Court jury found in favour of Reynolds but he was awarded only one penny in damages. On the other hand, the judge left him with an estimated £1 million legal bill (RTE News, 21 June 1999). The situation was fairly complex due to the fact that the media must have shown that they behaved responsibly. So their duty was to publish the material. At the same time, members of the public had a legitimate interest in reading the facts. Therefore the publication might expect a successful defence against allegations.

  84. 84.

    It is a defence in defamation law. Qualified privilege protects publishers if they can prove that they had a duty to communicate the information in public (Rozenberg 2005).

  85. 85.

    For more detailed information please refer to Douglas v Hello No 1 [2001] 2 WLR 992; Douglas v Hello! No 2 [2003] EWHC 786 (Ch).

  86. 86.

    On 18 November 2000, the very well known film star couple were married at the Plaza Hotel, New York. As soon as their engagement was announced there was intense media interest in this high profile event. There was particular attention from rival magazines OK! and Hello!. As Lord Phillips of Worth Matravers MR, the presiding judge of the case claimed, “both magazines provided photographs about royal, sport, entertainment and social celebrities” (Interview with Lord Phillips, London, 12/01/2010). Both magazines approached the Douglas’s with a view to get the exclusive right to publish photographs of the wedding reception with 120 family members, a large number of friends and celebrities from all over the world. The film stars wanted to grant it only to one publisher (OK!) because they wanted to control the media coverage and wanted to protect their privacy (Black 2007). On 18 November, one paparazzo, Rupert Thorpe, son of the former British liberal politician Jeremy Thorpe whose case is briefly described earlier in this book, took several photographs with a view to selling them. He contacted another colleague who approached Hello!. The publisher agreed to pay for the photos and publish them exclusively in Hello! in London. At the same time in November 2000, the Douglas’s obtained a temporary ban from the High Court. The court lifted the injunction and claimed that the arrangement by the couple to sell pictures to one magazine did not entitle another magazine to publish other photographs from a paparazzo.

  87. 87.

    The case was a landmark decision on privacy rights because it recognised for the first time that the courts have a duty to protect privacy rights.

  88. 88.

    More information on the case is available from: http://www.5rb.com/case/Douglas-v-Hello!-Ltd-(No.8)-(HL) and http://en.wikipedia.org/wiki/Douglas_v_Hello!_Ltd [Accessed: 21 March 2011].

  89. 89.

    A famous super-injunction was raised by Carter-Ruck libel lawyers in 2009 on behalf of Trafigura, an Amsterdam-based company trading in oil. They wanted to prohibit the media reporting on a toxic waste scandal that happened in Cote d’Ivoire in 2006. In May 2009, The Guardian and BBC News reported on the scandal. Trafigura denied the accusations and wanted to sue for libel. On 12 October 2009 The Guardian reported that it had been prevented by an injunction from covering details made in a parliamentary debate by MPs. The case and the gagging order faced a huge public protest and hostile reaction and the case was described as an outrageous, grotesque scandal (The Guardian, 13 October 2009). For more details on the case please refer to http://www.guardian.co.uk/media/2009/oct/20/trafigura-anatomy-super-injunction [Accessed: 21 March 2011].

  90. 90.

    The institution grew out of Family Court cases where a super-injunction prevented the media from revealing the identities of parties involved in disputes. “Then it developed further as a result of privacy law” (The Guardian, 13 October 2009).

  91. 91.

    Libel lawyers like Carter-Ruck very often argue for injunctions being granted on privacy grounds. They state that London, as the libel and privacy capital of the world, is very attractive for people who want to prohibit and silence the media from reporting on the details of their problems. An injunction could be a very effective tool for these parties due to the fact that failing to comply with an injunction results in criminal and civil penalties and payment of damages. As James Robinson of The Guardian states, “Injunctions have become one of the most effective tools powerful individuals and corporations reach for when they want to silence the media” (The Guardian, 13 October 2009).

  92. 92.

    In the course of the examination of the rise and historical development of public relations in England the writings of Jacquie L’Etang and Magda Pieczka are preferably used. For more details on this topic please refer to L’Etang (1998a, b, 2004, 2008), L’Etang and Pieczka (2006), and Pieczka 2002. In addition, McNair, Miller and Dinan as well as other authors on public relations, institutional and professional histories are mostly examine the economic, political and business conditions of the expansion of the PR industry in England from the 1970s. For more details please refer to Bedarida (1991), Briggs (1985), Curran and Seaton (2010), McNair (2004), Miller and Dinan (2000, 2008), Miller (1999), and Pugh (2002).

  93. 93.

    Most of the studies have been published by Jacquie L’Etang since the mid-1990s (L’Etang 1998a, b, 2001, 2004, 2005, 2008; L’Etang and Pieczka 2006).

  94. 94.

    The author would like to reflect on this statement later in this book.

  95. 95.

    They both are media researchers and examined the evolution of PR from political and economic directions with a very distinctive and expanded market oriented view.

  96. 96.

    As far as the PR industry is concerned, post-war PR practitioners considered themselves as experts, “who could help outsiders understand their organisations” (L’Etang 2008, p. 331).

  97. 97.

    As far as political communication is concerned, Margaret Thatcher and the Conservative Party made James Gordon Reece publicity director of the party at the end of 1978 (Kavanagh 1990). He appointed Saatchi and Saatchi Garland Compton as the party’s advertising agency (Kavanagh 1990).

  98. 98.

    In this section we are going to talk about the sociological aspects of the spinnable media and the history of media in England briefly due to our different focus of this book. The development of journalism, journalists driven by news and the market of commentary created by journalists, driven by their own opinions, are interesting topics for scholars. Becoming part of the age of spin and the evolution of journalism is also worth investigating.

  99. 99.

    An obvious subsequence upon the new Thatcherite policy was the new business minded attitude.

  100. 100.

    Wapping is in the London Borough of Tower Hamlets which forms part of the Docklands.

  101. 101.

    This episode was called a ‘Newspaper Revolution’ and the ‘Death of Fleet Street’ (Tunstall 1996).

  102. 102.

    As far as the consequences of the set of Thatcherite policies are concerned, those were designed to produce a strong state and a government strong enough to resist the ‘selfish’ interest of pressure groups. The government wanted to reach this “via law and order, traditional moral values, a stable currency, and a free economy (via cuts in state spending and taxes, reducing state intervention, and privatization)” (Kavanagh 1990, p. 9).

  103. 103.

    This statement is based on Philip Lewis’s conclusion on the Analysis and Change in Legal Services. Accordingly, “a legal service may be described as any service which a lawyer performs for his client and for which professional responsibility rests on him” (Lewis 1982, p. 71).

  104. 104.

    By the middle of the 1980s, City law firms and City PR firms were ready to follow their clients. At the same time they could supply their best legal and legal communications services (mainly legal PR) for the financial market.

  105. 105.

    Judicial decisions prior to the First World War considered solicitor communication, such as advertising as the main form of misleading the public (Attanasio 1984).

  106. 106.

    On the topic see for example the work of Sir Thomas Lund, A Guide to Professional Conduct and Etiquette of Solicitors (1960).

  107. 107.

    “A Report on the Supply of Services of Solicitors in England and Wales in Relation to Restrictions on Advertising” and the document for barristers titled “A Report on the Supply of Barristers’ Services in Relation to Restrictions on Advertising”.

  108. 108.

    The main UK competition law statute prior to the enactment of the Competition Act 1998. The Fair Trading Act 1973 has been repealed in its entirety following the enactment of the Enterprise Act 2002. Available from: http://www.reckon.co.uk/open/Glossary [Accessed: 12 December 2010].

  109. 109.

    Law firms’ individual clients were typically non-recurrent clients with little knowledge of legal expertise. In contrast to this, corporate business clients tended to be more sophisticated both in legal and in management matters than the individual ones. Companies were well-informed in their use of lawyers, in different trends and business communications services such as advertising or legal public relations.

  110. 110.

    At the end of 1983 the Council of the Law Society permitted individual solicitors to advertise once a week in local newspapers. The “dramatic expansion of conveyancing and legal aid works fuelled the growth of the [legal] profession” (Abel 1989, p. 301). External pressure remained enormous on the Society. The Office of Fair Trading (OFT) also wanted urgent government interference in the regulation of individual advertising.

  111. 111.

    It suggested to abolish solicitors’ conveyancing monopoly and allowed them to advertise and promote themselves for conveyancing work. As a turning point, the bill was taking the form of the Administration of Justice Act (1985) which “resulted in an immediate and significant drop in the cost of conveyancing which put many solicitors’ firms out of business and left others in a precarious financial position” (Creaton 2003, p. 118).

  112. 112.

    As far as this collective, institutional advertising is concerned, the first PR department of The Law Society, originally, was established in 1956. For more details please refer to Fennell (1982). Since the 1950s the increased number of lawyers and the erosion of their monopolies enhanced professional interest in stimulating demand (Abel 1989, p. 323). From the 1960s, the collective advertising of the Society was recognized as an equally important communications means through which the legal market might be defended and supported in its expansion. In 1976, after the publishing of the Monopolies and Mergers Commission’s report on solicitors’ advertising, another public relations campaign was started by the Society. It was titled “the national information campaign for increasing public understanding and the image of the profession” (Fennell 1982). The effort of the Society culminated in the “Whatsinaname” campaign in 1977 and 1978 supported by the Master of the Rolls. The Keeper or Master of the Rolls and Records of the Chancery of England (Master of the Rolls) is the second most senior judge in England and Wales, after the Lord Chief Justice. For more details, please refer to Sainty (1993).

  113. 113.

    However, today’s solicitors have the same right after being authorized as solicitor advocates and can get to trial and to court.

  114. 114.

    Interview with Desmond Browne QC, London, 02/12/2009.

  115. 115.

    As a result of the new regulations, the communications practice in the barrister profession has become more open and liberalized. Nowadays, we see how barristers are promoted both by the directories and by themselves legitimately. So far as individual promotion is concerned, Chambers Directory and also the Legal 500 Directory are good examples.

  116. 116.

    In this suggestion the government followed the language of the British Code of Advertising Practice of the Advertising Standards Authority (Hill 2003). Advertising in the legal profession by the principles of the Authority was an important step towards the acceptance of communications occupations and different forms of legal communications.

  117. 117.

    It was just after the restrictions were removed on advertising and marketing in the legal field in 1984. Bans were removed in professional services such as accountancy about 3–4 years earlier.

  118. 118.

    The main forms of legal advertising became the quoting of fees in advance of carrying out the work, promoting legal businesses, branding and building the image of legal firms with the help of advertising activities, generating news and providing publicity by the media.

  119. 119.

    Available from: http://www.barstandardsboard.org.uk/media/1353125/word_version_of_full_code_of_conduct___annexes_jan_2012_.pdf [Accessed: 3 January 2012].

  120. 120.

    In addition, there are threats to the Bar as a self-employed referral profession. As can be seen, the Bar no longer has a monopoly on advocacy. They lose work because of some solicitors who are able to appear in the Criminal Courts.

  121. 121.

    For instance, websites or professional magazines like The Lawyer or different advertising, PR and event marketing tools.

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    Thomas Beke

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Beke, T. (2014). Background to Litigation Communication in England. In: Litigation Communication. Springer, Cham. https://doi.org/10.1007/978-3-319-01872-0_3

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