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Blake, whilst a wholly unsympathetic figure, was at the receiving end of an indefensible, ad hominem judgment in the Court of Appeal. His appeal was supported by a Human Rights organisation and counsel acted pro bono (and was deservedly thanked for his efforts). On the state of the common law until yesterday Blake was entitled to the money. Blake won the public law point which was the only ground for the order against him in the CA. The Crown would have lost in the House of Lords had they not cross-appealed (largely at the prompting of the law lords). The cross-appeal only succeeded because the HL recognised for the first time a remedy (or should I say "secondary right"?) of account for breach of contract for "exceptional" cases. On the law in the books Blake should have won, but then we know that in the real world he was never going to get the money. At least the majority took an intellectually honest and defensible route to that solution.

This case was worthy of our highest court. I am not sure how to respond to Steve's leCarre-esque musings. I an unsure whether security for costs of the appeal was available or appropriate in this case. I am unaware of any other mode of "blocking" the appeal. In the result our public law and private law are in better shape.

Gerard McMeel
University of Bristol

On Fri, 28 Jul 2000 11:58:17 +0100 Steve Hedley wrote:

One thing that's puzzling me about Blake - why did the case reach the Lords at all?

An appeal seemed very unlikely at the court of appeal stage. Blake had fallen out with his solicitors, and seemed not to have the inclination or the money to hire others. The publishers had been taking on a stake-holder role throughout - they didn't care who they handed the royalties over to, they just wanted to know who that was. The AG had got everything he asked for, and declined to ask for a restitutionary remedy despite the CA's heavy hints that he would get it if he asked. Indeed, Lord Woolf gave the fact that "there is .. no possibility that this case will reach a higher court" as his excuse for his speech on the restitutionary aspects of the case ([1998] 1 All ER 844ab).

So what's this appeal all about? The report says that it was Blake who appealed. Now Blake certainly had nothing to lose (and a remote chance of success) by appealing, but there's absolutely no way that he could pay for it to be argued. An attempt to start an appeal could presumably have been blocked simply on the grounds that it was a waste of money. But very far from doing that, the appeal was heard, and counsel were paid for out of public funds.

So what is going on? A change of heart by the AG? Or a different decision by a new AG? Or did M, Q, P, Z, or whoever's in charge these days, have a quiet word in the AG's ear? Enquiring minds want to know.

 

Steve Hedley

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