March 18, 2010
Our tale begins on 28 February 2010, where the Independent on Sunday published the following apology to Tony Baldry, a barrister and also a Conservative MP: “In our article “Tory MP accused over links to Nigerian politician” 14 February 2010, we reported that Tony Baldry MP had “lobbied” on behalf of a Nigerian politician James Ibori in writing a letter to the Foreign Secretary and others and that his involvement amounted to “political lobbying”.We now accept that Mr Baldry did not lobby on behalf of Mr Ibori, the letter was written in his capacity as a barrister, instructed by solicitors, who was acting for Mr Ibori. The letter was not written in Mr Baldry’s capacity as a MP, and we accept that there was no breach of the Parliamentary rule about Lobbying for Reward or Consideration. We apologise to Mr Baldry for suggesting that he acted improperly as an MP.”
So, as E. L. Wisty said of trappings, the Independent on Sunday had clearly got hold of the wrong load of capacities.
The whole article is no longer available; and a blogpost by the political author and blogger Richard Wilson was also taken down following a solicitor’s letter (of which more later).
Nothing in what follows in this blogpost can or should be read in any way to question any of the Independent on Sunday apology. That Mr Baldry did not write in his capacity as an MP is beyond any doubt. Furthermore, no one reading this blog – written as it is by an experienced legal writer – would expect me to write anything which is actionable in this respect – even by implication - and no average reader of this particular blogpost will infer it either.
So, as there will be no actionable meaning in our tale, we can continue.
For the Independent on Sunday apology, and the circumstances behind it, raise some interesting and important points, both amusing and serious.
The website profile
First, at the very time of the Independent on Sunday story and the Wilson blogpost, the biography of Mr Baldry on his own Chambers website itself made no mention of his areas of substantive legal practice.
Instead, it detailed his political and ministerial career in a way which might be seen as informative to contacts and also potential clients:
“Tony Baldry was called to the Bar in 1975.
“He took time away from the Bar between 1990 and 1997 whilst he was a Minister in the Governments of Margaret Thatcher and John Major.
”Ministerial appointments included time at the Department of Energy where he helped privatise the UK Electricity Industry, four years at the Department of the Environment where he was Planning Minister, and time spent as a Minister within the Foreign Office.
”Tony Baldry is a Fellow of the Chartered Institute of Arbitrators and practises as an Arbitrator and also as Counsel in Arbitrations. He also practises as a Mediator.”
And of course this emphasis on his parliamentary status was reinforced by the very name of his Chambers:
“The Chambers of Tony Baldry M.P.”
The name of the Chambers is especially important here, as there are two sets of Chambers located at One Essex Court.
The Chambers website also still states:
“Recent Heads of Chambers include Sir Ivan Lawrence QC, a leading Conservative MP for over twenty years, and Parliamentary connections are maintained under One Essex Court’s current head Tony Baldry MP.”
It would appear that on the basis of the website of Mr Baldry’s Chambers, any objective observer would also have found it difficult to identify the different capacities in which Mr Baldry acted. Furthermore, the same objective observer could have formed the impression that Mr Baldry was holding his ministerial experience out as relevant to his legal career.
However, that observer would have been wrong, and thanks to my intervention detailed below, this potentially unwelcome situation has now been corrected.
Barristers writing letters
The other aspect of the Independent on Sunday apology which intrigued me was the notion of a barrister – especially in a matter where solicitors are instructed – writing a letter.
I have never before come across it.
Settling draft letters to go out under the letterhead of the instructing solicitor or the client is common. Indeed it is sensible if one takes litigation seriously, not least as it prevents the barrister from blaming the solicitor for screwing up pre-action correspondence.
But a barrister sending a letter under their own name? Whilst there is nothing at all wrong with this, it must be unusual. In my experience it sometimes difficult to get barrister to even sign the pleadings they are supposed to put their name to.
An interview
So pondering the statements then on the Chambers website, and fascinated by the extraordinary idea of a barrister writing a letter, I asked last week Mr Baldry if I could interview him.
He telephoned me back very promptly.
He told me forcefully I was “confused”.
However, he then kindly agreed to consider questions put in email format. And, in my usual fashion, I set out the questions and answers below. (Please note he did not respond exactly in sequence and so bear this in mind when I match his answers to the appropriate question, but I do not think this really affects the meaning of the responses.)
Question: In respect of the letter you wrote to the Foreign Office on behalf of your client, did you use headed paper which referred to you as an MP?
(Here I understand the letter was on headed paper for your chambers at One Essex Court; however, as your chambers are called “The Chambers of Tony Baldry MP” and as there is another set of chambers at One Essex Court, it would appear to me that the headed paper which you used is likely to have referred to you as an MP.)
Answer: “The notepaper of 1 Essex Court is entirely anonymous and makes no mention of my being a Member of Parliament, and nowhere did the letter make any reference of mention as to my being a Member of Parliament, either directly or indirectly.”
Question: Why do you refer to you being an MP in the name of your chambers?
Answer: “As to 1 Essex Court, I am fairly certain that when Sir Ivan Lawrence, MP, was Head of the same set of Chambers, they were described as “the Chambers of Sir Ivan Lawrence, MP” and Chambers simply continued that tradition.”
Questions: Why does your One Essex Court biography list your parliamentary and ministerial experience? And why does your One Essex Court biography not mention any legal area of expertise?
Answer: “As to my entry in the Chambers website, it is some considerable time since I have looked at this, but in the light of your comments, I will review it.”
[And indeed he now has, and happily his website biography has substantially changed since my email.]
Question: Why did you write the letter on behalf of the client when solicitors were instructed?
(It is highly unusual for barristers to write any correspondence in their own name (rather than pleadings), especially when solicitors are instructed.)
Answer: “The letter was written in my capacity as a Barrister, instructed by solicitors.”
Question: Was the letter sent by post? If so, would it have a House of Commons postmark?
Answer: “The letters were sent by post and sent from Chambers.”
[I note in passing here that blogger Richard Wilson has made a FoI request just for the envelope.]
Question: Did you instruct your solicitors to write to the hosts of a blogpost which allegedly defamed you to ask the host to take the entire blogpost down? If so, why?
Here the relevant response was quite long, and of course I quote it in full:
“As you know, the Independent on Sunday published an article which was untrue and defamatory, and made a number of allegations about me, not in my capacity as a Barrister, but allegedly in my capacity as a Member of Parliament, for which the Independent on Sunday have now apologised.
“Doubtless “The Lawyer” believes in responsible journalism and it would probably have been helpful if the journalists who wrote the article had made some proper attempt to put matters to me before they published the article and gave me the opportunity to respond. If so, I think it would certainly have been more than possible to have demonstrated to them that they had got their story wrong. In fact, all that one of the journalists did was leave a message on my mobile at 2.30pm on the Saturday afternoon before publication. I returned his call within ten minutes. He was “away from his desk for a few minutes”, but I was promised that he would return my call. He never did.
“The Independent on Sunday in due course recognised that they had got their story wrong and apologised. It seemed to me that it was then somewhat bizarre for bloggers who had in no way been involved previously and who had made no attempt whatsoever to get in touch with me, simply to repeat the Independent on Sunday’s original defamatory and incorrect assertions.
“I thus asked my solicitors to write to the host of the Blogpost to have it removed, the benefit of which is that my solicitor’s letter is now there in the public domain as a matter of record.”
He then added:
“I have enormous respect for the potential of blogging to enhance public debate, but I see no justification in people who are writing blogs considering that simply because they are writing a blog, that they can write things which are defamatory, and untrue.”
There are some very good and clearly-stated points here, all well made by Mr Baldry. It potentially puts the circumstances of the Independent on Sunday story in a different light.
Addressing the host
But I was particularly relieved that he mentioned and affirmed that the solicitor’s letter was considered by him to be now in “the public domain as a matter of public record”.
For, as it is marked “strictly private and confidential”, I had actually been minded not to refer to it in this blogpost.
However, I can now point it to being posted here on the blog of Craig Murray, the human rights activist and Her Majesty’s former Ambassador to Uzbekistan. This is the letter which led to the removal of the Wilson blogpost.
One must also note at this point that the blogpost is no longer on Richard Wilson’s site.
I would like to make one serious and important point about this letter, from the perspective of someone with an interest in media law, as well as an active blogger.
One will see that the letter was not sent to Richard Wilson directly, even though he is an experienced political writer and author of two good and well-regarded books.
In my view, there was certainly no good reason for this tactic to be adopted in this instance. And, again in my opinion, this needlessly aggressive approach is contrary to the statement of Mr Baldry that he has enormous respect for the potential of blogging to enhance public debate.
Blogging may never achieve such a heady potential when complainants instruct their solicitors to take whole blogposts down, and not only the words complained of, and in doing so by writing to the hosts, and not directly to the authors.
Indeed, at the time of the threatening letter, Mr Baldry’s own website was itself not even clear on the distinction between his two capacities. It thereby seems to me to be an incorrect way to engage with a blogger also commenting on such an important distinction.
“Reputation management”
And this leads to a far more general issue.
I am not a great fan of the phrase “reputation management”. The correct function of the law of libel is to defend and vindicate reputations, and not to “manage” them.
Accordingly, libel should really have no place in taking down the other unwelcome but non-actionable statements published alongside the words complained of, regardless of whether that is the goal of the wider approach of “reputation management”. This goes for mainstream media articles as well as blogposts.
As adverse as such statements are, if they are not the words complained of, libel should simply not be used to get those taken down as well.
But ending on a happy note
Those engaged in “reputation management” should always be willing to be constructive in their engagements with bloggers. The old clumsy and confrontational ways may not actually be serving the client’s best interests.
For, as Mr Baldry found out when he engaged with me, bloggers can often offer valuable help, such as on improving a complainant’s own website.
And we will do it for free.
Allen Green writes the Jack of Kent and Bad Law blogs in his capacity as a blogger.
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