Illegality proves no defence

Faced with a claim involving payment for advertising telephone sex lines, Appeal Court judge Lord Justice Brown decided to append as the last page of his judgment a full-colour page of the advertisements at the centre of the case which depicted naked women and included highly suggestive copy.

This aspect of Armhouse Lee Ltd v Chappell & anr alone makes it a remarkable addition to the law libraries at the Royal Courts of Justice. But the subject of the case was no less extraordinary and it was an action in which the defence was branded by Lord Justice Brown as "hypocrisy writ large".

The case involved a claim for the payment of a considerable amount of money in respect of the advertisement of telephone sex lines.

In the High Court Deputy Judge Titheridge QC had ruled against self-proclaimed porno-grapher Anthony Chappell and his company, ST Grid, for more than £700,000.

However, Chappell and the company appealed against the judgment on the basis that the promotional material covered by the claim was immoral to the point of illegality. They claimed that in these circumstances the courts, on public policy grounds, should not order payment in respect of such material.

Their argument was successfully countered by James Goudie QC and Clive Freedman, instructed by Amhurst Brown Colombotti commercial litigation partner Nigel Forsyth.

Lord Justice Brown said that to call the defence unmeritorious would "seriously understate the unattractiveness of the defendants' case".

He added that they had instigated and profited from the advertising they now claimed was unlawful. "The defence here was in truth hypocrisy writ large," he said.

Apart from the bizarre subject matter of the case, Forsyth said the speed with which the litigation was carried forward was also notable.

From the issue of the writ in December 1993, it took only nine months for the case to get to court. The speed with which the case reached trial was the result of it rocketing to the top of the High Court's floating list and was, said Forsyth, partly due to luck as well as planning.

In the months leading up to the trial there were 10 interlocutory hearings. These were mostly brought by the defendants, some with the aim of securing the relaxation of asset freezing orders obtained earlier in the litigation, others with the aim of postponing the trial date.

The interlocutory hearings brought their own lessons for Forsyth. He found himself in the witness box being cross-examined on affidavits he had sworn on behalf of his clients when securing the asset freezing orders.

"As solicitors we always tell clients about the need for accuracy in affidavits. It was, however, a reminder that at times we can find ourselves in the witness box being cross-examined on our own material," he said.

And it seems that the law lords may yet be treated to an excursion into the world of telephone sex lines. An application is currently lodged with the House of Lords for leave to appeal against the Court of Appeal ruling.