The Attorney General Lord Goldsmith kick-started a clash of the legal titans after he tried to gag the media from reporting a fresh angle on the cash for honours scandal – and the saga continues.
Philip Havers QC of One Crown Office Row, acting for Goldsmith, went head-to-head with The Guardian’s silk Andrew Nicol QC of Doughty Street Chambers last week (5 March); not before going a round with the BBC’s barristers Andrew Caldecott QC and Manuel Barca, both of One Brick Court, three days earlier.
Goldsmith wanted to silence the BBC over the revelation that Lord Levy, the Labour Party’s chief fundraiser, urged one of Tony Blair’s most senior aides Ruth Turner to shape the evidence she gave to Scotland Yard as it investigates allegations that honours were exchanged for loans to the party.
Caldecott and Barca, who were instructed by the BBC’s head of legal Sarah Jones, did not manage to stave off Havers’ arguments, which persuaded Mr Justice Wilkie that the BBC should be gagged.
Public speculation into what the story might be intensified, but for the legal profession questions were being asked as to whether Wilkie J’s decision was the correct one.
Partner Mark Stephens, head of media at Finers Stephens Innocent, believed that the decision to gag the BBC was fundamentally wrong.
“The whole purpose of injunctions is to stop cases from being influenced, but if there’s no prosecution pending then there’s nothing to injunct against,” said Stephens.
Dispute resolution partner Deirdre Walker, who is Norton Rose‘s London managing partner, however, felt that the area was a little less black and white.
“Cash for honours is such a high-profile investigation that it’s not only a question of whether any court case would be prejudiced, but whether the charges themselves might be influenced,” said Walker.
As the debate raged on, The Guardian decided to bite the bullet and publish.
While the presses were rolling, The Guardian’s in-house lawyer Nuala Cosgrove, soon to be the newspaper’s director of editorial legal services, held emergency talks with Nicol as to how they could fend off Goldsmith’s attempts to place the paper under an injunction.
At around 7pm on 5 March, as The Guardian’s delivery vans were being loaded, Nicol and Havers found themselves in front of Mrs Justice Swift.
Havers argued that The Guardian’s story was similar to what the BBC wanted to report so a gag should be set in place.
Swift J was not convinced and found in favour of Nicol, who argued that it would be unusual to allow an injunction to be granted when no charges had been brought and that restrictions should not be allowed unless there was a substantial risk of serious prejudice to any future court case.
Once the story was out there, Levy, being at the centre of the reports, felt he needed to speak out – enter his solicitor, Neil O’May from Bindman & Partners.
O’May issued a statement on behalf of his client in relation to the content of The Guardian’s article, and subsequently the BBC’s coverage, after the broadcaster’s injunction was lifted at 2pm on 6 March.
The statement denied any wrongdoing and lambasted the media for being “partial, contradictory, confused and inaccurate”.
It continued: “There has been a regular stream of leaks to the media during this year-long investigation, all of which have presented a prejudiced and distorted view.
“Cumulatively, these leaks and reports have created a climate which does not allow for any fair assessment of the investigation.”
Just four days ago (8 March) Barca carried on the BBC’s fight, which wanted to report why it had been censored.
Barca, however, did not manage to land the killer punch, leaving the broadcaster’s lips sealed for the time being at least. It is expected that the BBC will continue its fight to reveal the truth.
Nuala Cosgrove, in-house lawyer at The Guardian
Cosgrove, soon to be the newspaper’s director of editorial legal services, was instrumental in securing permission to run The Guardian‘s story. As the presses were rolling she instructed Doughty Street Chambers to fend off the Attorney General’s threat to gag the newspaper’s story on the cash for honours affair.
Andrew Nicol QC, Doughty Street Chambers, barrister for The Guardian
Nicol argued successfully for The Guardian that it would be unusual to allow an injunction to be granted when no charges had been brought and that an injunction should not be allowed unless there was a substantial risk of serious prejudice to any future court case.
Andrew Caldecott QC, One Brick Court, lead barrister for the BBC
Caldecott led the assault for the BBC in its failed attempt to stop the injunction against the broadcaster. The silk has previously helped the BBC stand its ground over its coverage of the ’45-minute claim’ dossier, which led to the death of David Kelly.
Manuel Barca, One Brick Court, barrister for the BBC
Barca assisted in the BBC’s first round with the Attorney General. His involvement continued last Thursday (9 March) when he unsuccessfully argued to Mrs Justice Swift that the broadcaster should be allowed to report why Mr Justice Wilkie made his decision. He maintained that, now the basis for the injunction had gone, there needed to be a “compelling reason” for further restriction.
Sarah Jones, BBC head of litigation
Jones was instrumental in instructing the BBC’s line of defence from One Brick Court against Lord Goldsmith. Although failing on two attempts to remove the whole injunction, Jones continues to fight for the ban to be lifted.
Philip Havers QC, One Crown Office Row, barrister for the Attorney General Lord Goldsmith
Havers, having successfully persuaded Wilkie J that a gag on the BBC was needed, failed to convince Swift J in relation to The Guardian through his argument that the newspaper’s situation was similar to the BBC’s.