Kid Gloves (13 page)

Sitting alone, like my father before me, I must
huddle round the faint glow thrown by my little layman's Anglepoise and struggle to make sense
of the shapes I see. I take this to mean that a void contract – void ‘
ab initio
' –
would be one that could never have been performed. A voidable contract is one that can be set
aside if its terms are not implemented, and this is the category to which the appeal judges
decided Gilbert O'Sullivan's agreements with Gordon Mills and MAM properly belonged. They could
be set aside because the obligations laid on the defendants had not in fact been discharged.

The emphasis here seems to shift from an
unconscionable contract (and one in which Mars-Jones J detected not just
inequality of bargaining power but ‘plain, unvarnished deceit') to one that was acceptably
framed but defectively discharged. Even so, the effect was not to let Mills and MAM off the
hook. The Lord Justices accepted that there was a fiduciary relationship, and that the
defendants were in breach of it. They were therefore not entitled to profit by their wrongdoing.
There was discussion about how amends might be made.

It turns out that you can't have rescission
without the possibility of
restitutio in integrum
. Translating roughly: there's no
point in saying a contract never happened unless you can restore the status quo as it was at the
moment of signing. It's meaningless to turn the clock back if everything has been changed by the
contract itself.

The use of Latin in legal argument and judgment
has been drastically reduced since 1982. The effect is to make the proceedings less opaque, but
they will always be opaque to some extent by virtue of being governed by past decisions, and
hinging on distinctions foreign to daily life.

A legal system based on precedent is a monument
to creative rot, a sort of cultural compost heap dating back, notionally, I suppose, to the
Conquest. Not everything rots down into principle at the same rate, so that the decisions of a
Denning, say, can resist the process in the same way that eggshells and avocado stones do,
retaining their integrity and withholding their nutrients from the rich millennial mulch of
insight and vested interest.

Just as the terminology of the early 1980s now
seems very stiff, so the language of earlier cases referred to during the appeal proceedings has
an additional fustiness that can sometimes be beguiling. Dixon, CJ, in
Alati v. Kruger
(1955) refers to the disaffirmance rather than rescission of a contract.

Purely as a word, I prefer ‘disaffirmance' to
‘rescission' (which sounds like bad news you might hear at the dentist's),
and I've been disaffirming things like mad since I learned it, though made uneasy by not
knowing if there's a shade of meaning involved. Does it make a difference that Dixon was Chief
Justice of Australia? I know Australian law derives in some way from English, but how does
Australian precedent impinge on English case law? My ignorance seems to increase with every
moment of enlightenment. I've written with more confidence about Japanese cinema than I do about
English law.

I do feel qualified to assess rhetoric, and the
award for the most stirring utterance of the appeal must go to Michael Miller, QC, for the
plaintiffs, who said:

He who seeks equity must do equity. In the
present case it is inequitable that the first plaintiff should seek to recover the whole profit
made by the defendant companies as a result of the agreements, without being prepared to permit
them reasonable remuneration for the very valuable services they have rendered in turning him
from a relatively unknown song-writer to an internationally famous star.

(O'Sullivan had been working for the Post Office
when he signed the contract.) Strongly put. What's sauce for the plaintiff must be sauce for the
defendant.

Or as Lord Wright put it in
Spence v.
Crawford
(1939), ‘Though the defendant has been fraudulent, he must not be robbed, nor
must the plaintiff be unjustly enriched, as he would be if he both got back what he had parted
with and kept what he had received in return.' Yet this is more or less what the court of first
instance had ruled, and even on appeal the defendants were held to be entitled only to ‘a
reasonable remuneration including a small profit element'. The underlying idea seems to be that
someone who has been defrauded should sue for
damages rather than relying on
equity to make everything good. There's a grey area here, though, since in equity the term
‘fraud' embraces not only actual fraud but certain other forms of conduct falling below the
standards demanded by equity. Conduct of this sort is known as ‘constructive' fraud. One of the
examples of such a fraud would be a transaction procured by undue influence, or where one party
is in breach of a fiduciary duty to another. Exactly what was held to have been the case here.

The judgment in the lower court was neither
upheld
in toto
, nor comprehensively overturned. Instead it was upheld in part and the
judge's order ‘varied', with significant adjustments made to it. Mars-Jones J ‘fell into error'
when he accepted counsel's argument about the appropriateness of compound interest. (Excepted
from this were the secret deductions made by MAM (Music Publishing) Ltd from monies taken in
Germany and New Zealand. It was right that these sums be repaid with compound interest.)

One of the cases referred to in the appeal was
Erlanger v. New Sombrero Phosphate Co.
(1878). There isn't enough poetry in the law
for me to risk leaving it out. Might that be a guano enterprise? The market value of birdshit
has lessons for us all.

Dad would rather have had his order ‘varied' than
thrown out, I'm sure, but he can't have enjoyed the experience. If I've battled through the case
and the appeal in as much detail as I can manage, and with as much clarity, it's partly to
confront for my own benefit how different his world was from mine. In fantasy he would annex the
world of books in his retirement. He also encouraged me to think of myself as a potential
lawyer, but it isn't so. My wheels grind differently, and my ego is hungry for a different
food.

The case of
O'Sullivan & Another v.
Management Agency & Music Ltd & Others
was a significant one, though it hardly
dominated the headlines. Dad would have listened respectfully to submissions
made on behalf of a writer or an artist, but un-justice done to a musician, a performer moreover
who wrote his own material, somehow struck him more forcibly and may have been part of what
caused him to ‘fall into error'.

Possibly there was an element of spurious
underdog identification at work. Gilbert O'Sullivan had arrived in London by way of Waterford
and Swindon, Dad by way of Llansannan and Aberystwyth. They had both come from nothing. After
the death of our neighbour Os(wald) Terry, Dad would reminisce about his own early life using
the phrase ‘When I were a little lad …' which had been Os's trademark. Dad seemed not to
realize that he was advertising the inauthenticity of his remembered struggles with the use of a
borrowed tag, though I'm sure that Os picked it up somewhere too, just as the monologue of his
we enjoyed so much as children, about Albert and the Lion, turned out to be Stanley Holloway's
really.

Counsel for the defendants were working hard
during the appeal to argue down the large sums whose disgorgement had been ordered by the court
of first instance. They stated their objection to the master tapes being returned to O'Sullivan,
but concentrated their efforts, understandably, on arguments that could save money right
away.

It may be that the real importance of
O'Sullivan & Another v. Management Agency & Music Ltd & Others
was the
precedent it set in the matter of master tapes. An anomaly of the case seems to be that Gilbert
O'Sullivan ended up in possession of these valuable items, though if he had taken independent
legal advice and signed a much more advantageous contract he would have enjoyed no such benefit.
This is more or less a technicality in the case itself, because O'Sullivan had since signed
other contracts that meant he then yielded up the master tapes to other record companies, but
perhaps it expanded the
possibilities for others. A singer/songwriter in an
oppressive contract who only stood to win back his copyrights might think twice, but the
prospect of getting ownership of master tapes would exponentially increase the attractiveness of
a lawsuit.

There were musicians who took their cue. Sting
sued over inequitable contracts (before the appeal in
O'Sullivan & Another v.
Management Agency & Music Ltd & Others
, I think), with Mars-Jones J presiding.
This was in the early days of the soundbite as an art form, and I imagine Dad must have wished
he had worked harder on a truly quotable dictum when he remarked, after the defendants had
finally capitulated to Sting and settled, ‘This has been a very trying trial.' Elton John also
sued Dick James Music, though before a different judge.

In all this I am feeling my way, humiliated by an
inability to distinguish the core issue from the contingent circumstances, the steak from the
parsley garnish. It has been a Socratic process, to learn how much I don't know, and I fully
understand the feelings of the ancient Athenian citizenry, who might acknowledge that Socrates
was a cultural treasure without equal, but would cross the road or remember a previous
engagement rather than be drawn into dialogue with him.

From the dawn of pubescence if not before, my
assigned role in the family was peacemaker, a not uncommon casting for a middle child, but Dad
further characterized me as dreamy and unworldly, only too likely to be exploited by more savvy
folk. Watching me as a child flitting from the piano keyboard to a book and the television, then
back again, he would tell me that I had a butterfly brain. I wish I had had the wit to tell him
I had something much more useful, a bee brain.

In many areas of life he simply ignored evidence
that contradicted his fixed ideas, but this wasn't one of them. After the moment in 1980 when he
learned that I had a book contract
with Faber for the book eventually titled
Lantern Lecture
, he never seriously questioned my judgement. Did I start riding a
motorbike (in 1988) when I was too old to be classed as a boy racer, too young for it to qualify
as a midlife crisis with handlebars? Dad was confident I'd ride safely. Did I venture into an
unconventional family life (in 1991) by having a daughter with a friend? Dad was delighted. He
would have preferred a grandson but was prepared to wait for a further instalment of this
pleasing twist in the family saga. He didn't imitate the ritual cry of his beloved Fred
Flintstone –
Yabba-dabba-doo!
– but that may have been because he was too busy calling
for champagne.

His earlier idea of me as dreamy simply fell to
the ground, and he decided that I must have been planning the Faber coup more or less from the
egg. Useless to say that good luck and social contacts – thank you, Rosemary Hill – had led me
first of all to a magazine editor (Craig Raine of
Quarto
) and then, thanks to Craig's
urgings, to a publisher, with the ragbag of fact-based fictions that was pretty much all I'd
ever attempted. My dreamy side was still there, though I took care to defend it behind
intellectual barricades, topped with all the razor wire I could rustle up.

The problem area was my sexuality, something not
touched on in that first book, since Dad had always had such a horror of men who were attracted
to men. He was more than a standard-issue homophobe, not far from a homophobe's homophobe. If
there were Annual General Meetings of the Homophobia League then he would be an honoured guest
if not keynote speaker, guaranteed any number of brief manly pats on the back.

Part of this was an unworldliness of his own. He
was one of the very few judges of his day who hadn't gone to public school. He had studied at St
John's, Cambridge, but only for
a year after the end of his time at
Aberystwyth. He didn't enjoy talking about sex of any sort, and wasn't comfortable when anyone
else raised the subject.

It seems obvious that his metropolitan
colleagues, once he had moved to London and started to practise as a barrister, were more
relaxed, meaning more hypocritical, about such things, not unduly distressed when some of those
funny people, who as everyone but Dad agreed could be highly entertaining, hairdressers and so
on, were silly enough to get caught. Dad became every inch a Town Mouse, in his Church's
handmade shoes and bespoke suits, but in this one respect he reverted to Country Mouse type.

I only know of one person who tried to alert him
to the unreliability of his ideas on the subject of homosexuality, and that was Ronald
Waterhouse, a junior colleague who sometimes worked for Dad as a ‘devil' in his days at the Bar,
working informally on aspects of a complicated case and being paid directly by Dad.

Working with devils was an arrangement that
suited Dad very well. Perhaps it was a way of buying in the raw analytical power he felt he
lacked, the X-ray vision of the natural lawyer. It was an intensive but also convivial system,
not exactly democratic but not quite formally structured either. They all worked hard, in
bursts, and Dad napped hard too. (Napping wasn't part of a devil's job description.) If he was
in court and it was a matter of preparing the next day's material then he would have a nap after
the afternoon session, before meeting the devil (or devils) for a drink and a briefing. They
would meet again for dinner, when Dad would receive a progress report. Drinking at dinner would
be moderate, by the standards prevailing. Dad would fix a deadline, perhaps for midnight, when
the devil(s) would bring him comprehensively up to date. In the meantime Dad would have another
nap.