Public bodies, private businesses and even some individuals now create, exchange and store data and communicate with each other almost entirely by electronic means. The volume of such Electronically Stored Information (ESI), even in small organisations, is immense because of the sheer ease of creation, transfer and storage.

The problem with ESI in litigation

The problem with this in litigation is that it can be difficult if not impossible for a party to gauge the scope of a “reasonable search” for ESI under CPR Rule 31.7 and PD31(2), both in relation to its own disclosure and that of its opponents.

In Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) Senior Master Whitaker, Chairman of the working party which drafted the new practice direction on ESI, has given timely and highly practical advice on how the parties and the court are to determine the scope of the search for ESI, how to make it proportionate and how to do it correctly first time, without the court having to order it to be done again at great expense.

Context and issues

The case concerns a group-action in which Opiate Dependent Prisoners seek redress from the government over the latter’s policy of ‘one size fits all’ detoxification procedures. Many prisoners complain of suffering and one is alleged to have died as a result of the policy.

The issue here was whether the Ministry of Justice, as defendants, should have to make any disclosure of ESI. They had refused to do so, despite having agreed to disclose their paper documents. This in itself made the case unusual, since the customary debate is over the extent of what is reasonable in the search, not whether the search should be conducted at all. The Master found that standard disclosure should be ordered (as will happen in the majority of cases) and hence that the defendants must conduct a reasonable search for all documents, including those in ESI.

Dealing with the practicalities

Here is the meat of the judgment. Since the defendants had provided almost no information about their ESI, no one could say with any certainty what was available, where it was, nor how much it would cost to search it, let alone how relevant any of it was. The defendants proposed that the parties and the court consider the paper disclosure and then, at some later stage, decide what more might be needed by way of ESI disclosure.

The Court rejected this. It emphasised that the extent of the search was not simply to be open-ended and that it is for the Court to control the exercise to make it proportionate to the issues at stake.

At the moment we are just staring into open space as to what the volume of the documents produced by a search is going to be. I suspect that in the long run this crude search will not throw up more than a few hundred thousand documents. (Para 27)

1. First, start with the key people ‘at the top of the pyramid’ and use a staged, incremental approach. Often, that may suffice since the key documents are likely to be in the ESI owned by these most important players.
2. Second, consider ‘key word’ searches (to be agreed) against some or all of those key players’ ESI stores. This is a relatively crude method, but it will give some indication of what might be uncovered and how much there is of it.
3. Third, with a rough idea from the keyword searches of the volumes involved, use specialists and specialist software to fine-tune the results and de-duplicate.
4. Then, fourth, you move to reviewing with real people.

The ESI Questionnaire

Importantly, the judgment annexes to it the new proposed ESI Questionnaire. This is now a publicly available document (it is unlikely to become a Practice Direction until later this year) and hence it is likely that parties will be encouraged to adopt it as best practice.

The Questionnaire is not intended as a formulaic, tick-box list adding another layer of costly bureaucracy onto the litigation process. Rather, it is a helpful guide to issues which might arise and of which only some may be relevant to a given case. Indeed, the Court’s first step will be to decide whether the case warrants using the Questionnaire at all, and if it does it may decide on a modified version of it. This should then make everyone focus, at an early stage, on what is actually helpful for the case in question. The judgment itself is an excellent example of how active case management by an involved judge can adapt the Questionnaire to the circumstances.

In summary

This is a short, succinct judgment which explains not just the steps involved but stresses the need for all parties to focus on why the ESI disclosure is necessary. The goal is not to add burdens (and costs) to cases which do not merit them, nor to force disclosure for its own sake.

But equally the judgment shows that the courts will not accept that there should be no or limited disclosure merely on the grounds that it will be expensive or inconvenient for the party concerned to provide it.

While the less technically and less technologically minded judges may have struggled with some aspects of ESI disclosure, this judgment, backed up the ESI Questionnaire, provides a clear and understandable roadmap for them, as well as for lawyers, executives and claims managers. Welcome to the future of disclosure.

As I’ve had a number of requests for a copy of it, here is the ESI Questionnaire in PDF format, taken straight from the appendix to the judgment.

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ADR (Alternative Dispute Resolution) is something that the English Courts tend to encourage in the process of litigation. Normally, at least in the Commercial Court, the parties will be required to confirm by the time of the Case Management Conference what steps they have taken to resolve the matter by way of ADR.

In the case of Fitzroy Robinson -v- Mentmore Towers [2009] EWHC 1552 (TCC), Coulson J highlighted two reasons why this can be a Good Thing.

First, he pointed to the expected narrowing of issues that ADR would most probably have brought about:

In its absence, the parties adopted diametrically opposed positions in the run-up to the trial. The distance between them only began to lessen at the start of the the trial itself. The best example of this concerned the Defendants’ case for rectification… Once the real issue became apparent, the Defendants effectively abandoned their rectification claim at the start of the trial, and sought instead to argue that, on the true construction of the Contracts, FRL were not entitled to the monthly instalments without adjustment. That argument was not only a better and more realistic submission in all the circumstances, but it should and would have become apparent to the Defendants much earlier if the parties had undertaken ADR [my emphasis].

Secondly, he pointed to the black and white allegations of dishonesty in the case, about which there was no room for havering or ambiguity — either the Claimant was lying or the Defendant was.

The nature of the allegations involving Mr Blake and Mr Thompson leaves no room for ‘fudge’; in relation to a number of the key elements of the story, everyone agrees that one or other man must not be telling the truth. It seems a pity that the parties were not able even to attempt to resolve their differences by way of ADR, so as to avoid my findings on these issues being made in a public Judgment [again, my emphasis].

In other words, ADR might well have avoided some rather disagreeable, and damaging, washing of dirty laundry in public.

So the next time you have to address the question of ADR, take 30 minutes or so think about the circumstances of the case and all the ramifications around it and see whether ADR might be more than a mere formality to be ticked off as ‘considered and not appropriate in the circumstances’ on the CMC check-sheet.

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On November 9, an en banc opinion of the Fifth Circuit Court of Appeals ruled that arbitration provisions in international reinsurance contracts are enforceable despite a Louisiana statute prohibiting arbitration agreements in insurance contracts.

In Safety Nat’l Cas. Ass’n v. Certain Underwriters at Lloyd’s the Underwriters provided reinsurance for excess policies issued to a workers compensation self-insurance fund. After Underwriters refused to recognize as an assignment of the fund’s rights to Safety National, the fund brought suit in a Louisiana federal court. Underwriters moved to compel arbitration. The court ultimately denied the motion, finding that the McCarran-Ferguson Act allowed a Louisiana statute forbidding arbitration provisions in insurance contracts to “reverse-preempt” the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and its implementing legislation, the Convention Act. The McCarran-Ferguson Act provides that no act of Congress is to be construed to invalidate, impair or supersede a state insurance law unless the act of Congress specifically relates to the business of insurance.

The Fifth Circuit reversed, holding that the term “act of Congress” as used in the McCarran-Ferguson Act did not encompass international treaties such as the Convention regardless of whether the treaty was self-executing or required implementing legislation. The court specifically disagreed with the Second Circuit opinion in Stephens v. American Int’l Ins. Co., 66 F.3d 41 (2d Cir. 1995), which had held that the implementing statute, rather than the Convention itself, was the relevant consideration and that state law could invalidate an arbitration provision in an international agreement.

The conflict between the circuits sets the stage for a possible resolution of the issue by the U.S. Supreme Court. Until this resolution occurs, the Safety National opinion constitutes the law of the land in Louisiana, Texas and Mississippi and provides substantial ammunition for non-U.S. insurers and reinsurers to obtain enforcement of arbitration provisions in the face of hostile state law.

The case is Safety Nat’l Cas. Ass’n v. Certain Underwriters at Lloyds’, London No. 06-303262 (5th Cir. Nov. 9, 2009).

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Alistair Schaff QC gave an illuminating talk on Wasa –v– Lexington at an impromptu BILA session in Lloyd’s Old Library today.

While Schaff represented the winning reinsurers he managed to convey an objective sense that the right decision had been reached. I was in tune with that since I had always found the CA decision oddly artificial and this judgment from the House of Lords strikes me as more commercially sensible.

An interesting point did arise, though. Supposing that the underlying law had always and explicitly been that of Pennsylvania – what then would have happened as regards the period of cover under the (UK law) reinsurance? In other words, how would the Courts reconcile the clash between the unusual yet legally correct (under Pennsylvanian law) finding that Lexington were liable for all loss occurring from 1942 onwards as against the very plain words of the reinsurance contract’s period clause, i.e. that it only responded to losses occurring during the policy period (for 3 years from 1 July 1977)? Schaff admitted that he did not know the answer but said that, while it would be a very close call, it was perhaps marginally more likely that reinsurers would still squeak home. He alluded to their Lordships’ comments that the period clause in the reinsurance wording was very plain, and also to the English reinsurance law position that an LOD clause is not at all far from being an express, specific provision that cover will only be available for losses occurring in that period.

Interesting. The factual matrix in Wasa was unusual and unlikely to be repeated, but that second scenario (a foreign finding at odds with English reinsurance doctrine) is not at all uncommon and one can expect this to be tested before very long, I suspect.

Emphasising that the case was all about construction, Schaff also pointed out why the ‘follow settlements’ clause in Wasa didn’t help the cedent, namely, because the clause only operates if the risk is one to which the insurance and reinsurance respond. Here, the reinsurance did not respond (because of the LOD provisions) and Lexington were thus unable to apply the follow clause.

While it seems obvious, that’s a principle worth bearing in mind. Too often, people see a follow settlements or Full Reinsurance wording and immediately conclude that cover must necessarily apply. Wasa shows quite neatly why that is not always the case.

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In a 3-0 decision the Court of Appeal has today ruled decisively that it is beyond the power of any local authority to set up and participate in a mutual insurer.

The unanimous decision of their Lordships in the case of RMP -v- Brent [2009] EWCA Civ 490 not only reinforces but goes further than the original twin decisions, Part 1 (on vires) and Part 2 (on procurement — see below). At first instance, the Court found that Brent had not shown that it had properly considered whether its area would benefit from the supposed savings to be had from participating in LAML. The Court of Appeal has now held that question to be irrelevant — all that counts is whether an authority can participate in a mutual insurer such as LAML, and the short answer is that it cannot.

RMP is an open-market supplier of insurance services to the local authority sector. LAML is a mutual insurer set up by a number of London local authorities to provide, on a monopoly basis, insurance to London authorities. RMP were invited to tender by Brent, who then abandoned the process and awarded the contract to LAML. RMP contested this decision in two ways: first, by arguing that it was beyond any authority’s powers to set up and participate in such an insurer (the vires case); second, by contesting Brent’s decision to award the contract to LAML outside the public procurement rules, which Brent did in reliance on a European decision known as Teckal (the procurement case).

Harrow and LAML were Interested Parties, and fully legally represented, in both the original hearing and before the Court of Appeal.

The vires case

Brent relied on two statutes: s.2 of the Local Government Act 2000 (the so-called ‘well-being’ power), and on s.111 of the Local Government Act 1972.

The first argument, under s.2 LGA 2000, is that an authority is permitted to do anything which might improve the well-being of its area. Brent said that the money that it hoped to save via its participation in LAML would be put to the well-being of the area for which it is responsible and hence that its participation in LAML was thus legitimate. At first instance, Brent failed in this argument because it could not show that it had properly considered whether any such savings would, in fact, be applied thus. This part of the judgment allowed other authorities, and LAML, to claim that the decision did not apply to them, but rather applied to the particular facts of Brent’s decision to participate in LAML.

That claim has now been firmly squashed. In the leading judgment, Pill LJ said that the s.2 well-being power

“…does not extend to a power to enter into the complex and somewhat speculative attempt to save money which is the mainspring of the LAML arrangement. The guarantees and degree of speculation involved, in my view take the activity proposed beyond what Parliament intended by the well-being clause” (emphasis added).

That view was shared by Moore-Bick LJ (paras. 180-182) and Hughes LJ (para. 255(ii)).

Section 111 of the 1972 Act allows an authority to do anything that is ‘incidental’ to the carrying out of its normal functions. Those normal functions might include running schools and highways in its area, and it is plainly incidental to those functions to buy insurance to allow the authority to operate safely. To buy insurance from LAML is, it was argued, simply a form of purchasing that insurance.

The judge at first instance dismissed this defence, and the Court of Appeal has done the same. Moore-Bick LJ commented that

“…participation in LAML cannot… be treated in the round as merely one recognised way of obtaining insurance with nothing to distinguish it for present purposes from more usual forms of commercial insurance… In my view membership of the company and the obligations to which it gives rise involve a significant departure from conventional insurance arrangements and are properly to be viewed in this context as incidental to the incidental.” (para. 170)

Importantly, the Court of Appeal resoundingly rejected the idea that the LAML arrangement could be saved by relying on some form of associated risk management service. Lord Justice Moore-Bick held that

“it could [not] be said that the benefits in terms of risk management were sufficient to justify participation in LAML as incidental to those functions.” (para. 172)

The procurement case

Even had it been within Brent’s power to participate in LAML, it breached the Public Contracts Regulations 2006 by failing to award the contract by means of open tender. Brent admitted the fact, but argued that it was entitled to do so by reason of the so-called Teckal exemption (named after the EU decision of the same name). The exemption applies where the authority contracts with a third party over which it exerts the same degree of control as it has over one of its internal departments and where that third party does most of its work for the authority.

The Court of Appeal found there was insufficient control by Brent (and effectively by any other authority) over LAML for the Teckal exemption to apply. Lord Justice Pill observed (at para. 131) that “the nature of the business, and the possibly differing interests of different authorities and affiliates, are antithetic to the necessary local authority control.” Therefore, any authority seeking to join LAML would have to hold a proper open, competitive tender for the award of the insurance contract (though the point is plainly moot, given that no authority has power to participate in LAML).

Since Brent awarded the contract to LAML without the requisite tender process, their Lordships held that RMP is entitled to damages from Brent as a result.

The shared services agenda

None of this affects the government’s shared services agenda, which remains vigorously in force. Indeed, Lord Justice Pill makes specific reference in his judgment (paras. 114-120) to the government’s aim in the well-being power—to reverse the “traditionally cautious approach” to “innovation and joint action”.

But his Lordship also went on to stress that Parliament had not given carte blanche to local authorities to do whatever they wish, that there must be limits on what was permissible and that “Analysis of the expression “promote the well-being” is still required to decide what the limits are”.

The limits are still there; the LAML arrangement simply lay beyond them.

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In the very recent (20 May 2009) case of Flexsys America L.P. -v- XL Insurance Co Ltd, the UK Commercial Court considered some interesting issues of overlap between different parts of the same overall programme, and in particular whether reinstatement provisions in the master cover could be used to provide extra cover for the same claim. (Short answer: No)

The Claimant, Flexsys, is the US subsidiary of a global corporation based in Belgium. It bought a master policy providing cover, including to its subsidiaries, in excess of any local policies issued to those subsidiaries.

Flexsys was insured locally under a CGL policy, and incurred legal costs of over US$2m in defending a claim brought in the US by a Korean company. It settled with local policy carriers (who expressly denied liability) for the policy limit of US$1 million, and then sought to recover the balance of its legal costs from the master policy insurers.

However, cover under the master policy was narrower than under the local policy. Memorandum E (the “Drop Down Clause”) of the master policy provided that:
>In the event of partial exhaustion of a local policy this Policy will pay in excess of the reduced underlying Limit of Indemnity. In the event of total exhaustion of a local policy this Policy will continue in force as the underlying insurance subject to the terms Exceptions and Conditions of the particular local Policy.

Flexsys argued that, the local policy being exhausted, the master policy should drop down to provide further cover for this claim on the same terms as the local policy (save for limits).

Tomlinson J sensibly rejected this argument. He held that such drop-down cover did not apply where a claim was recoverable under the local policy but not under the master policy. There would have to have been some express wording to allow for recovery where the master policy terms were narrower than those of the local policy. The true intention of the second part of the Drop Down Clause, he found, was to provide “a reinstatement of the local policy to be available to meet subsequent claims….It means that in the case of either partial or total exhaustion there is cover available from the ground up for the next claim” (emphasis added).

His Lordship also rejected Flexsys’s argument that it made no commercial sense for it to have chosen to have only US$1 million of cover in certain circumstances. Such a case was meaningless, he held, without considering further commercial questions, such as the cost of buying further cover and balancing that additional cost against the perceived risk involved.

Finally, the judge considered whether the local policy gave Flexsys cover for the legal expenses which it had incurred—it did not. Cover for ‘product disparagement’ was subject to Exclusion 2, where the insured had acted knowing that its actions would violate the rights of a third party, and/or that the material published was false. The Korean company’s claims were that Flexsys had intimidated customers into boycotting it.

>In my judgment the allegation made against Flexsys is not that it said things which turned out to be incorrect which conduct might therefore have occurred through mere negligence or recklessness but rather that Flexsys set out deliberately to injure KKPC by saying things about it and its products which it knew to be untrue. Liability in respect of such conduct is plainly excluded from the ambit of the local policy cover.

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Insurers should be wary of reliance on an apparently iron-clad warranty. Context is critical, and the courts will look beyond the mere words to discover the true intentions of the parties.

In Pratt -v- Aigaion Insurance Company [2008] EWCA Civ 1314, the Court of Appeal held that insurers were not entitled to rely on a warranty to decline indemnity. Rather, their Lordships said, one must look to what a reasonable man would have understood the parties to mean by the clause in the situation they were in at the time of the contract.

Mr Pratt owned a trawler which suffered fire damage while berthed. At the time, no crew were on board. The insurance contract with Aigaion warranted

“Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member”.

Insurers argued that the terms of the warranty were unambiguous, there had been a breach and hence they were entitled to decline cover; the owners said that this interpretation ignored the fact that the clause plainly applied only to periods when the vessel was navigating or working and, if applied literally, would lead to absurd results.

At first instance, Mackie J found in insurers’ favour and refused leave to appeal. Sir Paul Kennedy did give leave, saying “the words ‘at all times’ cannot have been intended to be read literally”.

Sir Anthony Clarke, the Master of the Rolls, noted that “any clause in a contract must be construed having regard to its context within the contract, which must in turn be set out in its surrounding circumstances or factual matrix”, and cited Hoffman LJ’s comments in ICS -v- West Bromwich Building Society [1998] 1 WLR 897: “The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean”.

While there is no conceptual limit to what might be relevant, the emphasis should be on the conventional above the fanciful (Hoffman LJ in BCCI -v- Ali [2001] UKHL 8), and the commercial over the literal (Steyn LJ in Sirius Insurance -v- FAI [2004] UKHL 54). Attention is to be placed on the actual language used, applying the ‘ordinary’ meaning of the words in question while bearing in mind the sometimes inevitable use of specialist vocabulary (Mustill LJ in Charter Re -v- Fagan [1997] AC 313).

Their Lordships found for Mr Pratt. While accepting that the court “must not invent a new bargain for the parties”, Sir Anthony found that “the underlying purpose of the warranty…was to protect the vessel in circumstances in which at least two members of the crew…could be expected to be on board.”

Those circumstances, Sir Anthony held, were probably when the vessel was navigating, manoeuvring and perhaps landing her catch, and this was a necessary qualification to the “at all times” on which insurers pinned their case. How far that qualification went was open to question, but the clause must then be decided contra proferentem, i.e. in this case against insurers.

Reinforcing the main judgment, Stanley Burnton LJ noted that the incorporated trawler wording provided cover in circumstances where it would be unlikely or impossible for any crew to be on board, such as when the vessel was in a shed or being dismantled. That, of itself, indicated that “at all times” cannot have meant “at all times” stricto sensu.

For insurers, the message is clear. While the courts will look to the words of the agreement, they are concerned above all with giving effect to the true intentions of the parties. In a clash between the two, the latter will prevail.

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London Market reinsurers have ended their long-running Commercial Court litigation with Korea National Insurance Corporation (KNIC) by agreeing to pay approximately 95% of KNIC’s reinsurance claim and to retract and withdraw all allegations of fraud and impropriety made against the North Korean insurer.

The litigation, which began in January 2007, involved a claim by KNIC to enforce in the UK a North Korean judgment for more than €44 million. Reinsurers had rejected the claim, which arose from an accident in 2005 when a helicopter crashed and destroyed a Pyongyang warehouse containing emergency relief goods.

Reinsurers’ primary defence was struck out by the Commercial Court in August 2007, a decision upheld by the Court of Appeal in October 2007, but continued to maintain both that the underlying insurance claim was fraudulent and that the Korean judgment was fraudulently obtained, in each case with the knowledge of KNIC.

The trial proper began in the Commercial Court on 12 November 2008. After submissions and evidence, including that of numerous North Korean witnesses of fact challenging the allegations of fraud, reinsurers agreed to settle the case by paying KNIC €40 million, effectively some 95% of the claim. The reinsurers and their lawyers, Clyde & Co, further agreed to retract and withdraw all allegations of fraud and impropriety against KNIC.

According to Reuters, the lawsuit is “one of several which North Korea is pursuing, with claims exceeding $150 million dollar according to some estimates, involving several calamities.”

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In the recent (24.10.08) case of Markel –v- Gothaer Allgemeine & Kontinentale the Commercial Court considered the nature and role of an agent in a dispute over a Claims Co-operation Clause. It’s an oddly fact-specific case, but there are some wider issues in play.

This was a summary judgment application by reinsurers (Markel) to dismiss a claim by the cedants (Gothaer and Kontinentale) in relation to an underlying claim on a D&O book. Markel’s basic case was that it was a condition precedent to liability that “the Reinsured shall upon knowledge of any circumstance which may give rise to a claim against them, advise the Reinsurers immediately, and in any event no later than 30 days”; that the cedant had known of the claim and had failed to notify the claim timeously; and hence Markel were entitled to decline cover.

The crux for present purposes is that knowledge.

Gothaer and Kontinentale were members of a German pool managed by VOV, a company incorporated by the pool members. This particular risk fell outside the pool guidelines, but Gothaer and Kontinentale agreed to write it if VOV could get them appropriate reinsurance. The contract was placed and the slip defined the “Reinsured” as “Gothaer Versicherungsbank VVaG and Kontinentale Versicherungs-AG as per VOV GmbH” (emphasis added).

That VOV knew of the circumstance was not apparently in issue, nor that technically there had been late notification. The debate was thus

1. “Is the definition of the Reinsured … an agreement between the Claimant [Reinsurers] and the Defendants [Reinsureds] that VOV would act as the Defendants’ agent for all purposes in connection with and relating to the Reinsurance?

2. Alternatively …, did VOV when receiving and giving notice of the…claim have ostensible authority to act as the Defendants’ agent for that and all purposes in connection with and relating to the Reinsurance by reason of the definition of the Reinsured in the Reinsurance?”

Markel argued that the phrase “as per” VOV was a definition of “Reinsured” and applied whenever the term was used in the reinsurance contract; and further that the only natural meaning of the phrase was that the Reinsureds were acting by VOV for all purposes connected with the reinsurance and that VOV was their agent for all such purposes.

Smith J did not agree. Indeed, he went on to say that the argument would have “absurd results”:

it would mean that the condition precedent was not triggered if the Reinsureds themselves knew of a relevant circumstance but VOV did not, and it would mean that the condition precedent would not be satisfied if the Reinsureds, not VOV, advised Markel of relevant circumstances. The Reinsureds would be in an impossible position if VOV ceased to exist or their business relationship with VOV otherwise ended during the currency of the reinsurance contract.

He also scotched a secondary argument by Markel that since the Reinsureds held VOV out as authorised to receive information on their behalf VOV’s knowledge was to be treated as their knowledge because of the ostensible authority thereby conferred on VOV.

The true issue, the judge said, was whether VOV as a matter of fact had knowledge of the claim in its capacity as the Reinsureds’ agent. But that was not before the Court on the summary judgment application, as you’d expect.

The main trial of the action is due to take place next month. I’ll be interested to see what happens.

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[Warning: No reinsurance content]

There’s a difference between the two, of course.  Today, it rather looks as if justice took a back seat to ‘legality’ in the Lords.

First, they approved the extradition of computer hacker and self-styled ‘bumbling computer nerd’ Gary Mackinnon to the US.  Officials there are said to wish to see him ‘fry’, though on infers not literally.  Perhaps they’ll just stick to waterboarding.

Second, they find that the SFO Director, Robert Wardle, acted ‘lawfully’ in stopping their investigation into the BAE/Saudi alleged corruption affair, though Lord Bingham did have the wit and grace to say that “whether his decision was right or wrong was not at issue, rather whether it was one he was lawfully entitled to make.”  And he was, apparently.

You get the impression that they didn’t much like coming to the view they did, but then again the 5–0 verdict tends to show that they had little choice.  I wonder how the Court of Appeal got it so ‘wrong’.

Not the English legal system’s finest hour, one thinks.

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