Kid Gloves (12 page)

It had been shrewd of O'Sullivan to project a
gormless image at the start of his career – like an overgrown Bash Street Kid with his flat cap,
pudding-basin haircut and long grey shorts. It had certainly got him noticed. But that was as
far as his shrewdness went. He had signed a management contract without taking independent
advice, and was being exploited in any number of ways. He was being paid a very modest allowance
even after becoming a successful recording artist. For a long time he idolized Gordon Mills,
occasionally even acting as babysitter for his daughter Clair, whose name he commemorated in one
of his best-selling songs. An emotional dependence made him slow to act on his suspicions even
when evidence of wrongdoing began to pile up around him.

The question for the judge was whether it was
right to compensate this innocent for his self-inflicted financial wounds. He had signed a
contract, and if he was foolish enough not to read it or ask for it to be assessed by a
qualified third party then you could argue that he had forfeited the right to any intervention
by the law. It could almost be a proverb:
the tightrope walker who cuts up his safety net in
order to make a string vest should not be surprised to hit the ground with great
force
.

O'Sullivan couldn't get out of his obligations as
neatly as a much cannier musician, Arthur Lee of the 1960s' San Francisco group Love, who was
able to flourish his birth certificate and instantly invalidate the contract he had signed as a
minor.

All that seemed to invalidate Gilbert
O'Sullivan's contract was its monstrous unfairness, which doesn't necessarily have legal force.
An agreed set of operations must be carried out
before a resolution can be
reached. A judge is a sort of weaver bird, picking through the twigs of statute and precedent
offered by the advocates for the parties involved, masticating them intellectually then gluing
them together to build the nest in which he will lay the egg of his judgment.

The aspect of the law which seeks to ‘mitigate
the rigour' of common law is equity, and this was the paper in his Bar Finals that had won Dad
his highest marks. As far as I understand it, which is hardly at all, common law and equity are
like the complementary cerebral hemispheres of legal decision-making, with right-brain equity
continually modifying the inhumanely precise discriminations of left-brain common law.

For his judgment in
O'Sullivan & Another
v. Management Agency & Music Ltd & Others
Dad relied heavily on Lord Denning's
codification, in
Lloyds Bank Ltd v. Bundy
(1974, reported 1975), of the various
exceptions to the rule that signatories to a contract can't just walk away.

There are cases in our books in which the
courts will set aside a contract … when the parties have not met on equal terms – when
the one is so strong in bargaining power and the other so weak – that as a matter of common
fairness, it is not right that the strong should be allowed to push the weak to the wall.

This seems both promising and slightly empty. When
does the individual ever meet an institution on equal terms? Whether it's a customer approaching
a bank or a writer signing up with a publisher, bargaining power is so unevenly distributed that
the word ‘power' itself seems comical, even if this crazy-golf playing field goes by the name of
‘the ordinary interplay of forces'.

Nevertheless Denning proposed that there was such
a thing as an ‘unconscionable' transaction. An individual so
placed as to be
in need of special care and protection might in the event be exploited by stronger agencies.
Undue influence might be a consideration in deciding whether this was so. He was careful to
stipulate that undue influence was possible without active wrongdoing. Self-interest was enough.
In deciding whether a transaction was unconscionable it would be relevant to determine whether
independent advice had been sought. Independent advice can't guarantee a balanced transaction,
but the lack of it offers unfairness an opportunity.

It was a poignant moment to be recapitulating
Denning's defence of the individual against institutional pressure. The day Mars-Jones J gave
reasons for his judgment in
O'Sullivan & Another v. Management Agency & Music Ltd
& Others
, 22 July 1982, was only a week or so before the near-legendary Denning's own
last day in court. He had announced his retirement as Master of the Rolls, not exactly a
voluntary departure from office but a political necessity after the Society of Black Lawyers
took exception to questionable assertions in his book
What Next in the Law
. There was
no question of his retirement going unmarked. He made a farewell speech to a court full to
bursting with his colleagues (there were three hundred of them). A historic stepping-down, ripe
in honours, with a hint of slow-motion defenestration.

Despite his reputation as the people's judge,
Denning faced two ways. He was both liberal and illiberal. Perhaps the office has this Janus
element inherent in it, there being no consistent way of resolving the conflict between
individual rights and the imperatives of polity.

That's why I have my doubts about Geoffrey
Robertson's full-throated paean to Dad (‘a red-robed angel of mercy') in
The Justice
Game
, however much I welcome it personally. As he sees it:

A, B and C were free, not
as a result of their own courage (which was a precondition) or of their campaign (which gave
them courage, but did not help the courtroom battle): they owed their release to a judge
robustly indifferent to the State. Other judges, it is true, might not have recognized the
oppressiveness of the indictment, or have called a halt to the case in the same way or at all.
But for an era which is remembered for wrongful convictions and the liberties taken by the
security services, the action of Mars-Jones is worth remembering, and worth celebrating. It
says something for a system when the State, with all its power bent on conviction, cannot
intimidate the courts or make prosecutors flinch from the duties of fairness.

I feel the need of a ‘necessarily' before
‘intimidate' in that last sentence, at the risk of taking some of the shine off it.

It's true that Denning could be very concerned
with the protection of ordinary citizens, but he was also capable of arguing (in 1980) against
those imprisoned for the Birmingham pub bombings being allowed to challenge their convictions.
His reasoning was that if an appeal failed, a lot of money had been wasted, while if it
succeeded,

it would mean that the police were guilty of
perjury; that they were guilty of violence and threats; that the confessions were involuntary
and improperly admitted in evidence; and that the convictions were erroneous … That was
such an appalling vista that every sensible person would say, ‘It cannot be right that these
actions should go any further.'

No mention of individual rights accompanied either
outcome. There was just a calculation of the damage done to the public balance-sheet and the
public confidence. It would be bad for
the national mood if malpractice was
exposed – but this was not Dad's view in matters of public probity.

By the same ignoble logic, it would have been
wrong to prosecute the Obscene Publications Squad in 1976, since the proceedings would reveal
they had been bought by the smut-merchants they were paid to keep down. It was as if rats had
taken over the board of Rentokil and replaced the poison in traps across the country with
multivitamins. This news might very well upset the company's shareholders, but how was that an
excuse for keeping them in the dark?

When giving judgment in
O'Sullivan &
Another v. Management Agency & Music Ltd & Others
, Mars-Jones J relied on Lord
Denning for the chords (so to speak), but he had to make sure the tune of this particular case
fitted them. In what sense was Raymond O'Sullivan, professionally known as Gilbert O'Sullivan,
‘an individual so placed as to be in need of special care and protection'? (There exists no
general duty of care, and no general principle of enforceable fairness, just a special
dispensation in exceptional circumstances.) A standard type of this individual would be the
‘expectant heir', someone who has assets he or she is unable to realize in time of need, but can
transfer to someone else – greatly below their eventual value, as it may be – in exchange for
ready money. O'Sullivan's talent as a writer qualified him as an expectant heir, entitled to be
rescued from the consequences of his own decisions.

O'Sullivan was certainly unworldly, happy just to
be making music, to be selling records, to be getting a reputation. He was given £10 a week
spending money and lived in a cottage on the grounds of a substantial property owned by his
manager. Somewhere in all this lurks the idea that Gilbert O'Sullivan was the child-man of his
early image-making, not yet ready for long trousers, technically old enough to sign a contract
but
still a minor in psychological terms. He was being treated more like a
ward of court than an autonomous adult.

The Bash Street Kid image actually seemed to suit
him, certainly in terms of his bony face, better than the approximation to a hunky look that
followed it. Fluffed-out hair doesn't work for everyone. He alternated unconvincingly between
cosy jumpers and shirts open to the waist. No-one seemed to know if he was cuddly or sexy or not
much of either, as he went through the available permutations of styling.

Having determined that the contracts should be
put aside as void and unenforceable, Mars-Jones J directed that the master recordings be
delivered to the plaintiff. Then he assessed the appropriate damages, and here he was in danger
of going too far. He had already said that O'Sullivan had been ‘fleeced' by Gordon Mills. Now he
ruled that MAM should pay back all the profit made from the singer and his songs, with compound
interest. A. J. Bateson QC, counsel for the plaintiffs, referred him to a ruling of Lord
Denning's from 1975 (it's
Wallersteiner v. Moir
, if you're hungry for a reference) in
which he stated that ‘in equity, interest is never awarded by way of punishment. Equity awards
it whenever money is misused by an executor or a trustee or anyone else in a fiduciary position
…' Mars-Jones J accepted this, saying, ‘I have found there was a fiduciary relationship
here'.

He seemed to be equating a management company
with a trustee, who would not be entitled to profit from the monies he handled. MAM, though, was
in business to make money from the representation of its clients (who included Tom Jones and
Engelbert Humperdinck). Mars-Jones J's directions did not recognize any legal element of profit.
If the damages awarded weren't explicitly punitive, it wasn't easy to understand them in any
other spirit.

N. A. Strauss, representing
the First to Fifth Defendants, tried to protest: ‘My Lord, I accept that your Lordship has
jurisdiction to order interest on that basis, but I submit that it is inappropriate in the
circumstances …'

He tried to spell out the flaw in the judge's
reasoning, but Mars-Jones J was, as he said, ‘not attracted' by his proposition. He wouldn't
budge. After another couple of attempts, Mr Strauss could only say: ‘My Lord, I have made my
submission. I do not think I can take the point any further.'

I can find some sympathy in my heart for Mr
Strauss. When there was something Dad didn't want to hear he could generate quite a force-field
of negative interest. If he was ‘not attracted' by a proposition there was a low hum in the air
and the fitments began to rattle.

Mr Strauss's argument would have to wait for a
hearing in a higher court. In 1984 there was an appeal in
O'Sullivan & Another v.
Management Agency & Music Ltd & Others
, heard before Lord Justices Waller, Dunn
and Fox. In their representations the defendants, or the relevant lawyers, found fault with
absolutely everything that had been decided in Dad's court. That's one advantage an appeal
against judgment enjoys over a family argument – nothing is lost by saying ‘And another thing
…' They objected to the notion that there was a fiduciary relationship between Gilbert
O'Sullivan and his manager, to the voicing of personal criticism, to the transfer not just of
copyrights but of master tapes, and above all to the fixing of compound interest as the
appropriate mechanism for returning MAM's profits to the man who had generated them.

There was a certain amount of routine legal to
and fro. Counsel for the plaintiffs proposed that the proper approach was that adopted in
Peter Pan Manufacturing Corporation v. Corsets Silhouette Ltd
[1964]. Counsel for the
defendants felt rather
strongly that the plaintiffs could not rely upon the
support offered by
Peter Pan Manufacturing Corporation v. Corsets Silhouette Ltd
[1964].

The legal term for returning profits after the
event is rather lovely. MAM was being required to ‘disgorge' the money, a word that suggests a
snake unhinging its jaws and yielding up some half-digested goat.

The disgorgement required of MAM was drastic. By
making two changes to the system of repayment (factoring in past Corporation Tax and calculating
simple rather than compound interest) the appellants sought to reduce the amount due by over
four million pounds.

The original hearing had been long and intricate,
the appeal brief but formidable in the intensity of its reasoning. The judge of first instance,
sitting alone, had ruled that the contracts were void. The higher court was in effect an
incandescent tube powered by three Lord Justices wired in parallel, legal luminaries whose
individual wattage was already formidable. They disagreed with Mars-Jones J, defining the
contracts as not void but voidable, being unenforceable so far as unperformed.