legal writing 01
I’ve just read through the correspondence between FEER and Drew & Napier.
As a law student who has just gone through several classes of legal writing, I must comment that the language used in the Drew & Napier letters is… well… not as nice as it could be. I’m not saying that the content ought to be nicer, it could be downright nasty for all i care, but the manipulation of the language was unsatisfactory. More elegance and class, please!
I mean, why use the words ‘cynically profit’? Why put a moralistic twist to the issue when speaking to FEER’s legal counsel? Do you really think he will feel threatened by moralistic overtones? He’s a solicitor for god’s sake. Logic, not morality.
Also, the constant jumping between ‘defamation’ and ‘libel’. Is it one, or the other? They do mean different things in law, with defamation being the broader tort and libel being the narrower (limited to written and published works).
But perhaps I’m just nit-picking.
Another thing that really gets to me - jurisdiction.
I’m not terribly clear about the rules in Singapore and/or Hong Kong, but I do know the UK/EU ones (because we’ve just gone through them in Civil Litigation, hurrah!). So here’s what i think:
If the libel is published in Hong Kong, then the injury would technically have occurred in Hong Kong. The main domicile of FEER is also Hong Kong since that’s where its offices are and where it is published, or New York since its holding company is there.
So, the correct jurisdiction would be in Hong Kong, unless FEER has instructed solicitors to accept service of legal claims in singapore, or has responded in Singapore to the claim. They are under no obligation at all to respond or to appoint solicitors in Singapore, so D&N will either have to serve it outside the jurisdiction (requiring the permission of the courts) or wait for FEER to do something in Singapore. But now that the claims have been issued, the staff of FEER are probably going to avoid Singapore like the plague, so no chance of personal service there.
And D&N can’t get a judgment in default if they never even served the damn thing.
Interesting, eh?
From the correspondence, it seems that D&N are rather used to having their letters scare the pants off the other side’s solicitors. And they’re not afraid of being condescending towards the other side’s solicitors either, although they do so object to them being condescending to their clients. wankers.
In my opinion, FEER could just stand back and do absolutely nothing. They could prepare their defences and all that, just in case, but doing nothing would mean that D&N would have to work like dogs to get the claims served in Hong Kong. And even then, FEER could dispute the jurisdiction, and have the claims moved to Hong Kong - which D&N would probably hate.
Anyway, all this is assuming that there is a valid claim (which i suspect might not be the case). Assuming that there isn’t a claim because the judge in the matter is completely unbiased and uninfluenced by the men bringing the claim thinks there isn’t, then there really isn’t anything more to talk about is there?
Apart from costs, that is.
Interestingly, the law of defamation (that probably includes libel) in Australia is such that defamation occurs not where the offending material is published, but in the jurisdiction where the reputation of the plaintiff exists. According to the HCA, since harm to the plaintiff’s reputation occurs at the point in which the offending expression is read/heard/perceived by people, it must follow that the liability is incurred within that jurisdiction.
Of course when I first heard of this judgment I was overcome with disbelief, as I thought that the consequences of forum shopping or multiple lawsuits worldwide against internet publishers would have a chilling effect on speech.
When I read the judgment however I realised that the ruling was logically consistent, and very well argued. And it turns out that the chilling effect didn’t really come about.
I think it is very likely that D&N would be trying to make arguments similar to those cited by the HCA, maybe even try to bring the Australian statement of the law into HK.
Comment by Han — October 12, 2006 @ 2:16 pm
Oh in case you couldn’t see the link to the case, its here.
http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html
Comment by Han — October 12, 2006 @ 2:17 pm
ok, sort of breezed through that case, and it’s consistent and logical because the tort of defamation (in australia, and perhaps singapore too) occurs where the harm to reputation is found… right?
D&N will probably try and use it somehow, but did you read how they dismissed all of FEER’s references to cases as being irrelevant or not applicable? i’d be surprised if they were to rely heavily on an australian case to further their cause.
Comment by ejl — October 12, 2006 @ 7:31 pm
I’d be surprised too if they try to rely on Australian cases. From what I know, that doesn’t seem to happen at all unless its to do with trade marks or copyright law.
Comment by Han — October 13, 2006 @ 9:20 am