Judgement in Sony case

[nichomach]

Picked this up off the Reg; Sony have just lost their argument that thjeir consoles should not be classified as gaming devices. No news there, really. What I DID like was the postscript to the judgement; let's just say that the Court of Appeal weren't too keen on Sony's legal team...

Originally Posted by Chandwick, LJ

# I think it necessary to add some observations as to the manner in which Sony's case has been presented to this Court. In my view the skeleton argument filed in this Court on behalf of Sony goes beyond what can be regarded as acceptable written advocacy: it exceeds the bounds of propriety. The document is signed by both Mr Mark Clough QC and by M. Philippe de Baere of the Brussels bar: but it is right to say that Mr Clough accepts sole responsibility for its contents. I am not here protesting about its inordinate length, nor about its discursive quality, nor about its frequent and unnecessary resort to hyperbole; although all those unappealing features are present. My concern is with the repeated aspersions that are cast in that document on the intellectual honesty of the High Court Judge from whose decision this appeal is brought.

# In paragraph 5.9 of the skeleton argument, it is submitted that the judge has "decided that it would be more helpful to the court's analysis to find as a fact that the review decision referred to Article 12(5)(a)(iii) rather than Article 12(5)(a)(i)". In paragraph 6.1(f) it is asserted that the judge "has often completely misrepresented the text of documents". In paragraph 6.11(g) it is said that he "deliberately misinterprets" part of the review decision. In paragraph 6.13(a) one of his findings is described as "a semantic game played by the High Court" (a remark repeated at the end of the supplementary skeleton argument). And in paragraph 6.23(c), another of his findings is described as "a classic example of the trampling over the evidence in which the High Court has allowed itself to indulge".

# Fearless advocacy is one thing; intemperate advocacy is another. Advocates, once sure of their ground, must not retreat for fear of, or in the face of, judicial displeasure; and judges for their part will respect such fearlessness. None of this diminishes the courtesy which characterises the relationship between bench and bar. An advocate who means to call in question not only the reasoning but the intellectual integrity of a judge, or a judgment, must be particularly sure of his or her ground; but if it is advanced with good reason and with proper courtesy, such a critique is fully within the responsible advocate's remit. What is not acceptable is making such allegations without good grounds.

# It seems to me that the examples I have given go beyond either strong advocacy or simple hyperbole. They are damaging assertions about the intellectual integrity of the judge which no advocate should make unless he is prepared to substantiate them. In oral argument Mr Clough disavowed any intention to suggest that the judge had collateral motives for his decision. But the passages I have quoted are susceptible of no other meaning, and Mr Clough finally accepted this and apologised for them. This puts the matter to rest; but it would have been much better, as I think he would agree, if the remarks had not found their way into the appellant's skeleton argument in the first place.

http://www.bailii.org/ew/cases/EWCA/Civ/2006/772.html

Ouch. Ooyah.

[dave87]

Owned?

Though seriously, what chance did they have of winning? Games consoles arent Gaming devices....nooo... of course not.

I do like the way the judge responded however, I think it brought them down a notch.

[Rave]

Oh I love a good slapdown delivered in polite legalese.