Gresham College Lectures

Taking on a Corporate Giant: David v Goliath Legal Cases

April 13, 2022 Gresham College
Gresham College Lectures
Taking on a Corporate Giant: David v Goliath Legal Cases
Show Notes Transcript

Many people are inspired by stories of individual litigants, often with few financial resources and little assistance, taking on large corporations in court and fighting for their rights. 

This lecture will explore some of those stories, from Thomas Cook to the islanders in Barbuda, and from the perspective of a lawyer who has represented many Davids against many Goliaths.


A lecture by Leslie Thomas QC

The transcript and downloadable versions of the lecture are available from the Gresham College website:
https://www.gresham.ac.uk/lectures-and-events/david-goliath

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- Tonight, we're going to be discussing taking on a corporate giant, the David and Goliath stories. Most of you will know the famous story about David and Goliath, which you'll find in the Bible, Samuel 17. It tells a story of how David, a young shepherd boy defeats Goliath, a towering champion of the Philistines with a single slingshot, and goes on to become the king of Israel. The phrase David and Goliath has now been passed on in English lexicon to denote the underdog situation where a person faces an adversary much bigger, much stronger than they are, similar to what we lawyers sometimes call an equality of arms situation. Now, in my career, I've represented many Davids against many Goliaths. I've represented many ordinary people taking on the might and power of large institutions, people who've risked everything, who've got into fights against the odds. In the courtroom, sometimes David prevails over Goliath, but sometimes he doesn't. We're going to explore this evening in a few examples of individuals battling powerful and wealthy institutions, but it is important to understand that in real life, the underdog doesn't always win, and I would be doing a disservice to future lawyers and to the a public if I pretended that every case was a feel good story where right triumphs over might. It is not. We operate in a legal system which was built by and for powerful elites, and where the odds are generally stacked against our clients. On the other hand, when they do win, and sometimes they do, ordinary people taking on powerful interests, they have changed the world for the better. The law reports are full of the stories of ordinary, everyday folk who've kept up their fight for justice even when the road ahead seemed hopeless, and who have ultimately prevailed. Before we turn to look at some of the examples of cases, we're going to look at private companies and public authorities as defendants in civil litigation, and compare and contrast these two type of defendants. English law, English civil law is divided into public law and private law, and private law is a body of law that regulates relationships between private individuals. It includes contract law, taught law, the law against unjust enrichment, for example, and it goes on, so on. When you sue someone for damages, for example, for breach of contract or for negligence, that is what's referred to as a private law claim. Now, although private law is concerned with relationship between private individuals, it also equally applies to state bodies. It's very common to bring a private law claim against a state body. For example, many of the cases I do, if a police officer, for example, assaults or wrongly arrested, you might bring a private law action against the police for torts or civil wrongs of battery and assault, false imprisonment, to be awarded damages compensation. That is a claim governed by private law, even though it involves the exercise of state power. Equally, however, you might bring the same type of private law claim against a private company if one of the employees of that company, for example, assaults you. In short, private law binds both private and public actors. Public law, public law, on the other hand is the body of law that controls and regulates the exercise of state power. The high court has a supervisory jurisdiction over public authorities, which individuals can invoke by bringing a claim for judicial review. For instance, if a public authority is failing to perform its public duties, or is acting in a way that exceeds its legal powers, you might bring a claim for judicial review against it in the high court. Public law imposes certain general principles on the exercise of state power, such as public authority must act rationally, must take into account relevant considerations, and leave out of account irrelevant considerations, and must act in a way that is procedurally fair. In a claim for judicial review, the high court can make what's known as a caution order, caution the public authority's decision, or an order requiring that the public authority do something. That's known as a mandatory order, or an order prohibiting the public authority from doing something, and that's referred to as a prohibiting order. In general, judicial review only applies to public authorities, not against private companies. So you can bring a claim for judicial review against, for example, Her Majesty's Revenue and Customs, and Metropolitan Police, or even the Home Secretary, but you can't bring a public law claim against Tesco's, or Royal Dutch Shell, for example. There are one or two rare exceptions to this, for example, where a private company may be exercising public functions. In those circumstances, that might be amenable to judicial review. Another key tool in the English legal arsenal, which we discussed in detail in the last lecture is the Human Rights Act 1998, which makes it illegal for public authorities to breach our rights under the European Convention on Human Rights, and gives us the possibility of obtaining damages for breach of our human rights. Now, like judicial review, the human rights act only applies to public authorities, not to private companies, so again, you can bring a Human Rights Act claim against the Metropolitan Police or the Home Secretary, but not against Tesco's, or in my example, the Royal Dutch Shell. Similarly, as we discussed in the last lecture, the jurisdictions of the Commonwealth Caribbean, where I also practice, each have a constitution which protects certain fundamental rights, and allows individuals to bring actions for breach of their rights. Again, a constitutional claim can only be brought against a public authority, not private companies. We can see, therefore, that English law distinguishes between private and public realms, and that there are, there is a whole body of law which binds public authorities, but does not bind private companies. However, it isn't to understand that in our capitalist society, corporate power and state power are often intertwined. Sometimes you can bring legal proceeds against a public company directly, such as where it commits a tort that's a civil wrong against you, or where it breaches a contract, which you have of the company. Other times you might be bringing an action against the state in which the company is an interested party, such as when you are bringing a judicial review, for example, challenging a planning decision, where the planning authority decision to allow an environmentally damaging development. In such a case, the relevant planning authority is the defendant, but the developer, the private company, is an interested party. On other occasions, you might be bringing litigation against the state because of what a private company has done. For example, if you have a private prison contractor, or a private asylum accommodation provider breaches rights, you might want to bring a judicial review, or a Human Rights Act Claim against the Justice Secretary, or the Home Secretary, who are responsible in public law for what their contractors do. And on other occasions, a company might not directly be involved in the litigation at all, but its influence forms part of the background to the case. For example, it's common for environmental activists to bring claims against the police for assault or false imprisonment in circumstances where the police were protecting environmentally destructive companies from having their operations disrupted by protestors. In short, when it comes to litigation, we can't draw a clear dividing line between the state and corporate power. This reflects the realities of our capitalist system in which companies have massive influence over government, and use its power to their advantage, and in which many governmental functions have been outsourced to the private sector. Types of claims an individual might bring, so let's move on, and think about the types of claim an individual might bring to challenge corporate power. These are almost infinitely varied. They embrace both private law and public law litigation. In private law, the law of tort is often used by individuals to obtain redress against companies that have caused them harm. This is not a recent development. As every law student knows, the celebrated case of in 1932 of Donahue and Stevenson, Mrs. Donahue found the remains of a decomposed snail in her ginger beer bottle. She sued the manufacturer and won. The case established that the manufacturer of a product owed a duty of care in tort to the ultimate consumer, even where there was no direct contractual relationship between the manufacturer and the consumer. It ensured that consumers had a remedy in the tort of negligence if they were injured by defective products. Today, those remedies are even stronger, because under consumer protection legislation, manufacturers are under a duty of strict liability in some circumstances for defective products, that is, the consumer doesn't necessarily have to prove that the manufacturer was negligent or at fault. Similarly, if you are injured due to unsafe conditions at a company's premises, you might want to bring a claim against them for damages. This used to be governed by complicated common law rules, which distinguish between invitees and licensees, with different duties being owed to each. In English law, though, those distinctions were swept away by the Occupiers Liability Act 1957, which creates a clear and coherent system for determining whether an occupier of premises is liable for unsafe conditions of the premises. Some Commonwealth jurisdictions, however, where I practice have not adopted the 1957 Act, and still have archaic, common law rules. But even after the 1957 Act, occupiers did not generally owe a duty of care to trespassers. On the surface, that might sound fair enough, until you remember, often the trespassers who were injured were children, who, for example, strayed onto a railway line, or ventured somewhere else where they were not supposed to be. This was changed in the case of British Railways Board against Harrington, that's a 1972 case, which decided that a trespasser in Harrington, this was a six year old child who was injured on a live rail, was owed a limited duty of care, and this was subsequently codified by the Occupiers Liability Act 1984. Another tort that is sometimes invoked to challenge corporate power is nuisance. Nuisance involves interference with another person's enjoyment of land. In some circumstances you might be able to sue if noise, smells, odors, or pollution are interfering with your enjoyment of your home. For instance, in the case of Dobson against Thames Water Utilities Limited in 2011, the residents were able to obtain damages from nuisance and negligence, where the negligent operation of a sewage treatment works had caused odors that made their lives intolerable. But the tort of nuisance is restricted in ways which are profoundly classist. First of all, it's a classic principle of nuisance that what does or doesn't constitute a nuisance depends on the character of the area. As a 19th century case put it, what would be a nuisance in Belgrave Square would not necessarily be a nuisance in Bermondsey. At the time, Bermondsey was very much a working class industrial area in the East End, or Southeast London, I should say, whereas Belgrave Square was still in a wealthy part of central London. In other words, in English law, how much protection you deserve from noise, odors, and pollution depends on whether you are wealthy and privileged enough to live in an expensive area. And you can only bring a claim in nuisance if you have a proprietary interest in the land affected by the nuisance, for example, if you are the landowner or the tenant. This was definitively established in the House of Lords case of Hunter against Canary Wharf, which held that an adult child living in her parents' home could not sue for nuisance. Another type of tort claim you might bring against a company arises when you've been injured through an employee's misconduct, for example, if an employee has assaulted you, sexually harmed you, or stolen your property. In this area of law, the key concept is vicarious liability. What that means is that in some, but not all circumstances, the company may be strictly liable for the torts, civil wrongs, committed by the employee, even though the company itself was not at fault. This is very important, because you are unlikely to be able to recover substantial damages from an individual employee, but you are much more likely to be able to recover damages from a company, which will have deeper pockets and liability insurance. Historically, the boundaries of vicarious liability were limited to cases where the wrongful act committed by the employee was either authorized by the employer, or was a wrongful and unauthorized mode of doing some act which was authorized by the employer. This was known as the Salmond test, since it came from a textbook called Salmond's Law on Torts. In some circumstances, an employee was said to be on a frolic of his own, and his actions were said to fall outside the scope of his employment. The scope of vicarious liability, however, was significantly widened in a case called Lister and others against Hesley Hall, which established that in some circumstances, an employer can be liable for an employee's sexual abuse of children under their care, even though this could not be said to be a wrongful mode of doing an act authorized by the employer. The law has moved away from the strictness of the Salmond test, but the law of vicarious liability continues to create confusion and doubt. For example, in the Supreme Court case of the various claimants against WM Morrison Supermarkets in 2020, the Supreme Court held that, contrary to the decisions of the High Court and the Court of Appeal, Morrison's was not vicariously liable for an employee who had deliberately leaked a large amount of employee personal data in pursuit of a personal vendetta. The decision, which in my view was poorly expressed in some respects, has thrown previously settled principles into confusion, and ultimately increased the difficulties faced by individuals seeking adequate redress for the wrongs done to them. Another field of law that often involves David confronting Goliath is in employment law, where ordinary workers take on employers with deep pockets. One important battleground in employment law has been the fight for justice for workers in the so-called gig economy. Often, workers in the gig economy are nominally self-employed, but this is a reality in, sorry, forgive me, that this in reality is used as a device to strip them of all legal rights and protections that come along with being an employee. There have been a couple of very important cases in which self-employed workers have succeeded in establishing that, although they were not employees, they were nonetheless workers within the mean of the Employment Rights Act 1996, and therefore entitled to certain protections. These cases are Pimlico Plumbers against Smith, brought by self-employed plumbers and Uber against Aslam brought by Uber drivers. These are classic David and Goliath stories, where ordinary workers took large corporations or companies to the Supreme Court and won. Of course, neoliberal politicians don't like workers having power. In 2003, the David Cameron government imposed onerous fees for bringing claims in the employment tribunals, but in a landmark case brought by Unison Trade Union, cases Unison against Lord Chancellor 2017, the Supreme Court held that the relevant fees order was unlawful because it interfered unjustifiably with the common law right of access to justice, and breached European Union law. This was one of the most important and progressive judgements of the decade, and it shows that what ordinary people can achieve when they join together, particularly in trade unions. Similarly, the Quality Act 2010 allows ordinary people to bring claims when they are discriminated against, victimized, or harassed because of a protective characteristic, whether by their employer, a service provider, or public authority. This is another route by which Davids can challenge Goliaths. Now, let's move away from private law, and think about public law litigation. As we've seen, you can't normally bring a claim for judicial review against a private company, but sometimes a claim for judicial review might directly implicate a company's interests. A very common example is planning litigation. Suppose, for example, that your local authority has approved an environmentally damaging project in your area, and you oppose it because of the damage it will cause to the environment, and the risk to local residents. You might challenge the local planning authority's decision by judicial review. In that case, the company carrying out the project won't be the defendant, but will be an interested party to litigation, and it's likely to play a major role in that litigation. For example, numerous ordinary people and environmental NGOs have courageously taken on the British state over the issue of planning approval for fracking operations in cases such as Friends of the Earth against the North Yorkshire County Council in 2016, Preston New Road Action Group against Secretary of State for Communities and Local Government 2018. In both of those cases, they lost, and the fracking interest won, but the government ultimately decided to put a moratorium on approving further fracking operations. It's interesting how, with the Ukrainian crisis currently ongoing, how that whole moratorium is again coming under debate, but that's an aside. More recently, in Finch against Surrey County Council, a case of 2022, a judicial review challenge was brought against the local authority with the aim of establishing when granting approval for oil extraction operation, the environmental impact assessment should take into account greenhouse gas emissions that would be produced by the eventual use of the oil as fuel. Again, the claimants did not win, but these cases are good examples of David confronting Goliath through the planning system, and seeking to protect us all from the terrible consequences of unchecked climate change. I want to pay particular tribute to my colleague, Marc Willers, QC, who has acted for the claimants in many of these cases. Similarly, human rights litigation often implicates the interests of private companies. For example, which we're going to explore later, is the fight of communities in the Caribbean for constitutional protection of land rights. That is a fight against the state, but it is a fight in which the interests and money of private developers are heavily implicated. Another example is the human rights litigation about climate change, such as the famous Urgenda case in the Netherlands, in which the environmental NGO succeeded in establishing before the Netherland courts that the Netherlands government was in breach of its obligations under the European Convention on Human Rights by failing to adequately address climate change. Again, this is litigation against the state, but it has massive implications for private commercial interests. Finally, there's another type of proceedings which doesn't neatly fit in either public or private law, the coroner's inquest. I've talked a lot about inquest in my previous lectures. In effect, an inquest is an inquisitorial proceeding where the coroner, an independent judge as it were, inquires into the causes of a person's death. Although inquests are officially non-adversarial, in reality, they can be very adversarial, particularly where powerful institutions are implicated in the death, and are trying to protect themselves from liability. We're now going to talk about a couple of examples of these David and Goliath situations in my own career. I want to look at the Barbuda litigation, and the inquest into the deaths of Christi and Bobby Shepherd. The two cases are very different. One is a story of a Caribbean island community's fight to protect their land. The other is a story of a family's fight for both accountability and fair compensation after their children were killed through the negligence of a British travel agency's third party hotel. But what they both have in common is this. They are both David versus Goliath stories, where courageous individuals have taken on the might of corporate interests. The Barbuda litigation, so let's start there. The story of Barbuda is a story about land. In my experience, the commodification of land could be described as a curse of the Commonwealth Caribbean. As it is in so many other places in this world, the real estate industry does not work in the interest of ordinary Caribbean people. It works in the interests of private developers and wealthy expats. Although many Caribbean islands and other parts of the world have laws requiring non-citizens to obtain licenses from governments in order to own land, these laws do not always achieve the objective of keeping land in the hands of local people. Rather, they can simply create a lucrative source of revenue for governments and lawyers, and unfortunately, contribute, at times, to corruption and nepotism. In short, as with almost every aspect of the modern world, and the Caribbean is not immune from this, the part of the world which is many a paradise is steadily being wrecked by corporate capitalism. The root of the problem that is under capitalism, land is a commodity to be bought and sold, but there is one place that is different, Barbuda. Barbuda is a beautiful island in the eastern Caribbean. I've been there. It has a couple of thousand residents, with a rich and varied natural heritage, a unique culture. Compared to other Caribbean islands, it is relatively unspoiled by the tourist industry. It forms part of the state of Antigua and Barbuda, together with the much more populous island of Antigua, but the relationship has not always been an easy one. Barbuda was once owned by the Codrington family, who were granted it in 1685, a lease from the British crown. The Codrington family brought enslaved people from Africa to the island. The enslaved people on Barbuda were emancipated in 1834, but the Codrington family's lease of the island continued until 1898. Barbuda formally became a dependency of Antigua in 1858, and the laws of the colony of Antigua were extended to Barbuda. Now, the Barbudans developed a traditional, developed a tradition of commonal land ownership, in which all the land in Barbuda was held in common by Barbudans, with individual Barbudans having the right to a plot of land. However, the formal legal status of Barbudans' land tenure was unclear for a long time. The Barbuda Ordinance 1904 declared that all land in Barbuda was to be vested in the crown, and declared all inhabitants of Barbuda to be tenants of the crown. Meanwhile, Antigua and Barbuda became part of the West Indies Federation from 1958 to 1962, and then became an associated state of the United Kingdom in 1967. It became fully independent, a fully independent Commonwealth country in 1981. However, in 1976, the Barbuda Council, a democratic local government body for Barbuda was set up, but the nature of Barbudan land tenure remained a dispute and controversial subject. The Eastern Caribbean Supreme Court generally took the view that land in Barbuda was vested in the crown, and that the Barbuda Council did not have ownership or control over the island's land. There was a real disconnect between the Barbudan community's traditional understanding of its land rights on the one hand, and the formal position in the law on the other. Then in 2007, the Barbuda Land Act was passed by the Parliament of Antigua and Barbuda. The act put Barbudan commonal land rights on a clear statutory footing for the first time. Section three of the act declared that all land in Barbuda would be owned in common by the people of Barbuda. It provided that the title to all land in Barbuda would vest in the crown on behalf of the people of Barbuda. Section five prohibited the sale of land in Barbuda. Section seven gave Barbudans the right to grant exclusive rights of occupation over their own plots of land. Section 11 gave the Barbuda Council power over the administration and development of land in Barbuda and the grant of leases. This was a progressive act which protected the traditional land rights of Barbudans. It was, it meant that the local community, not politicians, not developers, were in the driving seat. Unfortunately, things did not stay that way. There was a change of government in 2014, with the Antigua Labor Party under Gaston Browne defeating the United Progressive Party under Baldwin Spencer. In 2014, the new government entered into a land deal to lease land in Barbuda to a company, Paradise Found LLC, for tourism development, and the Antigua parliament passed an act, the Paradise Found Project Act of 2015, which disapplied the Barbuda Land Act 2007 in relation to the Paradise Found Project. The constitutionality of this action was challenged in court by two Barbudans, Mackenzie Frank, and Trevor Walker. For clarity, I was not involved in that litigation. Meanwhile, Hurricane Irma devastated Barbuda in September 2017, causing massive damage. Approximately 90% of the structures in Barbuda were flattened by this category five hurricane. Unfortunately, the Antiguan government took the opportunity to engage, some may say, in some disaster capitalism. After the hurricane, the government became the clear cut, began clear cutting the Barbudan forest without the consent, it's been said, of the Barbudan community to build a new international airport. In July 2018, judicial review proceedings were brought on behalf of two Barbudans, John Mussington and Jacklyn Frank to challenge the construction of the airport. I represented both Mr. Mussington and Ms. Frank. The airport construction had been commenced without obtaining the proper planning approval, and without an adequate environmental impact assessment, or EIA. In fact, the EIA subsequently conducted has never been made available to us, the courts, or indeed, the public. The airport construction was botched, and caused significant damage to the Barbudan ecosystem, and the airport was being built on cavernous limestone, which posed a high risk of sinkholes, a risk of contaminating water supply through stormwater runoff. There was no accountability, no transparency, and the litigants in that action had to fight hard for every scrap of information. Unfortunately, after a long and arduous journey, the claimants lost before the Eastern Caribbean Court of Appeal in 2021. I can't say too much about the specifics of this litigation, because it's currently under appeal to the Privy Council. I hope to be able to say more in a future lecture when this litigation is finally resolved. In the meantime, things changed for the worst yet again. The Barbuda Land Amendment Act 2017 repealed much of the 2007 Act, and abolished the Barbudans' right to land altogether, returning them to the status of mere tenants of the crown. It also allowed Barbudans to buy freehold interests in the land, inevitably opening up Barbuda to future exploitation by the real estate industry. And in 2020, Mackenzie Frank and Trevor Walker lost their constitutional challenge before the Eastern Caribbean Court of Appeal. Again, can't say too much about the specifics of that case,'cause it's currently under appeal to the Privy Council. That hearing is scheduled for May of this year. I'm telling this story because it's important. It isn't heartwarming. It's not a feel good David and Goliath story. It's a case where Goliath has won, David has lost, but that doesn't absolve us from the responsibility to keep fighting hard for justice for the people of Barbuda, and for other communities around the world who are seeking to defend their land from corporate capitalism. But there is a ray of hope. The Barbudans can take heart from a successful fight for justice in another part of the Caribbean, the Maya Land Rights Litigation in Belize. Much like the Barbudans, the Mayan indigenous communities of Belize traditionally enjoyed commonal land rights, which have frequently been threatened by government and private developers. And in the landmark judgment of Cal against the Attorney General of Belize in 2007, the Mayans of Belize established that their commonal land rights were recognized by law. However, that didn't bring an end to the government interference of the Mayan lands. Eventually, the Mayans had to take their case to the Caribbean Court of Justice, a supranational court that's the highest court in the Belizean judicial system. We're going to be talking more about the role of the Caribbean Court of Justice in the next lecture. In a case called Maya Leaders Alliance against the Attorney General of Belize in 2016, the government of Belize ultimately accepted before the Caribbean Court of Justice that the Mayan land tenure gave rights to collective and individual property rights that were protected by the Belizean constitution. I believe the same understanding ought to apply to the Barbudan commonal land rights, and we will keep fighting for recognition of those rights in law. I hope that one day all over the world, there will be a decommodified and will be administered and developed democratically in the interest of the whole community, rather than just in private interests. That isn't a goal we can achieve through litigation alone, but we can fight in the courts, and in the legislations to preserve and protect commonal land rights where they do exist. Let me turn to the second thing that I want to look at, which is the Christi and Bobby Case. This is a very different David and Goliath story. It's a story of Christi and Bobby Shepherd, or some of you might know it as the Thomas Cook Corfu litigation. The facts are straightforward. They are these, and they're well known. Christi and Bobby Shepherd, sister and brother died when they were on half term holiday in October 2006 with their father and his partner. Their holiday bungalow, which had an adjoining outbuilding, which was housed by a gas hot water boiler, this had been poorly installed and maintained, and what the coroner called bodged and botched work, and inadequate ventilation, making an accident almost inevitable. Three days into the holiday, the children started to feel unwell. On the night of their deaths, Bobby was unsteady on his feet, both children were complaining of headaches, and were vomiting. The next morning, the chamber maid entered the bungalow to do the cleaning, and she found the bodies of Christi and Bobby, their father and his partner lying nearby in a comatose state. They would, they were all admitted to hospital, where four days later, the adults regained consciousness, and learned that the two children were dead. Christi and Bobby's mother heard about her children's death from a news report on the radio. A Greek court found that members of the hotel staff including the manager guilty of manslaughter. Two holiday reps employed by Thomas Cook were cleared. The West Yorkshire Police also investigated the case, and, but the Crown Prosecution Service decided there was insufficient evidence to bring charges against anyone in the company. At that time, Thomas Cook was the biggest tour holiday operator in Europe, with an annual turnover of billions. But in the eight years since the children died in that bungalow in 2000, sorry, bungalow 2011, at one of their third party hotels, the company treated this bereaved family appallingly, according to the parents. When the children died on holiday, their bodies had to be flown back to the UK, for example. Did Thomas Cook provide a private plane for the distraught mother? No. The bodies of the children came back on the holiday package charter plane that the couple flew in, along with other holiday makers, the last of the season's flights at the end of October. Their mother, Sharon Wood, saw the children's coffins being shunted into the cargo hold. It had taken the family a long time to get to the inquest. They'd gone to through the Greek system, and received modest compensation from the hotel. Then they had the West Yorkshire Police investigation, and the subsequent decision of CPS not to prosecute any individuals who worked for Thomas Cook, nor the company itself. Lastly, in the UK, they had to go through the complex working of the coronial system, which had taken its time. There was a struggle to obtain funding. The coroner had ruled that the case was not an article two case that, you'll know what article two is from one of my previous lectures under the European Convention of Human Rights. It's a right to life case, and you'll remember that I've said in the beginning of this, if you've got a private company, the European Convention of Human Rights does not apply. We didn't know whether we would get funding for the inquest, which was likely to last three weeks. In the end, the family did secure legal aid fund funding for the family after the intervention of their MP, Mary Cray, the Wakefield MP during prime minister's questions, and eventually, after meeting with the then Prime Minister David Cameron. It took the Legal Aid Minister at the time to authorize legal aid representation. Herein lies the problem with the mentality of the legal aid system. It takes the determination and grit of a grieving family to lobby their MPs, politicians, and even the Prime Minister, just to secure funding so that they could be put on an equal footing with a Goliath like Thomas Cook, and hardworking lawyers who keep it going. Families and legal aid lawyers become so downtrodden with one negative decision on legal aid after another knocking us back, that eventually, when legal aid is secured, we feel so grateful for the modest crumbs of funding that we are handed. There is no doubt in my mind that the legal aid system is broken. I know this. I know for a fact that the two other QCs who were instructed, one for the company, and one for its employees, were paid handsomely for their work. Now, that's not to begrudge them their fees in the case, but it's to illustrate the inequality of arms. Whereas, families and their lawyers have to beg for funding. When it's eventually received, it's at the lower junior rates. There is no two ways about it. We do not have a fair system of representation or enumeration. Money talks, and if you are legally aided, and you wanted to instruct good lawyers, well, that's just tough. It's a testament, I say, to the publicly funded lawyers who nevertheless take on these cases, and fight just as hard without a concern for proper remuneration. They take what they are given, and oftentimes do not complain. Now, don't get me wrong. This isn't about lawyers complaining about what they are paid. It's to illustrate the unfairness of the system. You see, the system is not equal. Wakefield Coroners Court, the inquest was held there. Sitting before Mr. David Hinchcliffe, the senior coroner at the time for West Yorkshire. Mr. Hinchcliffe accepted an application that the case should be heard with a jury. He didn't have to call a jury, but he did. Many coroners would not have done so, because this inevitably adds to the length and the cost of a case. But in his ruling, Mr. Hinchcliffe said in strong terms that if Christi and Bobby had died on British soil, they would've been entitled to a jury as of right, because the coroner's rules, and the fact that their deaths were suspected carbon monoxide poisoning. But because they died abroad, that right, there was no automatic entitlement. He didn't want justice to be a lottery, dependent on where British children die in the care of a British company. It was a strong ruling, and clearly sent a message to all the interested persons that this would've been, and was, as such, an in depth inquiry, and it certainly was. The jury was sworn, good Yorkshire people. Now, Thomas Cook did not make matters easy on themselves in defending their decisions and actions at this inquest. Firstly, they didn't call some of the key witnesses. The excuse was used that the witnesses were abroad. Now, if a witness is outside the jurisdiction, a coroner cannot compel that witness to give evidence, however, what have we all been doing in the last two years? We've all been Zooming, doing things by teams, and let me tell you this, Skype was around back then, video conferencing was around back then. It would not have been difficult for the company, if it wanted to, to call those employees to give their evidence via video conferencing. Those facilities were around at the time. So those witnesses were not compelled to give evidence. A jury would've been aware of that. Those witnesses in the UK who were compelled to give evidence decided to exercise their right not to incriminate themselves. Now, I want to be clear, that is their right, but any experienced advocate who knows this, knows about the right to silence. It simply looks bad. There are many directions a coroner can give to a jury that it's a witness' right to not incriminate themselves. It shouldn't be held against them. You shouldn't draw any inferences from that, but what's the reality? What do you think? It appears, rightly or wrongly, that the witness may be trying to hide something. Certainly, in my belief, this jury was not happy with Thomas Cook or its employees. I can say that, 'cause I now know the result. They looked with disdain at the witness after witness, who was either silent, or said they were not to blame for the glaring mistakes or failures which led to the third party hotel having a dodgy boiler and inadequate ventilation, in short, the heating system which anyone competent would've should have stop and inspected it would've condemned it at the first opportunity. By the time the inquest opened, a new chief executive, Mr. Frankhauser, had to say to Christi and Bobby's parents,"I feel so thoroughly, from the deepest of my heart, sorry, but there's no need to apologize, because there was no wrongdoing by Thomas Cook." He refused to apologize for the company. He refused to take the opportunity to put it right what was so obviously wrong. An apology would've cost him nothing. This, at times, is a corporate mindset, deny, deny, and not to apologize for fear of the legal consequences. Now, I don't know whether the bottom line was money, or whether they were worried, perhaps, that giving an apology might have thought this is implying liability. In fact, that was not the case, since the family had already settled their case years earlier in Greece. But Thomas Cook did not handle the death of these two young children well. When Mr. Frankhauser said he had nothing to apologize for, the jury looked at him with daggers. Although you can't have a victory at an inquest, because an inquest cannot be one or lost, I knew at that moment that this family had won. At the end of the inquest on 13th of May 2015, the jury came back with an unlawful killing verdict. They said that Thomas Cook had been negligent, and had failed in their duty of care to Bobby and Christi, and to their grieving parents. Now, it should be noted that negligence denotes civil responsibility, something that inquests generally are not allowed to do, but the coroner did not amend the jury's conclusion, and allowed it to stand. Now, Thomas Cook could have tried to challenge that jury's decision by way of a judicial review, and get parts of it struck out, but what would that have done? That would've prolonged the litigation, and that would've led to more publicity, none of which would've been good for the company. At the end of the inquest, I made a statement to national media and reporters outside the court. At that moment, I felt angry by the way the company had conducted itself, and I said,"Thomas Cook should hang its head in shame." The families of Christi and Bobby had waited nearly nine years for an apology. They are still waiting. In the days after the hearing, there were calls for the company to be boycotted in social media. The Thomas Cook share plot price plummeted. The following week after the verdict, Mr. Frankhauser and Thomas Cook agreed, finally, to meet with the parents of Christi and Bobby. Thomas Cook, through its CEO, made a public apology, met with the family. Finally, things were put right with a financial gesture of goodwill. This ordinary family, with courage and persistence, had prevailed, and got justice for their children, even though nothing was going to bring them back. So let me conclude. I want to wrap up this lecture with some general thoughts about litigation, what it can achieve, and what it can't. Litigation generally changes the world. At its best, it can secure justice, protect the powerless, and challenge the powerful. I've spent a career seeking to do just that. And in this lecture, we've looked at some examples of Davids taking on Goliaths in court. But we have to remember this, litigation involves operating in a court system which is built by and for the powerful, and frequently serves the interests of the powerful. We also have to remember that judges are human beings with their own flaws, and assumptions, and prejudices, like the rest of us. We have to remember, therefore, that David won't always defeat Goliath. And we have to remember that for every lawyer who takes on Goliath in the courts, there are many Davids, people on the ground who do the hard work of activism, protests, and resistance that move society forward. The courtroom can be seen sometimes as a scene of progress, but progress is ultimately driven by ordinary people. I want to close with a quote, which is often attributed to the anthropologist Margaret Mead, although that attribution is disputed."Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has." Thank you.(audience applauding)