Vexatious litigants: from Whistler v Ruskin to Vardy v Rooney
It is arguable that one of the most frivolous cases ever to grace the Royal Courts of Justice was Whistler v Ruskin in 1878.
James Abbott McNeill Whistler was a renowned artist who had built a solid following for his work, from which he made a living good enough to commission a dwelling built to his specifications in Chelsea. He moved away from the need for paintings to serve a functional purpose in the ordered Victorian society and believed in “Art for Art’s Sake”. This made sense as the technology for the mechanical reproduction of images advanced.
Whistler anticipated the Impressionists with a series of paintings in the late 1870s, the most notable of which was his Nocturne in Black and Gold which, certainly to this writer, succeeded in capturing in a single instant the depth and kinetic action of a firework display far better than most photographs can do.
Nocturne was all too much for John Ruskin. A well-respected and influential social reformer, art critic, and de facto arbiter of public taste in the visual arts of the day, he inclined to the collectivist belief that they had a defined function in the established order. Art, therefore, had to be grounded in realism and recognisability.
Ruskin produced an irregular newsletter, Fors Clavigera , subtitled “Letters to the Workmen and Labourers of Great Britain”, in which he aired his opinions, with the aim of providing enlightenment to the lower orders in Victorian society. It was in his letter of 18 June 1877 that he turned his wrath on an exhibition at the Grosvenor Gallery, an establishment set up to promote works of the burgeoning Aesthetic Movement that were regarded as too nouveau for the Royal Academy.
Regarding Whistler’s Nocturne , Ruskin had this to say to his subscribers:
“ Scarcely so much can be said for any other pictures of the modern schools: their eccentricities are almost always in some degree forced; and their imperfections gratuitously, if not impertinently, indulged. For Mr. Whistler’s own sake, no less than for the protection of the purchaser, Sir Coutts Lindsay ought not to have admitted works into the gallery in which the ill-educated conceit of the artist so nearly approached the aspect of wilful imposture. I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.”
For this, Whistler sued. In the same publication, Ruskin had described Sir Coutts Lindsay, the founder of the Grosvenor Gallery, thus:
“ Sir Coutts Lindsay is at present an amateur both in art and shopkeeping. He must take up either one or the other business, if he would prosper in either. If he intends to manage the Grosvenor Gallery rightly, he must not put his own works in it until he can answer for their quality: if he means to be a painter, he must not at present superintend the erection of public buildings, or amuse himself with their decoration by china and upholstery.”
Lindsay did not sue.
The case, when it was heard in front of a jury, had some elements of farce. The painting was brought into the courtroom, but was hung upside-down, and it was rather too long before someone noticed. Ruskin, who had a history of mental afflictions (he was reportedly horrified when on his wedding night saw his new bride’s pubic hair for the first time and never consummated the marriage), professed himself too ill to attend, and never entered the witness-box. Whistler had expected Frederick Leighton, the President of the Royal Academy, to testify his behalf. The President, however, had to cry off so he could travel to Windsor to receive a knighthood from Queen Victoria, which has to rank as one of the best excuses in British history.
Ruskin was represented in court by the Attorney-General, Sir John Holker, with whom Whistler had this memorable exchange:
Holker: “Did it take you much time to paint the Nocturne in Black and Gold? How soon did you knock it off?”
Whistler: “Oh, I ‘knock one off’ possibly in a couple of days – one day to do the work and another to finish it …”
Holker: “ The labour of two days is that for which you ask two hundred guineas? ”
Whistler: “No, I ask it for the knowledge I have gained in the work of a lifetime.”
In the end, the jury found for Whistler, but awarded him just one farthing — the smallest coin of the realm — in damages. Costs were split between both sides. This bankrupted Whistler, who had to sell up everything and leave the country. Ruskin crowdfunded his debts, but his reputation was tarnished. Art was moving in new directions and Ruskin was seen as increasingly behind the times.
Actually, Whistler v Ruskin was not as frivolous as the jury’s award made out. Ruskin was highly influential, if not dominant, in British art criticism. Whistler was trying to branch out in a new direction, and his ability to sell paintings, and thus to support himself by his works, was badly damaged by Ruskin’s words, especially when they were repeated in a newspaper.
Much less arguable is the fact that one of the most frivolous lawsuits ever to see the inside of a court has to be Vardy v Rooney.
Shorn of the celebrity, the facts are very simple. Colleen Rooney, the wife of a well-known footballer, would regularly upload records detailing her personal life to a public database called Instagram. She restricted access to these records to a select few friends, relatives, and acquaintances, including Rebekah Vardy, the wife of another famous footballer. Vardy, through her publicity agent, would leak these restricted-access records to a tabloid newspaper which then used them to furnish gossip columns.
Rooney suspected Vardy of the leaks and posted a number of records containing fake information whose access she restricted only to Vardy. Once the fake information was used as the basis for newspaper articles, Rooney publicly denounced Vardy by uploading her denunciation to another public database called Twitter. For this, Vardy sued Rooney.
The firm that owned the Instagram public database refused to cooperate with either side and provide data about who accessed the records that Rooney stated she had restricted to Vardy. Fortunately the standard of proof in civil cases is lower than “beyond reasonable doubt”, as in criminal ones, being instead decided on the balance of probabilities. The case revolved around how Vardy transmitted the restricted records she accessed from the public database to her publicity agent. It was here that Vardy’s case against Rooney foundered.
If there is one commandment that ranks higher than the prevention of unauthorised access to data, it is the avoidance of accidental destruction of data. Data centres, massive warehouses filled wall-to-wall and floor-to-ceiling with file servers, have elaborate disaster recovery processes, which include having backup data centres available should the main data centre suffer a catastrophic failure. Vardy was ordered by the court to provide data from the Whatsapp public database detailing her communications to her publicity agent. It was during the process of providing this data that some of the data was lost in a manner the court found questionable.
A data file containing an archive of the communications between Vardy and her agent allegedly could not include images which might have damaged Vardy’s case because, as Vardy’s side explained, such a file would be too large to transmit electronically to a repository at a data centre and was also too large for the repository to hold. This claim was questionable for various reasons. The capacities of modern repositories are so enormous that it would seem that all that would be necessary to do would be to purchase extra capacity, and also the data file had itself been downloaded from another data centre anyway, so there should not have been an issue in uploading it. If the time needed to upload the archive was too long, then the file could be saved to a physical storage device, such as a USB key or a solid state drive, and despatched using a secure courier.
Vardy also stated that some text data had been lost in the download process. If this had happened, then all Vardy would need to do would be to make a fresh attempt to download the data, as it would still be available at the datacentre. Vardy then stated that the laptop computer on which she had performed the download work had been irreparably damaged and was no longer available, preventing forensic examination of any data stored on the laptop’s data storage devices, which might have survived the alleged damage. Vardy’s agent was required to provide her smartphone to the court to determine what data she had received from Vardy. Shortly after this request was made, the smartphone was dropped into the North Sea. Like Ruskin, Vardy’s agent pleaded emotional distress and did not appear on the stand.
In court, Rooney’s lawyers cited a legal precedent whereby the withholding of material by one side in a case should favour the other side to the maximum possible extent. In addition, what remained of the communications confirmed that Vardy had indeed used her agent to leak stories to a tabloid newspaper.
So Rooney won. Vardy may have to pay all the costs, including Rooney’s, but that will be determined by a separate hearing. But this case is frivolous for many reasons and not just because it concerned gossip.
Rooney’s celebrity means that people were always going to be interested in her private life. Thus uploading personal information to public databases, however much Rooney restricted access, always ran the risk that there would be a leak. If Rooney did not want her private life exposed, then she should not have been uploading data about it. When Rooney determined the source of the leak, she could have just blocked Vardy’s access to the data. Instead she decided to make a public declaration. There was no real need to humiliate Vardy in such a fashion, unless there is some other factor of which we are unaware that required her to do so.
Vardy’s motivation seems to have been a desire to be seen as a friend of the tabloid newspaper, and there were also suggestions of a form of self-promotion in her activities. She should have admitted her guilt before the matter came to court and performed some form of sub-Profumo-style atonement. Instead she kept upping the ante, but eventually lost the pot.
Yet it does seem that frivolity in court is now fashionable. Two charities representing sexual minorities are also in court, as one accuses the other of undermining it. Mermaids, a charity that supports emotionally disturbed teenage girls that use puberty blockers and elective mastectomies to relieve their disturbance, is reported here to be spending donated money to try to remove the charitable status of the LGB Alliance, an organisation that seeks more or better proportionality in addressing issues concerning gender identity and its relation to primary sexual characteristics, and is regarded by Mermaids as a sworn enemy. Donations that were presumably provided to further allegedly beneficial causes will now be redirected to expensive lawyers and court fees. Progressivists like to claim our society has moved on from the era of Whistler v Ruskin. I am not so sure.
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