Monday, 28 November 2011
LOREENA V NAOMI - DAVID V GOLIATH, MORE LIKE A MOUSE V A CHAMBER OF JACKALS
The bitter court confrontation with international singing star Loreena McKennit
By NIEMA ASH
Last updated at 22:23 19 May 2007
"Write whatever you like," said Loreena. "I?m really not worried, because I can pull your book in 24 hours."
Her voice was calm, confident and edged with steel, "If it comes to a battle, I can stay the course. You can?t." Other celebrities ? Madonna, Prince Charles, Nelson Mandela ? might be subjected to the scrutiny of a biographer, but not Loreena.
Not even if the author was a close friend of two decades? standing. She was burning with self-righteous rage and determined to stop me, whatever it took.
I put down the phone. I was upset that it had come to this, but felt sure the courts would protect me, however much money Loreena had. I was about to find out just how naive that hope was...
On my own, without lawyers, in secret, I faced the full pomp of the English legal system. It was David v. Goliath...and Goliath won. Free speech was the loser
For 20 years, Niema Ash was the best friend of international singing star Loreena McKennitt, but then fame and fortune led them to a bitter court confrontation
Loreena McKennitt, folk singer, songwriter and harpist, is a major celebrity in Europe and America, and her latest concert in London was a sell-out.
In her native Canada she is an icon and role model, showered with accolades and treated like a national treasure.
For 20 years, she was also one of my closest friends.
I befriended her long before she attained her celebrity status, when the record companies shunned her, even before she had a harp; the instrument which made her a star.
I was working as a teacher in London and Loreena, whom I had met during a trip home to Canada, would often come and stay.
There was an instant rapport between us and I was happy to put her up in my house and introduce her to my friends and family.
Over time we became extremely close. We would have long discussions about life and love and went on holidays together.
When her music career took off in the late Eighties, I enjoyed her success as if it were my own and I was filled with admiration for her single-mindedness.
She believed in total control, setting up her own record label and offices. She was her own manager; arranged her own tours and made all the decisions both in business and music.
Within a short space of time she became extremely wealthy.
Three of her albums went gold and platinum in the US and multi-platinum in Canada, and she bought a house in her native Ontario, then others in Toronto, Tuscany and Ireland.
I was thrilled for her. My partner Tim and I were big fans of her music and we both did a lot of work for her, for free.
We went on tours with her, helping with the merchandise and, when she bought a broken-down cottage in Ireland, we offered to do the renovations.
But as fame and money took over her life, Loreena changed.
At first it was quite subtle; she would sometimes adopt a haughty tone with me that I had never heard before. Then, later, she started yelling at people.
Finally, she and Tim fell out. He had disagreed with her about something and she had told him in no uncertain terms: "I?m the boss. You do as I say." Tim wasn?t prepared to be spoken to like that and he walked out.
I was devastated and tried to make peace between them, but Loreena wouldn?t budge. Nothing I could do would change her mind.
In fact, she became even more aggressive and we ended up in another battle with her, this time financial.
Our friendship was at an end and I was left bewildered and hurt. To my mind, fame had stolen my best friend. I was still immensely fond of Loreena and over the next five years I tried to make sense of what had happened.
In the end, I decided to write a book about my experience.
Called Travels With Loreena McKennitt, it was a biography, but also a cautionary tale. I wanted to tell people what a wonderful person she had been and how celebrity and money had ruined our relationship.
I published it myself and paid a printer to produce 1,000 copies and to sell it on Amazon and other websites.
But as soon as it was published, in June 2005, I was contacted by Loreena?s solicitors. They told me in no uncertain terms that it was a breach of Loreena?s privacy and that if I didn?t stop publication immediately they would take me to court.
I was determined not to be bullied. Loreena obviously wanted total control over everything that was said about her.
Even though my book was complimentary about her, even glorified her, she felt out of control and wanted it stopped.
What?s more, she had a team of lawyers and very deep pockets. No wonder her voice rang with confidence when she threatened to pull it from the shelves.
The only thing I had was a story that needed telling. A story about friendship and the intoxicating power of celebrity.
Fortunately, through the Society of Authors, I had an insurance policy that included cover for such an eventuality up to £100,000, which I considered a vast sum of money.
The insurers arranged for the law firm, Berrymans Lace Mawer, to take on my case.
Although not specifically media-oriented, they were helpful and astute and prepared a case, defending my right to free expression.
But from the start they made no secret that the insurers were an extremely important consideration, especially in relation to finance.
Once I left a meeting in tears because financial restrictions prevented me from taking some action I considered important.
I subsequently received a bouquet of purple flowers, my favourite colour, to make me feel better. However, money remained a constant obstacle.
Eventually, Loreena must have been convinced that banning books, although characteristic of Fascist Germany, was frowned upon in England, for she changed her demand from stopping the entire book to banning 38 sections, which amounted to about 25 pages.
But I was still determined to defend my right to publish these. Many were incredibly trivial. One, for example, concerned a story which was the equivalent of revealing that someone had to take aspirin for a headache.
But apparently this was considered a breach of privacy.
The case was scheduled for November, 2005. By this time Loreena had changed law firms three times, which seriously eroded my funds as this meant starting anew with each set of lawyers.
To prepare her case for trial she employed Carter-Ruck, an expensive firm of solicitors, and Desmond Browne, one of the country?s foremost barristers. For Loreena, money was no object.
About a week before the hearing my lawyers informed me, with regret, that the money had run out ? they were already over budget and could no longer defend me.
It was hard to believe so much money had disappeared so fast.
I had to either drop the case or defend myself. I chose the latter, and I was offered a briefing in court procedures.
I was given what was probably the shortest legal course in history, basically outlining what happened first, who spoke when, what certain terms meant, how I should address the judge and so on.
I ended up more confused and certainly more terrified than ever.
Three working days before the trial I received about ten large lever-arch files, called "bundles", containing reams of legal documents.
I stayed up every night before the trial trying to decipher them; to prepare for a situation I could not even begin to comprehend.
I had never been inside the High Court, let alone defended myself against one of Britain?s top barristers.
And, fully aware that one?s case is only as good as the lawyer pleading it, I felt hopelessly inadequate.
The trial was held in private, meaning that what occurred behind its closed doors must remain secret. It lasted seven days and was one of the most harrowing experiences of my life.
I felt as though I had the main role in a chilling drama which was being performed in a grand but intimidating theatre.
Although the actors were in costume; flowing black robes, stiff white collars, their heads covered in grey, curly wigs reminiscent of some scene from Dickens, I had no costume.
I was given the script at the last moment and found it incomprehensible: entire sections seemed written in a foreign language.
I was the leading performer, on stage without knowing my lines. It was surreal.
Loreena?s team ? barristers, solicitors, clerks ? were on one side of the courtroom surrounded by boxes of files and electronic equipment; on the other side were me, my partner Tim and our bundles. Looking down on us sat the judge, Mr Justice Eady, in full regalia.
It was David versus Goliath and I was fully aware that in the real world, Goliath usually wins.
There were many times during the seven days when I felt the judge and barrister, speaking in legal jargon with terms and references I did not understand, were conducting a private conversation to which I was not privy.
I was presented with several volumes of case law to study, but since I hardly had time to eat or sleep ? I didn?t even allow myself a lunch break ? they remained unopened.
During those seven days I lost ten pounds and was utterly exhausted.
I couldn?t swallow even a mouthful of food and my eyes were so tired and became so unfocused that I was offered a magnifying glass to follow references in the bundles.
I felt confused, bullied and hardly able to speak.
I am not allowed to reveal what happened in the courtroom to cause such anguish. I can only say I had no barrister to act as a buffer between myself and my opponents; no protection to deflect insult, wrath or rage.
Justice Eady delivered his judgment on December 21, 2005, and it astonished the legal community. He found in favour of Loreena and insisted that eight of the 38 sections should be deleted from my book.
In so doing, he overturned hundreds of years of English law. For the first time ever, the balance was tipped away from freedom of expression for the media and towards the right of the rich and famous to control what was said about them.
I found it difficult to believe the judgment was referring to the same trial in which I had participated.
For one thing, although I was on my feet for a good part of the seven days, presenting opening statements, closing statements, making submissions, being interrogated and questioning Loreena?s witnesses, the judgment hardly acknowledged my presence.
Although it made continuous reference to the highly polished performance of Loreena?s barrister: what he "quite properly drew to the judge?s attention"; what "references he invited"; what he "fairly pointed out"; it contained little evidence that I had submitted or described anything which could be used in my favour.
My testimony was mostly ignored or given a negative, critical, spin. There were many references in support of Loreena?s witnesses and witness statements; none in support of mine.
Much case law favoured Loreena; none, it seemed, favoured me. I came to understand that "celebrity" was a formidable factor in the courtroom.
I feel certain that if I?d had adequate funding, enough time, a competent barrister and a legal team to check facts, procure evidence, call the right witnesses ? in other words, a fair trial with "equality of arms" ? the judge may well have come to very different conclusions.
For example, the judge might have been convinced that Loreena was not a very private person after all.
Media lawyers and the media itself were concerned about the draconian effect the judgment would have on freedom of expression; on the ability to tell one?s story.
Publishers feared it would mean the end of all but the most anodyne biographies, autobiographies and memoirs; that judges would become editors of books.
Journalists feared judges would now determine what the public was allowed to know, that the rich and famous would use the new rulings to keep secret what they did not want revealed.
This fear has proved justified as my tiny ripple of a book has produced formidable waves.
It is being used in high-profile cases to protect the rich and famous ? business tycoons, sports icons, celebrities ? and to keep the public from knowing the truth. My case is the canary in the coalmine.
I found the judgment so deeply flawed that I felt compelled to appeal. Fortunately an excellent lawyer, David Price, agreed to do this free of charge.
Concerned about the chilling effect of the judgment on publishers, broadcasters, journalists and so on, a joint submission was made to the appeal court by all the leading newspapers ? including Associated Newspapers, owners of The Mail on Sunday ? the BBC, Sky TV, the Press Association and the Association of Book Publishers.
Much was written about the case in all the major UK and Canadian newspapers. The Toronto Star published several of the injuncted sections, showing not only how relatively harmless they were, but also proving that freedom of expression was far better protected in Canadian law.
But all to no avail. The three-day appeal, heard in November 2006, failed. David Price then decided to take the case to the House of Lords and, although presenting an excellent submission, the Lords decided, in March this year that the case "Does not raise arguable points of law of general public importance."
This despite the massive media intervention pointing out the disastrous effects of the new rulings.
The only hope now is to take the case to the European Court of Human Rights. But this requires funding. At the moment everything is dependent on money ? no justice without money.
Meanwhile I have rewritten the book, doing my best to comply with the judgment while still telling my story.
The main issue Loreena did not want revealed concerned a property dispute, her behaviour relating to this and its dire consequences for Tim and me.
However, the judgment reports this dispute in some detail and since the judgment is in the public domain, I have told the story in my new book, which is not a kiss-and-tell.
There are no sexual revelations, no outings. It is my story. Why should it be censored?
The new edition of it was published last month. Carter-Ruck contend that it breaches the judgment and have applied to the Court to injunct it.
They have threatened the printer with litigation and have managed to stop distribution, although there is no court order for an injunction. And they have threatened me with contempt of court: a jailable offence.
Once again I have no legal representation, and whatever money I had has been spent on legal expenses.
And all this to protect one celebrity?s image. In today?s world, image rather than reality is everything to the rich and famous.
Once it has been constructed, it must be protected at all costs, and anything with the potential to as much as dent a person?s carefully groomed public face must be silenced.
For Loreena, this might mean sending one of her closest friends to jail
Read more: http://www.dailymail.co.uk/femail/article-456146/The-bitter-court-confrontation-international-singing-star-Loreena-McKennit.html#ixzz1ezVw6kZU