Sometimes you try and you do not succeed

Along with the other Plaintiffs, Jonathan Bartley, Keith Taylor and Steven Agnew, I have taken stock of progress made on the Dublin case, its prospects going forward and changes in the wider political setting. With regret, we have agreed between us and with Ireland that the litigation should be discontinued. I set out my own reasons for consenting to that course below.

Last week, the parties concluded the exchange of pleadings – the written cases setting out the points each side intends to take. That made it an appropriate moment to reflect with the Counsel team on the way forward. 

A number of matters have become apparent. In particular, it is clear that Ireland does not want a reference to the Court of Justice in Luxembourg of the questions in the proceedings. This stance surprised me. I believed that the Ireland would want to act mindful of the law rather than in the dark. But, surprising or not, it has consequences.

The first is timing. 

If, as is likely, Ireland takes every point available to it, it is unlikely we would have a full hearing in the High Court until the autumn. The advice we have received only this week from the senior member of our Counsel team is that we would be very unlikely to obtain a reference to the Court of Justice from the High Court. We would then need to appeal to the Supreme Court of Ireland. The Supreme Court would be more likely to make a reference – but our prospects would still be speculative.

If you assume that a reference were to be made at that stage, the UK Advocate General has indicated it would take four to eight months to hear that reference. So we might not have a decision on the questions referred much in advance of the date (October 2018) by which both David Davis and Michel Barnier have said negotiations would need to be concluded. 

The second is costs.

Funding the litigation going forward will be expensive. Our costs will not be insignificant. And provision must also be made for the other side’s costs in case our claim fails. The advice we had at the outset was that we should be able to get an order protecting us from the other sides’ costs. However, the advice we now have is more pessimistic about that prospect. This means that we would have to raise money to pay our own legal team – and to pay the Counsel engaged by Ireland.  It is possible that such a sum of money – which would be in the hundreds of thousands of pounds – might be raised. But, even assuming it can, it leaves the question whether, given what we now understand about timing and prospects, raising and spending that money is wise. I do not want to seek to raise such a substantial sum of money unless I can be satisfied that to spend it for the stated object is prudent. And I regret that I am not.

What does our decision to discontinue the litigation mean? 

It does not mean Brexit is inevitable.

Each of the Council, Commission and European Parliament has said the United Kingdom could withdraw the Article 50 notice with agreement. There is no doubt this is so. Discontinuing leaves open the possibility that the United Kingdom could withdraw the Article 50 notice unilaterally. This may be possible – legal opinions on the question differ – but discontinuing means we cannot know by this route whether it can. 

I have sought to be a careful steward of the crowdfunded money. Of the £70,000 raised, £4,000 went in fees. Of the remainder, a significant portion will have been expended on legal costs so far. But there will be a sum remaining unspent. The solicitors have not yet been able to quantify that sum. When that sum is known to me, I will ensure it goes either to other Brexit related litigation with sympathetic aims – or if there is no other such litigation to a charity.

I think it was right to make the bold decision to seek the answers we need. We knew there was no guarantee of success. But we were right to try.  It’s now up to all of us to take our love of our country and our optimism that there is a positive way forward and channel it to protect, Brexit or no Brexit, the values we care about.

Jolyon Maugham QC

25 thoughts on “Sometimes you try and you do not succeed

  1. Thank you for this post and for doing all you do for this country.

  2. Not always the winning that is important, Young J, but that battle was joined, in the first place!
    Congratulations to you and the team for the work done! I respect your decision!
    Many thanks!
    John L Bell

  3. Thanks for keeping us informed – I really wish the remaining cash could be used to support an anti-Brexit message in the coming general election but I guess time is too short and such a donation would probably raise its own set of problems and controversy. I wish you well.

  4. Thank you for your efforts.
    Your rational reassessment of a situation is admirable, especially when compared to our politicians who blunder on, despite any and all evidence.

  5. Sad news but I have every confidence that you’ve made the best possible decisions and I thank you for your time and efforts. Dust yourselves off, take a moment to chill and then onwards and upwards.

  6. You have made an excellent case, Mr Maugham, however, I really do feel that one would be letting down Lord Neuberger and the Supreme Court judges – not to mention the original High Court judges – should this or any further litigation be pursued over Brexit. Not in any way, shape or form. A momentous referendum took place and the courts have ruled. Article 50 has been triggered. The ‘Gun’ analogy was used. It was a gun, not a boomerang. If this is the nation’s destiny, then so be it. I came across Lord Neuberger yesterday in Abbotsbury. He is a good man and he issued a very fair judgement. I feel his conscience is clear and so should all of our consciences be. We can’t re-write history.

  7. I trust you to have made the best decision in the legal circumstances. Thank you for flying the flag.

  8. You have made an excellent case, Mr Maugham, however, I believe you are right to desist in this matter. I really do feel that one would be letting down – even insulting – Lord Neuberger and the Supreme Court judges – not to mention the original High Court judges – should this or any further litigation be pursued over Brexit. Not in any way, shape or form. A momentous Parliament-backed referendum took place and the courts have ruled on the legally necessary course of events following it. Article 50 has been triggered. The ‘Gun’ and the bullet analogy was used. It was a gun and bullet analogy: once Article 50 is triggered Brexit is inevitable. The analogy was not that of a boomerang which can come back! According to UK law as stated in successive court judgements, Brexit is inevitable. I am sure you would wish to uphold the law. If Brexit is the nation’s destiny, then so be it. It is not for you or I to try to upset the apple cart or the funeral procession. By the way, I came across Lord Neuberger yesterday evening in Abbotsbury, Dorset, where he was walking towards the church and the Tithe Barn. He is a good man and he said fair in his judgement. I have full respect for him, however, I really do feel people are not taking the law seriously. I feel Lord Neuberger’s conscience is clear and so should all of our consciences be. We can’t re-write history. Nor can the European Court of Justice.

    I should be most grateful if you would publish this note into your Blog. Please don’t censor it. Best wishes.

  9. A strong Liberal Democrat presence in the Commons post GE is the best bulwark we Remainers can hope and work for. A large contingent of new, wet behind the ears Tory members who idolise May and will support party over country would be a disaster over the next five years.
    Libdems came 2nd in 66 seats in 2015
    As it turns out, the Miller case would have been better fought by Pannick and his client with the long game in mind. A CJEU referral could have been engineered with a different strategy.

  10. Thank you for trying Jo & I fully support your decision to stop in the circumstances. It was worth a try. I’m surprised at Ireland’s stance but I am sure there are wheels within wheels. I hope the remaining funds can go to a Brexit resistance purpose or for EU citizens in UK legal help. Failing that, a refugee legal advice charity. Best wishes.
    Thanks for all you are doing for the cause of sanity.

  11. It was worth a try!
    Thank you

  12. Thanks for trying – and for continuing to be an inspiration in our fight to prevent the lunacy that is Brexit.

  13. One legal space which is now opening up from ‘leftfield’ is the potential for local authorities, either individually or collectively (perhaps with mayoral support in the cities) to use the provisions set out in the Sustainable Communities Act 2007/2010, which allow LAs to seek devolved powers from the centre where they are relevant to their communites’ well-being, and impose a duty on government to seek agreement on the devolution of these powers.
    There is a growing case for seeking, under these provisions, localised powers to negotiate with Brussels over the terms of exit from the EU, such that individuals deals on SM/FM/CU could be retained at local levels, and in so doing open up a ‘back route’ for others to follow towards a more sane position.
    Substantive details will emerge after the election in the North West, and it may be worth considering allocating some funding to this.

  14. Will you be publicly disclosing how the funds have been spent to date, and how the surplus will be applied?
    If so, when can we expect this?

  15. As I have already publicly stated:

    (1) I have neither sought nor derived professional, financial or other benefit from this litigation. Indeed, I have relinquished a substantial part of my paid practice to pursue what seems to me to be the public interest and betterment of my country.

    (2) A proportion of the monies raised have been expended on lawyers, none of whom I have any connection with. Indeed I have not sought reimbursement from the monies raised even of personal expenditure I have incurred directly related to the litigation. Nor will I benefit from the residuum of the monies raised which will go to other Brexit related litigation or charity.

    (3) I have been chasing the solicitors since Friday last for a final account. When that account is settled I will make it available publicly.

    Jo Maugham QC

  16. Pingback: Brexit: Jolyon Maugham’s Irish High Court challenge has been discontinued - Legal Cheek

  17. Pingback: Brexit: Jolyon Maugham’s Irish High Court challenge has been discontinued | Legal News

  18. Thank you for your efforts Jolyon. And yes, it’s not over yet.

  19. Pingback: Brexit Article 50 court case: The legal challenge to give Brits a way to stop Brexit has been dropped by Jolyon Maugham — Quartz

  20. This was always a fatuous pretence at a legal case. It was asking a Court to adjudicate on purely theoretical legal questions which did not relate to any reality of the discussions between the EU & UK. The various attempt to use legal trickery to undermine Brexit have merely undermined the legitimacy of Pro EU arguments. Campaign against Brexit, Yes, ask people to vote for Pro EU candidates and Parties, Yes, but for goodness sake stop trying to stop Brexit through the Courts merely because you can’t win through Politics

  21. I was happy to support the case – not to prevent Brexit – but to clarify the important issues raised. But I understand and accept the reasons for discontinuing the action in Ireland.

    However, there remain realistic arguments for respecting the separate results of the referendum in different parts of the UK, and the best prospect for keeping at least part of the UK in the EU is, of course, an independent Scotland as a full EU member in its own right. The Scottish Parliament has now formally requested a s.30 Order under the Scotland Act 1998 in order to allow a further Scottish independence referendum so that possibility can be put to a vote of the Scottish people.

    But the Prime Minister seems to be taking the line that she can unilaterally oppose the request for the s.30 Order. Yet the Act states that such an order would be made by The Queen in Council. Can I suggest that a good use for the remaining funds would be a case to clarify the s.30 Order process assuming Theresa May is still PM after 8 June? E.g. A JR to challenge the PM’s apparent refusal to put the Scottish Parliament’s request to the Privy Council (and to Parliament if prior parliamentary approval is needed – though this in itself may be a matter of debate).

    Whatever people’s views on Scottish independence, there is no doubt that the arguments have shifted dramatically in the light of the possibility of Scotland as in EU member and no doubt many (on both sides) would vote differently from who they voted in the 2014 referendum, Legal clarification of the process would be enormously beneficial.

  22. Oh to be a Brexiter. And to know more on all subjects than do the experts. How I envy you.

  23. Brexit has to be stopped. It’s the only logical course of action

  24. Respect, as always.

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