A little later, seeming to take advantage of his psychological ascendancy, Dad asks, ‘And the answer to my question is a simple “No”, is it not?’
‘Will you repeat your question?’ Not an unreasonable request in the circumstances, since there has been a fair amount of intervening by-play. Dad is almost toying with him by this time, saying, ‘No. I am sorry, Mr Galbraith, but I will not,’ before returning to a crucial point. ‘Do you now agree that reasonable persons of goodwill might quite properly take the view that the relationship between you and Mr Vassall was one which was too familiar between a minister and a junior civil servant?’ ‘I certainly do not.’
This exchange by itself may have earned Dad his fee, with Galbraith showing the soft white underbelly of any future libel case, and Mars-Jones QC refraining for the moment from sinking forensic teeth into it.
Galbraith sometimes made some odd choices in his correspondence – something in which the tribunal took a keen interest, in fact, since he had sent John Vassall a chatty postcard while on a family holiday in Belgium. But it seems safe to assume he sent no Christmas card that year to W. L. Mars-Jones QC.
Kevin McClory, though, kept in touch with Dad. They were on good terms, as was only right if McClory had benefited in a strong material way from Dad’s taking the case. If I don’t remember Dad going to a preview of Never Say Never Again when it was released in 1983, it doesn’t mean he didn’t go. Kevin McClory was executive producer, and Sean Connery returned to the role of James Bond after twelve years. Film critics found it disappointing that the film was so clearly a new version of Thunderball, not realizing that it couldn’t be a fresh story without exceeding the rights McClory had won in 1963 and rendering him liable to be sued in his turn.
When my first book was published McClory passed on an invitation through Dad for me to spend some time with him in the Bahamas and to write the real story of the Thunderball affair. I wasn’t really tempted. There might be a wetsuit waiting with my name on it, but there might also be a harpoon-gun whose bolt had the same inscription. ‘The real story’ I was supposed to tell wouldn’t be an independent account but Kevin McClory’s version. Mars-Jones père had helped bring him prosperity, and now Mars-Jones fils would add a little polish to his reputation. McClory wasn’t known for being open-handed – perhaps the idea was to pay me in daiquiris and sun cream.
Ian Fleming was in poor health during the court case and died the next year, but the Thunderball affair rolled on. Jonathan Cape, publishers of the novel, and having every reason to know that Kevin McClory watched fiercely over his interests, brought out a biography of Fleming by John Pearson. McClory wasn’t satisfied with the account it gave of the legal action and its findings, so once again the lawyers were whipped out of their kennels and sent across the fields baying for redress.
Pearson’s tone had been misleadingly breezy:
As [Fleming] sat in court day after day, swallowing the nitroglycerine pills prescribed to prevent another heart attack and listening to all those old arguments again, he must have told himself how unnecessary it all was, how easily it could all have been avoided. A little thoughtlessness, a great deal of impatience, a lifetime’s habit of taking too much on trust – they were all to blame.
Again McClory won the point, so that the first edition of Pearson’s book had to have a statement from the publisher bound in (with the promise that the alterations would be included in subsequent editions and reprints), setting the record straight and apologizing for inaccuracy. ‘Since these pages were written,’ went the statement from Jonathan Cape,
certain facts have come to the notice of ourselves and the author which enable us to amplify passages in Chapters 24 and 25 which, whilst published by us in good faith, do not fully reflect the events leading to the High Court action in which Ian Fleming was concerned …
If you have an aversion, as I do, to the prissy form ‘whilst’, feeling that it carries a note of insincerity wherever it goes, then the word will seem perfectly at home in a passage of forced apology.
After two such successes, it was always likely that Kevin McClory would overreach himself. In the 1990s he proposed a second remake of Thunderball, to be called Warhead 2000 A.D. and possibly starring the Bond du jour Timothy Dalton. He then joined forces with Sony with plans to open up a whole rival franchise, having at this late date decided that he had been shortchanged by what had been thought in 1963 a highly advantageous settlement. Now he put in a claim for a proportion of the total profit from the whole roster of Bond films, on the basis that the work he had done on that early script had provided a template for the entire catalogue. He didn’t get his way in court this time. It seems pretty clear that his ownership of rights to the one film was easier to establish than any claim to the whole series. If he had scaled down his demands, instead of trying to go nuclear, he might have got his way with Warhead 2000 A.D.
Kevin McClory died in 2006, to muted mourning, but the disputes didn’t die with him. In 2007 there appeared a book called The Battle for Bond by Robert Sellers, not from Cape but from Tomahawk Press, which reproduced court documents from the Thunderball trial. This time it was the Fleming forces on the attack, with the Ian Fleming Will Trust contesting that these documents were not a matter of public record and therefore an infringement of copyright. Tomahawk’s position was that the documents were indeed public – but a small publisher must think twice before taking on a rich estate. Unsold copies of the first edition were surrendered, presumably to be pulped, and the second edition, though bearing the traditional defiant slogan ‘The Book They Tried to Ban’, leaves out the disputed material.
In compensation it has a foreword by Len Deighton, who felt confident that he knew Fleming well enough to speak in his name in opposition to the Fleming Will Trust. He writes: ‘How Ian Fleming would have hated to know that this book had been censored … As a gentleman he would have felt that harassing a fellow author to be the ultimate demonstration of bad taste.’ I don’t know much about cricket but I can recognize a sticky wicket when it swallows the batsman whole. Fleming’s gentlemanliness has to be assessed as part-time, and when he was off the clock he wasn’t above appropriating another writer’s work and passing it off as his. If Ian Fleming’s gentlemanliness had been uninterrupted, there could have been no book for him to rise up in hypothetical righteousness to defend.
The dispute over Thunderball, with lawsuits erupting over so many years, resembles a small volcano in its alternation of activity and periods of dormancy, or perhaps a cold sore brewing up every few years a fresh batch of litigant virus. Dad stuck around for one cycle of infection and then moved on.
Perhaps even now the dispute isn’t dead and buried but merely dozing. I imagine the McClory Estate and the Ian Fleming Will Trust as the last organisms to survive on a ravaged and blistered planet, periodically serving writs on each other.
The instructing solicitor in the 1963 case, Peter Carter-Ruck, attributed the successful outcome of the case to Dad’s performance, though it was also clearly important (and perhaps not expected by the other side) that Kevin McClory stood firm in the witness box. There were complications, with two plaintiffs initiating the proceedings (though McClory’s business partner, Jack Whittingham, withdrew, in poor health and worried about the financial risk involved) and two defendants throughout, Fleming and Ivar Bryce, which makes it harder to separate out individual motives from the swirl of courtroom manoeuvres.
Apart from Whittingham the three principals were well funded. McClory had recently married an heiress, Fleming’s earnings from the Bond books were colossal and Bryce was not only a
rich man but had married an heiress of his own. According to The Battle for Bond it was Bryce who decided to settle the case, but logically it was Fleming who was vulnerable. It would be a huge blow to his standing if he was found by the court to have plagiarized McClory’s screenplay, and it was strongly in his interest to accept any terms before such a judgment was given.
The settlement allowed him to say, after the hearing, ‘I am glad that the whole expensive misunderstanding has now been disposed of’, though this was just the sort of blurring of the issue which got Jonathan Cape and John Pearson into trouble with the Fleming biography three years later.
There were those who said that Bill Mars-Jones loved the sound of his own voice (this group occasionally included members of his immediate family), that he talked for the pleasure of hearing himself speak. On this occasion his vocal performance was close to heroic. His laying out of the case against Ian Fleming lasted twenty-eight hours and eight minutes. As court time is measured out, Dad spoke for more than a week.
A full performance of Der Ring Des Nibelungen lasts fifteen hours, just over half the length of Dad’s opening speech in the Thunderball case, and even Wagnerian roles aren’t continuous. It’s true that Dad didn’t need to hit specific notes, but he will have needed to pay attention to vocal variety. Vital to avoid the sing-song intonations which can tug a judge’s eyelids downward in the long watches of the afternoon.
What was the point of so extended an opening? It can be a way of dramatizing confidence, indicating the wealth of evidence on offer, by saying in effect: ‘My client’s case is not made of straw, My Lord, nor of sticks, nor even of stoutly bonded bricks, bricks so well laid and soundly mortared that no huffing and puffing on the part of Mr Fleming’s advocates (my learned friends) could make the slightest impression on its solidity of structure, but of concrete. Reinforced concrete.’ Putting pressure, hour by endless hour, on the defendant. This sounds like overkill, but Dad was well known for the obsessiveness of his preparation, insisting on seeing every piece of paperwork rather than relying on someone else’s selection of what was important. I wonder if he hadn’t been scarred by an early case, caught out when he hadn’t been quite so meticulous and getting a nasty surprise in court. In any case the combination of flair and attention to detail amounts to a formidable armoury for a courtroom lawyer.
It’s conventional to blame the case for the deterioration in Fleming’s condition, though his health problems were of long standing. Only Ann Fleming, Ian’s wife, seemed to feel that the trial had a beneficial effect on his physical well-being. ‘Goodness I miss the Old Bailey,’ she wrote in a letter to Evelyn Waugh in December 1963, though in fact the case was heard in the Royal Courts of Justice, ‘the case did Ian a power of good, no smoking in court and one hour for a simple lunch.’
Of course anyone writing to Waugh did well to keep the entertainment level high and to point up any possible irony, but perhaps she really did feel that the Chancery Division of the High Court stood in for a health club of a particularly exclusive kind, a judicial Champneys whose mortificatory element (sitting on hard wooden benches hour after hour to hear yourself characterized as profiteer and cad) was only an aspect of its efficacy and its prestige.
I don’t know why Dad felt the need to dress up his involvement in the Thunderball case with the fairy story about his inbuilt lie detector. It’s obvious that Kevin McClory didn’t come to Dad direct, and that Peter Carter-Ruck took McClory on as a client not because success was guaranteed but because payment was assured either way. Dad was the right man for the job, with a methodical approach that ran no risk of being dry, thanks to the whiff of danger he gave off in court. Why be embarrassed about that? But perhaps he disliked any idea of being a hired gun, and cried up the moral standing of his line of work accordingly. The traditional costume of the barrister – wig, gown and bands – is designed to produce the same effect, lending to a mercenary some of the dignity of a priest. Stylized battledress and a bandolier, even one made of horsehair, would attract the wrong sort of client.
Dad didn’t have anything as coherent as a philosophy of the law, and his personal principles could be strongly polarized without adding up to a standard opinion-poll profile. He was against capital punishment, for instance, and strongly opposed to pornography. These are common attitudes individually but the combination is mildly anomalous. Displayed as a Venn diagram, the two relevant circles would show little overlap. Admittedly the overlap between those in favour of capital punishment and those opposed to censorship would be smaller still, but Dad still has to count as something of a free-thinker.
This was very much the point made by Geoffrey Robertson in The Justice Game: that when the first ABC trial (the nickname came from the surnames of the defendants, two journalists and their source being prosecuted under the Official Secrets Act) was abandoned due to the ill-health of the judge, and Mr Justice Mars-Jones was named to preside over a new one, Robertson – representing the three – did not have high hopes of his fair-mindedness in court. Knowing that Mars-Jones J (this is how judges are styled in law reports) was a great upholder of law and order, and moreover that juries ‘ate out of his hand’, he told his clients they could expect to spend their Christmas in prison.
Instead Mars-Jones J dismissed the charges, saying that the Official Secrets Act had never been intended to be used in such a way. When told that the Attorney General had authorized the prosecution, he said (I must go to slow-motion here, it’s such a wonderful moment, a Clint Eastwood moment), ‘Then he can un-authorize it.’ Is that a cheroot clenched between Dad’s teeth, or possibly a toothpick? He has slung a dusty poncho over the ceremonial scarlet. To throw out a case in this way is a permanent possibility of judicial procedure, but it takes a strong judge to make it happen, particularly if the result will be to nullify a case that the government has set its heart on. The jingle of spurs is rarely heard in the courtroom these days.
His independence of mind was partly protected by the fact he didn’t want to rise any higher in the law. He was content to be a judge of first instance. Occasional stints in the Court of Appeal, sitting with two judges who seemed to gravitate towards points of law with a mystical certainty, convinced him that he lacked the rapid analytical processing required to excel in that arena.
I was studying in the States at the time of the ABC case, and heard only the vaguest rumblings about it. I didn’t need to know more, as I thought then, since it was so obvious that Dad would be on the wrong side. If no man is a hero to his valet, then certainly no judge is a libertarian to his son. In the ABC affair I had the excuse of geographical distance, but even when I was much closer to his professional life I ignored its possible element of idealism. There was a case in 1982, for instance, presided over by Dad, in which a Jamaican couple sued the police for assault, wrongful arrest and malicious prosecution. Dad seemed to find it mildly amusing that a black couple should have the surname White. He gave a wouldn’t-you-just-know-it shrug when he mentioned it, though he would never have thought it strange that a white couple should have the surname Black. There was nothing odder about a black person being called White than for a person called Smith not to work in a forge, or for someone called Mars to be living right here on Earth. He would have given the same sort of shrug and raised his eyebrows, mock-indulgence, mock-exasperation, if the couple in his case had been surnamed Black, though if a third party had pulled a wry face at a white person being called White he would have been puzzled about where the element of humour lay.
Of course my friendship group wasn’t the delirious funky mix my attitudes implied. Even so, I could take up anti-racist attitudes with a suav
ity that left Dad in the dust – it’s just that it wasn’t me who awarded David and Lucille White £51,392, describing police conduct as ‘monstrous, wicked and shameful’ and giving the plaintiffs some assurance, finally, that not every part of the system was contemptuous of their rights.
Fifty thousand pounds was a substantial sum in 1982. I had a friend who started work at Faber that year on a salary of £2,000 odd, in an economy and a publishing climate that seems in retrospect lustily, even obstreperously vital. (Admittedly that sort of job was always close to being an internship with pocket money thrown in, and was a respectable work environment for educated young women before they got married, even perhaps actively in search of a husband.)
There were less newsworthy cases that Dad mentioned with quiet satisfaction. One was a case of arson in the 1970s, proved by an unusual exhibit. The malefactor, against whom there was no other evidence, and who denied ever being on the premises, had eaten an apple before setting the fire, and had foolishly left the core in a desk drawer before he left. The apple core survived the blaze, and a conviction was obtained on the basis of the arsonist’s bite matching the marks that had been left on it. Almost a biblical incident – he had eaten of the fruit of the tree of the knowledge of good and evil, whereof his legal representatives would certainly have advised him not to eat. Or, if he did, to dispose of the core.
By CSI standards this was fairly elementary forensic science, but it got the job done and the criminal put away. Not a case with very wide implications, admittedly. Even a handbook of Arson for Dummies might not feel the need to warn its readers against writing their names in wet cement before torching a factory, or leaving behind photographs of themselves – in the act of striking the relevant match – locked in a fireproof safe.
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