Credit: Penguin Publishing

Bringing Down Goliath

In early 2017, tax barrister Jolyon Maugham KC established a not-for-profit with the aim of litigating ‘across a series of themes around fairness’. Good Law Project (‘GLP’) is now the largest legal campaign group in the UK. It has been involved in high-profile litigation, including challenging the government over Brexit and PPE procurement. Its website describes it as an organisation that uses the law ‘for a better world’, with Maugham now its full-time executive director.

Bringing Down Goliath, which was published in paperback this month, is Maugham’s first book. Much of it falls in the genre of legal memoir, comprising an insider’s narration of a series of GLP cases. But there is also an account of the UK constitution for the uninitiated, a critical appraisal of ‘What the Law Can Do’, a discussion of judges and judging, and a closing section entitled ‘What You Can Do’. Many prospective readers will appreciate this variety. On the other hand, anyone who comes to this book hoping to discover a sustained and continuous argument is likely to be disappointed.

Maugham is at his best when he is guiding the reader through his cases. The facts and legal issues are thoroughly and accessibly explained. Most intriguing, though, are the insights into the origins and strategy of the litigation. In one passage, Maugham explains his decision to litigate a pre-emptive challenge to the government’s prorogation plan in Scotland, where he hoped to obtain a declaration that it would be unlawful to suspend Parliament in the run-up to Brexit. He anticipated a less favourable hearing in England, believing English judges to have been ‘burned by how they were treated by the press after the Gina Miller case’. Elsewhere, he describes a breakfast with a senior HMRC official who greeted a question about Uber’s tax liability with ‘a shrug and a wrinkling of the nose’. Undeterred, Maugham devised a plan to test if Uber was VAT-liable, bringing a claim in relation to a short journey of his own. Success, he realised, would be worth £1.06 to him, but potentially more than a billion pounds to HMRC.

There are moments of humour and irony. In the main, however, Maugham writes with an earnest tone. His strength of conviction sometimes combines with a fondness for figurative language to produce a lack of subtlety. A description of the government as being ‘to transparency as a vampire is to sunlight’ is one example. The book’s title is another. A related stylistic concern is that Maugham is unafraid to mix and concatenate metaphors. In one fast-moving passage, he writes:

You can’t always see around corners and there are bound to be instances where it will turn out that you would have been better off had you kept your cards close to your chest. But if you plan to be around for a while you also need to bake into your thinking that you will inevitably drop an egg from time to time.

The merit of writing like this is that it tries to be approachable. The danger is that it ends up being confusing and platitudinous, perhaps reminding readers of George Orwell’s admonition against prose consisting of ‘phrases tacked together like the sections of a prefabricated hen-house’. The relative promise of an Audenesque simile comparing English public law to ‘a seaside resort in October… slowly packing itself up for the winter’ is similarly perplexed when Maugham mixes in the image of judges ‘abandoning their posts’. The passage culminates in the synthetic conclusion that ‘[t]he question still open is whether there will be a spring again, when judges come out to resume guard…’.

Bringing Down Goliath is no treatise, nor does it pretend to be. Nevertheless, what stands out from a theoretical perspective is Maugham’s idea of the law as a campaigning tool. He describes launching one judicial review that was ‘[i]n substance… a piece of exploratory journalism’. One might wonder if this is an appropriate use of the legal process. Maugham’s answer is that, at least in our current world, it is. With ministers caring ‘less and less about legal compliance’, the conventional public law mechanisms take on a different significance. He writes:

‘During the course of the two years we ran our PPE campaign we generated literally thousands of pieces of mainstream, national media coverage about the scandal… Against that background, the ultimate decision in the case was almost irrelevant.’

Appraisals of this attitude are likely to differ. On the one hand, justice and disclosure have long been conceived as two sides of the same coin: the symbiosis is striking in Greek tragedies like the Oresteia of Aeschylus. On the other, complex and expensive court proceedings clearly amount to more than a high-powered journalistic device. And it may well be counter-productive to use them as one. If going to law becomes less about the legal issues than the information that can be excavated by contesting them, then the attention paid to the Courts’ determinations of those issues will not revive itself but decline still further. 

Overall, Bringing Down Goliath is a generally readable – if at times clumsily constructed – account of Maugham’s activities in the ‘cause lawyering’ field. His reflections on using the law as a tool for social justice are worth engaging with, particularly for those interested in the theoretical implications of the law’s operation in practice. On that point, this reviewer would have appreciated a fuller discussion and a clearer thesis, but it is acknowledged that this book is marketed for the general reader.