by Mark Steyn
The War on Free Speech
At the turn of the century, Michael E Mann’s “climate change” hockey stick was the world’s most famous and instantly recognizable scientific graph, tirelessly promoted by UN propagandists and mailed by governments around the world to each of their citizens as the pretext for whatever warmist boondoggle they had in mind. The hockey stick is a crock – but Mann likes to sue if you point that out, and enviable sinecures such as the high office of personal climatologist to Jessica Alba have ensured he has apparently bottomless pockets.
Nevertheless, a few weeks ago, the indefatigable Anthony Watts broke the news that Dr Tim Ball had prevailed in Mann’s defamation suit against him. As many of you know, the climate mullah’s other defamation suit – against yours truly – is currently in its eighth year in the constipated bowels of the District of Columbia court system. So I was interested to learn the disposition of the Mann vs Ball case, now in its ninth year. Mann had sued Ball for reprising an old joke that the guy belonged in the state pen rather than Penn State. Jessica Alba doesn’t diss him like that, and Doctor Fraudpants sees no reason why anyone else should be allowed to.
Well, Mann’s suit is now well and truly dead. Unfortunately, the Honourable Mr Justice Giaschi of the British Columbia Supreme Court did not issue a written decision but ruled from the bench – which I always enjoy if I happen to be in the room, but which otherwise means you have to wait until the court stenographer types it all out. Which he or she has now done.
In the meantime, Doctor Fraudpants issued his own response to His Lordship’s decision, denying he had lost at all, no way, no how:
There have been some wildly untruthful claims about the recent dismissal of libel litigation against Tim Ball circulating on social media. Here is our statement:
The defendant Ball did not ‘win’ the case. The Court did not find that any of Ball’s defenses were valid. The Court did not find that any of my claims were *not* valid.
The dismissal involved the alleged exercise of a discretion on the Court to dismiss a lawsuit for delay. I have an absolute right of appeal. My lawyers will be reviewing the judgment and we will make a decision within 30 days.
The provision in the Court’s order relating to costs does NOT mean that I will pay Ball’s legal fees.
This ruling absolutely does not involve any finding that Ball’s allegations were correct in fact or amounted to legitimate comment. In making his application based on delay, Ball effectively told the world he did not want a verdict on the real issues in the lawsuit.
Almost every word of the above statement is false, starting with the evasive phrase “dismissal of libel litigation” unmoored from any proprietorship. It was his case, his suit, his action that was dismissed. Truly, the scale of Mann’s lies is the most impressive thing about him. Intriguingly, although the words initially purport to be “our statement”, the fact that they are in the first person – “my claims”, etc – suggests that his counsel, Roger McConchie, a skilled advocate widely respected in British Columbia, was not willing to put his own name to such arrant poppycock. (Full disclosure: Mr McConchie was Maclean’s co-counsel, alongside my valiant chum Julian Porter, QC, in the Canadian Islamic Congress’ attempt to criminalize my writing a decade back. Mann made a canny selection here: His total failure in court cannot be laid at counsel’s door.)
So I would urge all those other than his usual doting Mannboys to read the Court’s actual judgment.
For a start, although Mann always presents himself as the victim, it is important to remember that, in this case as in mine, he is the plaintiff: He chose to sue – and without that conscious choice there would be no legal action. So, when Mann says there was no “finding that Ball’s allegations were correct”, Ball did not allege anything: That is a legal term and the only allegations before the Court were Mann’s, in his statement of claim against Ball. Those Mann allegations have been dismissed with prejudice – so, in layman’s terms, Mann lost and Ball won.
Mann uses the term again: “The dismissal involved the alleged exercise of a discretion on the Court.” These words make no sense – which is one reason why they cannot have been written or approved by Mr McConchie, a barrister of over four decades’ experience, or even by his American lawyers, a far more slippery breed in my experience but rarely, at Mann’s level, nakedly brazen liars (except over that Mann-the-Nobel-Laureate hooey). So the client is flying blind here and being utterly fraudulent: The implication seems to be that the defamer Ball is getting on a bit and not man enough for a trial so a kindly judge took pity on him and out of the goodness of his heart chose to “exercise a discretion” and bring the whole thing to an end.
That’s not what happened. Dr Ball acted and filed a motion to dismiss; Mann fought that motion tooth and nail, albeit with what an obviously irked judge derided (page six) as “completely irrelevant evidence”. Ball’s motion to dismiss was so ordered by the Court. It is a judgment like any other – so it’s only an “exercise of a discretion” if you think a verdict of triple homicide is an “exercise of a discretion”. Mann is talking complete bollocks here, misleading his Mannboys in order to deny the great stonking totality of his defeat.
Mann further says that “the Court did not find that any of Ball’s defenses were valid”. That is a ludicrous inversion of the law. As His Lordship says upfront:
The plaintiff, Dr. Mann, and the defendant, Dr. Ball, have dramatically different opinions on climate change. I do not intend to address those differences.
Why’s that? Because he doesn’t need to. Because, after eight years of jerking around both the defendant and the BC judicial system, the phony plaintiff Mann never laid anything before the Court that would require it to “address those differences”. Under Canadian or American or Tuvaluan law, defendant Ball is not required to “prove” anything; the burden is on plaintiff Mann to prove his case. If he doesn’t bring a case, then (to use the English formulation) there’s no case to answer.
Which is exactly what happened. As the judge spells out, Mann commenced this action on March 25th 2011, filed a second amended statement of claim in June 2012, and then (page three) ground to a halt:
d) From approximately June of 2013 until November of 2014, there were no steps taken in the action;
e) November 12, 2014, the plaintiff filed a notice of intention to proceed;
f) February 20, 2017, the matter was initially supposed to go to trial, but that trial date was adjourned;
g) July 20, 2017, the date of the last communication received from Mr. Mann or his counsel by the defendant. No steps were taken in the matter until March 21, 2019 when the application to dismiss was filed.
Even a judge is capable of simple arithmetic. He notes that there have been at least two approximately year-and-a-half periods when plaintiff Mann did bugger all – not a solitary thing. Whether or not this is because he dare not cough up for discovery his magic climate-apocalypse formula is a question I leave for another day. But, as a basic principle, a plaintiff has a legal duty to prosecute his case – and Mann didn’t, year in, year out, for nigh on a decade. As the Court ruled (page five):
This is a relatively straightforward defamation action and should have been resolved long before now. That it has not been resolved is because the plaintiff has not given it the priority that he should have. In the circumstances, justice requires that the action be dismissed.
Which is to say it’s over and Mann lost. Whatever the floundering Fraudpants regards in the fevers of his brain as “the real issues”, this judgment is binding on them as it is on all other aspects of his complaint: The Court has found that Mann’s inexcusable behavior prejudiced the defendant, and therefore the case is dismissed. As a point of law, that is a dismissal on the merits: Whatever his “real issues” with Ball, they’re over and done, forever. Tim Ball can declare that Mann belongs in the state pen every day of the week for the next thirty years – because that vital legal question has been adjudicated, and Mann blew it. I’m not surprised none of his lawyers, Canadian or American, want to put their names to Mann’s tosspottery above – because you’d get disbarred if you argued as insanely as this before a judge.
When a plaintiff fails to prosecute his case, there’s usually one of two reasons:
a) It might be because he and his lawyers are utterly incompetent. That we can rule out, if only because of his highly professional counsel. It seems a reasonable inference that the failure to prosecute, therefore, is Mann’s personally. Which brings us to the second reason:
b) The plaintiff has no case.
Mann huffs and puffs:
In making his application based on delay, Ball effectively told the world he did not want a verdict on the real issues in the lawsuit.
Au contraire, in refusing to bring his case to trial, it was the dilatory cockwomble Mann who told the world he did not want “a verdict on the real issues in the lawsuit”. As the judge patiently explained in language even a climate scientist can understand, the liability for the failure to have “the real issues” adjudicated is Mann’s and Mann’s alone.
The litigious loser now sneers that he will not be paying Dr Ball’s legal fees. That may be true, given that he’s holed up in another country and may well simply sit tight and refuse to do the decent thing. But the court will certainly rule that he should pay Ball’s fees, and in fact has already done so. “Costs” in British Columbia, unlike in certain US jurisdictions, include all the burdens of fighting a lawsuit, divided into “disbursements” (the cost of photocopying your exhibits, etc) and “tariff items”, which includes lawyer time. The latter are assessed on a sliding scale of “units”, from sixty bucks per unit to $170 for more “difficult” cases. I would have thought, given the Court’s ruling, that Mann’s delaying actions over many years would certainly put this action in the “difficult” category.
Dr Ball will not, as a practical matter, recover one hundred per cent of what the last decade has cost him, but I would reckon, again from the ruling, that he would be entitled to “special costs”, which would come pretty close. As the Court held in Skidmore vs Blackmore (1995):
One of the purposes of the costs provisions in Rule 37 is to encourage conduct that reduces the duration and expense of litigation, and to discourage conduct that has the opposite effect. Thus, although it is true that costs are awarded to indemnify the successful litigant for legal fees and disbursements incurred, it is also true that costs are awarded to encourage or to deter certain types of conduct.
Mann’s conduct, as found by the judge, is exactly the type of conduct the costs provisions are entitled to deter. Either way, unless he flat out defies the Court (which I would not rule out), Mann is lying when he says he will not be paying Ball’s fees, at least in part.
Doctor Fraudpants further chunters that he has “an absolute right of appeal”. To which I would only caution: Don’t go there, girlfriend.
As to my own case, a lot of Justice Giaschi’s ruling had a familiar ring to me. Page five:
The evidence is that the defendant intended to call three witnesses at trial who would have provided evidence going to fair comment and malice. Those witnesses have now died.
Me before the District of Columbia Mausoleum of Justice three years ago:
Lawyers representing conservative political commentator Mark Steyn have asked the D.C. Superior Court to expedite his case against climate scientist Michael Mann, mentioning a key witness died waiting for the trial to go to court.
But, of course, under the American perversion of Common Law, inordinate delay is standard operating procedure. In Mann vs Steyn, the slow-motion plaintiff is now drawling lethargically that, alas, he will be Down Under on “sabbatical” for the next six months so cannot be deposed until he returns sometime in 2020… or 2021… Personally I don’t see why he can’t be deposed in Oz, either by some top-notch Queensland or Victoria silk or indeed, if I happen to be in town, by my good self. But we will see how the DC court rules on that.
To reprise my old line, the process is the punishment: in America fraudulent plaintiffs routinely launch suits that, as with Mann in British Columbia, they have no intention of ever bringing to court, preferring merely to slow-bleed you into settling – as, to their great shame, Ball’s wanker co-defendants the Frontier Centre for Public Policy, did. (It is depressing how useless so many institutions of the right prove when push comes to shove.)
Despite a decade-long onslaught, and to his lasting credit, Tim Ball stood firm – and won. I can do no less.