Sir John Chilcot began his Inquiry into the events around the Iraq war in 2009. In his latest explanation of continued delay he said that “we have for some time been engaged in the ‘Maxwellisation’ process, in which individuals are given the opportunity to respond to provisional criticism of themselves in the inquiry’s draft report”.
He referred to the inquiry’s witness protocol, which states that any person who might be criticised “will, in accordance with normal practice, be provided with relevant sections of the draft report in order to make any representations on the proposed criticism before publication of the final report”.
In 1974 Lord Denning, perhaps the most famous English judge of the second half of the 20th century, explained why this procedure could not work. “Just think what it means”, he said. The inspectors listen to the evidence and reach tentative conclusions. If they criticise any of the witnesses, “they have to reopen the inquiry, recall those witnesses, and put to them the criticisms which they are disposed to make . . . In short, the inquiry will develop into a series of minor trials in which a witness will be accused of misconduct and seek to answer it. That would hold up the inquiry indefinitely.”
Lord Denning was delivering the leading judgment in the Court of Appeal in the case of Maxwell v Department of Trade and Industry. Few cases have been so extensively misrepresented.
The affairs of Robert Maxwell, the corrupt publisher, were first investigated in 1969 by a distinguished QC and a leading accountant, appointed by the Department of Trade. The inquiry found extensive evidence of Maxwell’s misconduct and concluded that “he is not in our opinion a person who can be relied on to exercise proper stewardship of a publicly quoted company”.
Maxwell issued a writ claiming the inspectors had failed in their duty to be fair and accurate. He also sought an injunction to halt further inquiry into his companies. The judge, Mr Justice Forbes, refused that application, but made criticisms of the inspectors’ procedure. At full trial, however, the judge was dismissive of Maxwell’s claims. The inspectors had, he said, acted “eminently fairly” despite Maxwell’s “deliberate obstruction”.
That judgment was upheld on appeal, when Lord Denning and his colleagues drew a distinction between the evidence on which the conclusions of the inquiry were based — which Maxwell must be given an opportunity to refute — and the conclusions themselves, which the inspectors had been entitled to reach without further reference to Maxwell.
Mr Justice Forbes thought that the damning report of the Department of Trade inspectors amounted to “business murder”: that no one would do business with Maxwell again. But the judge was wrong. Throughout the 1970s, Maxwell’s private company, Pergamon, exploited the market for scientific journals: he recognised that university libraries must take the leading titles in each discipline regardless of cost.
With the cash thus accumulated he took control in 1981 of the failing British Printing Corporation and went on to achieve his primary ambition of controlling a national newspaper, the left-leaning tabloid the Daily Mirror.
With memories blurred by the passage of time, Maxwell conveyed the impression that his legal challenges to the report of the DTI inspectors had been a vindication, not a failure. Criticism of Maxwell or resurrection of his past was met with threats of legal action. Only after his mysterious death at sea in 1991 did his fraudulent empire unravel.
The use of the word “Maxwellisation” to describe a process by which the rich and powerful obstruct criticism of their actions is, perhaps, an appropriate legacy for one of the most flamboyant and litigious crooks of recent times.
This article was first published in the Financial Time on September 16th, 2015.