Best Efforts in UK Law

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

The weight to be given to these competing interests will depend upon the facts of the case, but there can in time of peace be no public interest which is more weighty than protecting the state against terrorism and, on the other hand, the Convention rights of the individual which may be affected by the orders are all themselves qualified by the requirements of national security.

I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with article 6. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism.

I agree further that the special advocate procedure, highly likely though it is that it will in fact safeguard the suspect against significant injustice, cannot invariably be guaranteed to do so.

The claimant's counsel supported the application for summary judgment by a 22 page skeleton argument, accusing the defendants of "diversionary tactics designed to try to avoid summary judgment," It was submitted that the case nevertheless "remains a matter appropriate for summary disposal." But already the seeds of doubt have been sown about how open and shut the case really is and whether the court should set out along summary judgment road at all.

Section 14(1) of the Constitution declares that, without prejudice to any other action with respect to the same matter which is lawfully available, a person may apply to the High Court for redress by originating motion in such circumstances. This procedure enables the person who seeks a quick judicial remedy to avoid the delay and expense which a trial of the case by means of an ordinary civil action will involve.

It follows that on the present occasion it is not necessary to go beyond Section 12 of the 1998 Act and Clause 3 of the Press Complaints Commission's code to find the ground rules by which we should weigh the competing considerations of freedom of expression on the one hand and privacy on the other. They did not choose to have a private wedding, attended by a few members of their family and a few friends, in the normal sense of the words "private wedding".