UPDATE: Michael Mann Doubles Down over ‘Contempt’ Issue

Michael ‘hockey stick’ Mann doubles down on his crumbling SLAPP lawsuit versus Tim Ball with a statement of denial from his lawyer posted on Mann’s Facebook page and tagged with #FakeNews. In a screed of hand-waving assertions, the statement fails to deny Mann abused process, breached a written undertaking during the trial and, as a consequence, now faces the most serious court sanctions.

Earlier this week an emboldened Dr. Tim Ball, Canada’s most famous skeptic climatologist, came out, all guns blazing with stunning news in what is billed as the “science trial of the century.” The outcome of this case will have grave knock-on implications on the validity of all government secret science relied upon in the hotly-contested ‘man-made global warming’ debate.

Conspicuously, Mann’s attorney, Roger McConchie, who “literally wrote the book” on Canadian libel law, does not deny Mann is in breach of a legally-binding undertaking signed by both parties last February. It turns out Mann duped Ball into signing a deal that gave Mann more time (as if six years of litigation time wasn’t enough!).

In return, Mann agreed to hand over his secret ‘hockey stick’ graph data used for the validation of hundreds of science papers ‘proving’ humans are dangerously warming the planet. So crucial is Mann’s ‘science’ to the climate debate that when Ball called him out for fakery six years ago (by declaring Mann “belongs in the state pen, not Penn. State”), he rolled out a multi-million-dollar legal machine to crush 79-year-old Ball.

After Ball’s astonishing news that Mann went bad on that deal his colleagues at Principia Scientific International posted a damning article in support of their co-founder, which went viral.

Ball told of how Mann contemptuously broke that agreement and did not release his hidden, and thus disputed, ‘hockey stick’ graph data. Mann’s breach of that formal undertaking, even in the deluded mind of a green activist, is a serious contempt warranting sanction. Under British Columbia case law (see below) Mann’s breach is both an unlawful act as well as an admission of guilt.

In reply to Ball’s announcement comes a statement from Mann’s lawyer that conspicuously fails to address the key issue from Tim Ball’s recent statement that:

“Michael Mann moved for an adjournment of the trial scheduled for February 20, 2017. We had little choice because Canadian courts always grant adjournments before a trial in their belief that an out of court settlement is preferable. We agreed to an adjournment with conditions. The major one was that he [Mann] produce all documents including computer codes by February 20th, 2017. He failed to meet the deadline.”

Quite simply, Mann was graciously being granted more time (obviously six years and counting isn’t time enough!) in the hope he would offer Ball an out of court settlement. In return for being granted more time, Mann finally agreed to hand over his dodgy data.

Now, readers are invited to contrast and compare Ball’s words with that of the new statement issued by Mann’s lawyer made in reply. McConchie writes:

Contrary to the nonsensical allegations made by John O’Sullivan in his July 4 posted on climatechangedispatch.com and elsewhere, plaintiff Michael Mann has fully complied with all of his disclosure obligations to the defendant Tim Ball relating to data and other documents.

No judge has made any order or given any direction, however minor or inconsequential, that Michael Mann surrenders any data or any documents to Tim Ball for any purpose.

Accordingly, it should be plain and obvious to anyone with a modicum of common sense that Mann could not possibly be in contempt of court.

Just to be clear: Mann is not defying any judge. He is not in breach of any judgment. He is not, repeat not, in contempt of court. He is not in breach of any discovery obligations to Ball.

In this context, O’Sullivan’s suggestion that Ball “is expected to instruct his British Columbia attorneys to trigger mandatory punitive court sanctions” against Mann is simply divorced from reality.

Finally, a word about the actual issues in the British Columbia lawsuit.

If O’Sullivan had read Ball’s statement of defense, he would immediately see that Ball does not intend to ask the BC Court to rule that Mann committed climate data fraud, or that Mann, in fact, did anything with criminal intent.

O’Sullivan would have noticed that one of Ball’s defenses is that the words he spoke about Mann (which are the subject of Mann’s lawsuit) were said in “jest.”

The BC Court will not be asked to decide whether or not climate change is real.

So there is no chance whatsoever that any BC Court verdict about Mann’s libel claims against Ball will vindicate Donald Trump’s perspective on climate change.

Roger D. McConchie, Lawyer

Readers will note no mention there of the intentional failure of Michael Mann to comply with the terms of the agreement. The surrender of Mann’s hidden ‘hockey stick’ data had to have been made by the deadline date of February 20, 2017.

The key words omitted by these climate ‘fake news’ peddlers are that Ball:

“…agreed to an adjournment with conditions. The major one was that he [Mann] produce all documents including computer codes by February 20th, 2017. He failed to meet the deadline.”

Adverse Inference Jury Instruction

Now, Mr. McConchie is billed as Canada’s top libel lawyer. So, he should know the consequences of his client’s failure to “produce all documents including computer codes” by the agreed deadline.

Of course, no judge has made any ruling on that issue – yet. This is because the court must wait until Ball’s lawyers have carefully fashioned a suitable remedy before they may rubber stamp it. What Tim Ball’s choice of remedy remains to be seen. The laws in British Columbia provide Ball with some powerful options. Not least of which is invoking the ‘adverse inference’ doctrine (a remedy to make a litigant whole again in the event the opposing party contemptuously withholds/destroys data).

Now let’s see some more of just how much the wheels are coming off Mann’s legal train. McConchie flounders:

“If O’Sullivan had read Ball’s statement of defense, he would immediately see that Ball does not intend to ask the BC Court to rule that Mann committed climate data fraud.”

How does McConchie know what Ball intends to now ask the court, did Ball or anyone anticipate Mad Mikey subsequently being so brazenly contemptuous of due process? Of course not! Professor Mann has, since 1998 and the publication of his infamous graph, been feted worldwide as a leading climate expert, a savior of Mother Earth. He thinks he is above the law, you see.

But reality now beckons and Ball is, as per B.C. court rules, entitled to have his lawyer fashion any reasonable remedy to right this wrong. He can, if he wishes, apply to enforce the crux of the ‘truth defense’ he has relied on from the outset. This strategy permits Ball, if Mann doesn’t show his hidden data, to be vindicated under the law such that Ball’s words, that Mann belongs in jail for data fraud, are true. Not releasing his secret science for open courtroom examination means, legally, this is an omission proving a guilty mind. B.C. case law is specific on this, it tells us intentional withholding of key evidence is an “admission of guilt” (id.).

So, what now for this serial liar and SLAPP suit specialist?

Well, things look mighty bleak for both Mann and McConchie hereon in. This is because a lawyer’s written undertaking during trial is not just an enforceable agreement, it is something the breach of which can give rise to professional regulatory sanctions. He could lose his law license.

There are many rules Mann and his hot shot lawyer have breached (inc. but not limited to: B.C. Court Rules; (19)’ An order under subrule (18) (an ‘Order by consent’); Rule 7-2 (1) (a); (2) (a) through (e); (14); Rule 7-7 — Admissions, etc).

In such cases, where the wronged party has been unlawfully denied access to the evidence, British Columbia (the jurisdiction where this case is being tried) permits a choice from among some powerful remedies. These exist to make wronged parties whole again when they suffer such an egregious transgression as Mann’s (some examples here).

Using case law precedents (such as Hodgins v. Street) Dr. Ball may likely ask for an ‘adverse inference’ remedy. This kind of remedy allows an insertion in the final court judgment to say that Mann refuses to disclose his dodgy ‘hockey stick’ data because to do so would have proven the truthfulness of Ball’s statement that Mann “belongs in the state pen, not Penn. State.” In other words, Mann did commit criminal fraud with his graph [1]

As such, McConchie erred when he claimed:

“…there is no chance whatsoever that any BC Court verdict about Mann’s libel claims against Ball will vindicate Donald Trump’s perspective on climate change.”

The reason? If Dr. Ball’s remedy is that the final judgment shows his “state pen/Penn. State” words were truthful because Mann does not disprove them and thus is ruled to have hidden his data from “a consciousness of guilt,” Ball’s words are made factual under the law. Then from that, more Mann misery might ensue. This could come under the legal doctrine of res judicata, this can have very grave legal impacts beyond Canada. [2]

For example, Mann cannot, once this case is concluded to Ball’s satisfaction, proceed with any hope of success with his numerous other SLAPP lawsuits in the United States. This is because the doctrine of res judicata is well established by comity across jurisdictional boundaries. Mikey’s acts and omissions in the Mann-v-Ball lawsuit become precedents to which other common law international courts cannot controvert.

Upon a Ball victory premised on such an adverse inference, every other court would struggle not to accede to the fact Mann is proven to have criminally used his “Nature Trick’ to deceive world leaders, the UN, and environmentalists into believing modern global temperatures were unprecedented and ‘dangerous.’

Thus, we see the nonsense of McConchie’s disingenuous assertion, “Ball does not intend to ask the BC Court to rule that Mann committed climate data fraud, or that Mann, in fact, did anything with criminal intent.”

It seems McConchie wants to deflect from the premise of his client’s lawsuit, which asserts Ball lied to defame Mann when he used the words that Mann “belongs in the state pen, not Penn State”. By shrewdly adopting the ‘truth defense’ with its high evidential burden, both the parties, in this case, had to proceed to a final outcome that determines whether Ball’s was a truthful statement or a lie.

Balls words become the truth when, after six years of litigating on it, Mann finally decides he is better served, at the last minute, by ripping up his legally-binding undertaking. By abandoning his legal burden to show his data, Mann chose to fail because he risked a worse fate by showing his hidden ‘science’. By his own omission to disclose, Mann chose the less severe of the outcomes. The more severe would likely warrant Mann’s incarceration in the state penitentiary.

Now the court must rule Ball told the truth. Mann’s omission to prove those words untruthful makes them truthful under the law. Mann does, indeed, belong in the state penitentiary for the very reasons Ball and many global warming skeptics have said repeatedly; Mann’s “Nature Trick” when creating his graph was fraud to the level of criminality.

This is the whole point of why Canadian courts (like other common law jurisdictions) allow the truth defense – to whittle away all the waffle and spin so the truth is found out.

[1] British Columbia case law details ‘adverse inference’ as follows: The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192: “…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.”

Also, with Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describes the principle at para. 6.321:

“In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.”

[2] This is because res judicata is also known as claim preclusion. It is the Latin term for “a matter [already] judged”, and refers to either of two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on same issues between the same parties. In this latter usage, the term is synonymous with “preclusion”.

In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.

The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished, but perhaps also or mostly a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones but also prevents litigants from multiplying judgments, and confusion.

Read more at Principia-Scientific, Intl.