This is not, strictly speaking, a post about entrepreneurship, but all of us who work on the internet should unite to defend it against “super-injunctions” being issued illegally by British courts.

These are in effect general gagging orders, preventing the publication of true stories that are considered embarrassing. Even the names of those who apply for such orders cannot be published.

This is precisely the sort of attack on free speech for which the likes of the government of Red China are generally and rightly condemned. They are immoral in a free country. More than that, they are very, very stupid.

For a start, they are counter-productive. Stories that would otherwise be forgotten by the time the next day’s newspapers came out have become the subject of ongoing speculation. The pretext that the orders protect an adulterer’s children is laughable, since those children’s contemporaries were probably the first to find out the real facts on-line.

Meanwhile, the speculation has, as speculation always does, led to other people being falsely accused of being the ones who took out the super-injunctions. The courts seem to have ignored the fact that these innocent victims might have children too.

Yet it is not only the consequences, but the whole concept, of the super-injunction that undermines the reputation of the British judiciary. It is illogical to the point of absurdity for the courts to order us not to say that X is an adulterer when the order does not tell us who X is! How can we obey an order we have not been given?

The super-injunctions farce is part of a deeper problem. The British constitution relies on an implicit understanding that the judiciary will remain politically independent in return for not interfering in the political process of law making. However, judges have recently – especially since the Americanised title of “Supreme Court” was introduced – been behaving more and more like politicised American judges, and are making up their own laws on the bench. That there is no legislation or tradition to support the notion of super-injunctions is just one more example of this.

Perhaps there is a business issue here after all. Legal services are a major British export. International contracts often used to contain a clause that disputes would be resolved in British courts, because they were considered apolitical, fair and consistent. That will change if British judges keep making it up as they go along.

Make no mistake, Bernard Madoff is a very nasty man. It is not just that he is a thief. Nor is it that he is a spectacularly big thief. No, what is nasty about Mr Madoff is that he stole cold bloodedly from people who trusted him, many of whom saw him day after day, year after year, and whom he encouraged to look on him as a friend.

Yet almost as nasty as Madoff is the lynch mob mentality that has arisen in response to his crimes. Madoff himself has been sentenced to 150 years in jail. This is the sort of meaningless figure that brings the legal system into disrepute. It was prompted solely by a public desire for revenge, not by any real sense of proportion. Madoff will die in prison – perhaps he deserves no less, but it cannot be right that there will be murderers and rapists paroled when he is not.

Now, with a plot twist curiously reminiscent of the television drama Damages, Madoff’s son, Mark, has been found hanged on the second anniversary of his father’s arrest. It can be no coincidence that Mark was one of a large number of defendants in a series of lawsuits filed the previous week by the court-appointed trustee who is responsible for recovering the bankrupt Madoff’s assets.

The trustee clearly thinks it is better to be seen to leave no one un-sued – he is even suing Madoff’s underage grandchildren – than to maximise the amount recovered for Madoff’s creditors by taking a calm, rational approach which would be criticised by the vengeful media. He has therefore adopted a shotgun approach – blasting everything in sight – when what is needed is a careful scalpel to unpeel Madoff’s complex dealings layer by layer.

While his methods may protect him from public opinion, expensive and prolonged litigation is unlikely to benefit Madoff’s creditors, least of all the defrauded investors, who are fairly well down the legal order of priority. Legal expenses will eat into such assets as can be recovered, making lawyers rich at the expense of victims.

Meanwhile, the innocent will suffer with the guilty. A fair trial in New York is unlikely in the current climate. Even those who are eventually exonerated face years of stress, expense, and uncertainty. The legal system can leave a “winner” as bankrupt as a “loser”.

This is not to say that those who collaborated with Madoff, or were criminally negligent, should escape responsibility. However, it must be understood that litigation is always a blunt instrument and there are better ways of handling complex problems. If any good can come from the death of the younger Mr Madoff, it might be the injection of some common sense into sorting out the mess left by his father.  

An entrepreneur’s most valuable asset is his time.

It is the only commodity subject to an absolute limit. It cannot be bought, sold, transferred, assigned, or delegated. You only get a certain amount, no more. Most of us feel we do not have enough of it – certainly not in the working day.

Yet the world treats our time with contempt – as if we had an infinite amount of the stuff to waste.

Since the proportion most of us spend on administrative tasks is fairly constant, anything unexpected cuts into the time we set aside for earning. This is particularly annoying when the unexpected takes the form of avoidable disputes or vexatious litigation.

In British courts, it is theoretically possible to recover all reasonable legal costs if you win in court. In practice, most winners still end up out of pocket. Even if you do get your full legal costs, you are most unlikely to cover your personal costs. It also adds insult to injury when your lawyer gets paid lavishly for his time and you get nothing for yours.

So, even if you are in the right, a strict cost-benefit analysis of pursuing a case all the way to eventual victory usually concludes that it is cheaper not to bother – and, of course, your opponents are counting on you coming to that conclusion and not bothering.

All credit then to our latest hero, the aptly named Barry Payling. Like most British people at some time or other, the self-employed photographer found himself being pursued by an incompetent but intransigent arm of the Establishment – in his case, the utility British Gas – for money he did not owe. Unlike most, he had the brains to keep a detailed record of how much time he wasted on this unnecessary dispute, and the courage to sue them for it.

British Gas settled before going to court and paid Mr Payling £2,000 – about $3,000 – for his time. This is a victory in which we should all rejoice. It would be churlish to suggest that it would be an even greater victory, worthy of even more rejoicing, if the case had gone to court and Mr Payling had won there. Then a judge would have approved a precedent that would have been of benefit to others in similar situations.

The irony is that it would benefit not only the wronged entrepreneurs but the bureaucrats, bankers, and big businesses who wrong them. If they knew they would have to pay the full financial costs of their inefficiency, perhaps they would try to be a little less inefficient.