Anecdotes are not analysis

Recently I was struck by an article on the BBC website whose stated subject was delays in implementing reforms to leasehold tenure in England. The hook in the article was an extended story of a family who owned a leasehold flat but had the bad luck to have an owner of the freehold which decided to add two stories to the top of their building. The building work turned out, perhaps not surprisingly, to be a disaster, leaving the family with no roof and a complete mess in much of their accommodation.

I have great sympathy with the circumstances of the leasehold occupier. Several decades ago, we found ourselves living through a Cambridge winter with no roof because a building project to upgrade our house was badly delayed. My wife was pregnant at the time and wisely she fled to spend most of the winter in Italy.

Building improvement disasters are not unusual. In this case, the impact was worsened by the family having no control over the decision to extend the building upwards and the performance of the builders. As is all too common in such cases, there were the usual elements of cowboy developers failing to honour promises and then declaring bankruptcy.

Notwithstanding the sympathy one has for the family caught up in the mess, the anecdote tells us almost nothing about the issues of leasehold reform. Similar building disasters occur for tenants and under alternatives to leasehold tenure such as commonhold. Also, it is not always bad freehold owners who are responsible for such disasters. At another time, we lived in a leasehold flat whose freehold was vested in the City of London Corporation, generally a good and responsible manager of their freeholds. Unfortunately, they managed to make a complete mess of upgrading lifts and repairing the roof of our building.

The anecdote was presented as a parable of the flaws of leasehold tenure, but it had almost no relevance to the problems of managing the common facilities in buildings with multiple owners. In any year, how many leasehold owners are affected by their freeholder adding floors to their building? Maybe 10 or even 100, but probably not more. Serious though individual cases may be, the major problems lie elsewhere – in how freeholds are sold, and how common services are managed and charged for. It doesn’t make sense to implement major and costly reforms to deal with occasional though very extreme outliers.

My point is not really about the case for or against reforms to leasehold tenure. It is rather that the journalist who wrote the article for the BBC website relied upon an extreme, if touching, anecdote to make a case criticising delays in leasehold reform, even though the anecdote was entirely irrelevant to the complexity of the issues involved.

This is an all-too-common journalistic trope that is deliberately promoted by schools of journalism. Find a vivid or moving story and then massage it to fit in with whatever you were trying to argue. Let me give another example, closer to what I normally write about. Every year, opponents of wind farms take pictures of wind turbines that have failed in some dramatic way – catching fire or shedding their blades – so they circulate articles in which such individual failures are taken as symptomatic of the whole sector.

Please think again! Where I live in Scotland, we have several storms each year which cause large trees to fall over or lose branches or break in other dramatic ways. Is that a good reason not to plant trees? Of course not, though it is a warning to be careful how close to neighbouring structures you let them grow.

Wind turbines and large trees are prone to fail – not a lot of them in any storm but some. Eventually - over decades or centuries – everything breaks or fails in other ways. That is not a good reason to object to either trees or wind turbines, provided they are located with an adequate separation from nearby buildings or other assets.

The device of telling a vivid story as a way of introducing and dramatizing complex issues is so ingrained that it distorts the way in which (supposedly) analytical stories are prepared as well as presented. The PR people who work for interest groups and lobbyists know that journalists want human interest stories. Writers are often short of the time necessary to prepare any kind of rigorous analysis. Their native inclination is to focus on anecdotes rather than explaining more general arguments. Hence, a common PR strategy is to approach journalists with pieces which combine a good story combined with their employer’s or client’s line on a current issue of debate.

All too often, such approaches are very effective as a way of feeding media outlets, especially those that rely heavily on clicks or similar metrics to generate revenue or judge their impact. In the article cited, the problems highlighted were due to (a) the use of almost totally incompetent and irresponsible builders, combined with (b) the failures of and delays in building controls by the local authority and courts. But none of that was discussed. In large part, the anecdote highlights the all-too-familiar story of builders and developers which go into liquidation to avoid liability arising from projects which go wrong.

However, by presenting it as a story about a delinquent leaseholder the journalist shifts the focus to delays in implementing the provisions of a recent act reforming leasehold tenure which would have made no difference in such a case. Reading between the lines of the story it is very likely that it was prompted by lobbying from a campaign group, since it focuses on arguments that are completely at odds with core principles of company law and limited liability.

The same story, though organised differently, might have been more convincing had it covered the issue of how best to protect third parties and clients from the dire harm caused by cowboy builders. Should all builders be required to demonstrate that they have either posted bonds or have liability insurance which cannot be cancelled and extends for 12- or 24-months past project completion? Building regulations are not designed to deal with the liability issue and the legal system is far too slow and expensive to provide adequate redress in any but the largest cases.[1]

To produce an article of wider significance the journalist would have had to (a) understand the issue that I have highlighted and, probably, (b) disappoint the campaign group which wants to lobby for the rapid implementation of reforms to leasehold tenure. Of course, a journalist could use the same case to illustrate two stories – one on leasehold reform (to keep the source happy), and another on dealing with cowboy builders. Sadly, such an approach would require a journalist who can step back from the anecdotes to provide both context and analysis of the issues.

There is a larger point that lies behind this: the almost complete disappearance (even from broadsheets and most magazines) of long form journalism that can tackle major issues. Today, journalists are either storytellers or reporters who rely upon opinions from a small group of (often) lobbyists. Of course, there is always Substack and other similar outlets. Still, who is going to take on the extent to which company law and limited liability facilitate the repeated bad behaviour of cowboy builders? The victims are often small and relatively powerless, so they attract little attention.

This is not the place to examine the general issue of media coverage of complex and technical issues. Still, the strong tendency among journalists to rely upon anecdotes as a substitute for more careful analysis exacerbates what is a strong bias against better coverage of such topics.

[1] For nerds: There is a detail in the report which implies that the third-party claimants tried without success to persuade the court to set aside the limited liability shield. Any bank or insurer underwriting a bond or liability insurance is likely to require some kind of personal guarantee that effectively nullifies limited liability. This highlights a crucial weakness of company law, which protects risk-takers as well as bad actors but at the expense of third parties who may suffer the consequences of poor performance or irresponsible behaviour. While third-party liability insurance is available, it is not mandatory and is often heavily constrained, especially for businesses that are most likely to give rise to large third-party claims. Making such insurance mandatory and automatically waiving limited liability in cases where such insurance does not cover claims would rectify this deficiency, but it would substantially increase the costs and faced by new companies in many sectors.