We are pleased to announce that Daniel Hoadley (former ICLR law reporter and co-designer of ICLR Online) will be delivering a talk on open access to case law at the Law Via The Internet annual conference at Rutgers Law School in Newark, New Jersey (19-21 October 2017).
Not one to pull his punches, Daniel’s talk will discuss the obstacles faced by the UK open law community, with a particular focus on England and Wales’ haphazard approach to judgment transcription, uncertainty around copyright over judgments and barriers to technological innovation and sustainability.
The concept of “no fault divorce” has gained traction in recent years, but the recent case of Owens v Owens and the image it conjures up of a wife trapped in a loveless marriage has concentrated people’s minds on the issue. As the case heads towards a further appeal hearing in the Supreme Court, David Burrows comments on the prospects for reforming a law to meet its legislators’ true intentions nearly half a century ago.
What right does “cannot reasonably be expected to live with” protect?
Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of the Court of Appeal (Owens v Owens  EWCA Civ 182;  4 WLR 74) to find that, though her marriage had unquestionably broken down, she had failed to prove that her husband had behaved in a way which showed that she could not – in law – reasonably be expected to live with him.
Matrimonial Causes Act 1973 (MCA 1973) s 1 (originally Divorce Reform Act 1969 ss 1 and 2) provides one ground for divorce: either party to a marriage (A) can petition for divorce “on the ground that the marriage has broken down irretrievably”. A court can only find irretrievable breakdown if one of five “facts” are proved including, under s 1(2)(b): “that the [other party (B)] has behaved in such a way that [A] cannot reasonably be expected to live with [B]”.
Section 1 does not say “unreasonable behaviour” as many people – lay and lawyer alike – describe s 1(2)(b) in short-hand. That implies an objective test. Section 1(2)(b) says that someone has “behaved” in such a way that the other cannot “reasonably be expected” to live with them. It is a subjective test, which applies in the case of each individual marriage. Failure to see the objective-subjective distinction may be at the root of the Court of Appeal decision; and it may be critical to its construction and to what Parliament intended when the 1969 Act was passed (as Padfield (below) requires).
Mrs Owens in the Court of Appeal
The Court of Appeal decision can be characterised by Hallett LJ who said, at : “On any view, the marriage is over”. But she, with Macur LJ, agreed with Sir James Munby P that Mrs Owens’s appeal should be dismissed. Her marriage remained undissolved. In the course of a 98-paragraph judgment Sir James said:
 … unless [Mrs Owens] can bring herself within the ‘no fault’ provisions of s 1(2)(d) and (e) [living apart for two years (with consent) or five years] she must remain trapped in her loveless marriage…. Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”
This article looks at MCA 1973 s 1 and Owens
From the point of view of the question: what was the political intent behind the divorce provisions of Divorce Reform Act 1969 s 1 and 2; and
Some thoughts on reform if s 1 truly requires proof of ‘fault’ for an immediate divorce.
Dissolution of marriage: what did parliament intend?
When this law was passed (originally in Divorce Reform Act 1969), can it have been Parliament’s intention that a dead marriage should be preserved? I doubt it. The court is entitled to look not just at the words of a statute but at Parliamentary intent (Padfield v Minister of Agriculture, Fisheries and Food  AC 997,  1 All ER 694).”
The comment on Padfield needs to be drawn out a little (with help from ICLR’s ‘Subsequent Consideration’ section) and to see how the case has developed since 1968. Padfield concerns ministerial discretion whilst MCA 1973 raises the separate question of law as applied to facts. However, by use of “reasonably expected” of a couple, Parliament has introduced a subjective element, not only for the couple in question, but also to how an individual judge sees behaviour. This brings the judicial exercise close to a discretion. If this is so, Padfield policy questions may arise.
Recent comments on Padfield have included R (GC) v Commissioner of Police of the Metropolis (Liberty and another intervening)  UKSC 21;  1 WLR 1230 where Lord Kerr summarised the importance of Padfield – the ‘seminal authority’ – as:
 … That a discretion conferred with the intention that it should be used to promote the policy and objects of the Act can only be validly exercised in a manner that will advance that policy and those objects. More pertinently, the discretion may not be exercised in a way that would frustrate the legislation’s objectives. Everything therefore depends on what one decides is the true intention or purpose of the legislation.”
And last year, Longmore LJ in the Court of Appeal of appeal in R (Rights of Women) v Lord Chancellor  EWCA Civ 91;  1 WLR 2543 (unlawful legal aid provisions for victims of domestic abuse) said of the Lord Chancellor’s confusion of Wednesbury reasonableness and Padfield:
 … [These two jurisdictions] are separate concepts. Any discretion conferred on a Minister ‘should be used to promote the policy and objects of the statute’, R (Electoral Commission) v Westminster Magistrates’ Court  UKSC 40;  1 AC 496, para 15, per Lord Phillips…. Any inquiry as to frustration of purpose must consider whether there is a rational connection between the challenge requirement and the legislation’s purpose.”
Can this duty on ministers be related to judges in their consideration of MCA 1973 and of the question of whether someone can “reasonably be expected” to live with another person? If so, what is the “purpose” of the 1973 Act provision?
Padfield and Parliamentary intent: “policy and objects of the Act”
In Padfield Lord Denning MR (in a minority the Court of Appeal, but upheld 4:1 in the House of Lords) had explained the scheme under review by the courts as follows (at 1003):
We are here concerned with the marketing of milk. It is regulated by the Milk Marketing Scheme and administered by the Milk Marketing Board. The dairy farmers of England and Wales sell their milk to the Milk Marketing Board. The lorries of the board pick up the churns of milk at the farm gate and carry it to depots. The price is fixed by the board for milk delivered at the farm gate. In order to fix the price, England and Wales are divided into eleven regions. The price varies from region to region.”
The producers of the South-Eastern Region producers contended that the differential between it and the Far-Western Region should be altered in a way which would incidentally have affected other regions. Since the constitution of the board, which consisted largely of members elected by the individual regions, made it impossible for the South-Eastern producers to obtain a majority for their proposals, they asked the Minister of Agriculture, Fisheries and Food to appoint a committee of investigation and when he refused they applied for an order (‘mandamus’) to require the minister to do so.
At 1030 Lord Reid said that Parliament must have intended the minister rationally to consider the request; and if it was to be refused to explain why. In so doing, the minister must consider the aims of the legislation in question:
Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”
The House held that the minister had failed to consider the policy of the statutory provisions. That request must be referred back to him for further consideration.
Owens and the policy of Divorce Reform Act 1969
What can this have to do with Mrs Owens? Perhaps, that where a judge is considering how “reasonably” to interpret facts and to do so in the light of a statutory provision, a question for the Supreme Court may be to say that the judge should do so with the policy – not just the words – of the statute in mind. Not only words, but also intent, comes into the judgment.
I have not gone back, at this stage, to the various literature around at the time of Divorce Reform Act 1969; but it is clear from the 1969 Act that Parliament intended to modernise the law. As Sir James Munby P said in Owens, they produced an “always speaking” (his term) statute:
 I do not need and I do not propose to add to the jurisprudence. What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? […]
 … the law permits, indeed requires us, to look at matters from the perspective of 2017. Section 1 of the 1973 Act is an ‘always speaking’ statute: see R v Ireland  AC 147, 158. Although one cannot construe a statute as meaning something ‘conceptually different’ from what Parliament must have intended (see Birmingham City Council v Oakley  1 AC 617, 631, per Lord Hoffmann), where, as here, the statute is ‘always speaking’ it is to be construed taking into account changes in our understanding of the natural world, technological changes, changes in social standards and, of particular importance here, changes in social attitudes.”
Sir James concludes this passage (at ) by asserting that s 1(2)(b) must be looked at from the point of view of “Boris bus” person: “not the man or woman on the Routemaster … when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.”
Looked at from 2017: what did Parliament intend?
So, what would the 2017 traveller say? What might he or she think Parliament intended in 1969; and what does that mean now? I suspect they would agree with Hallett LJ (quoted by Sir James):
 … This being the law, I respectfully agree with the point made by my Lady, Hallett LJ, during the course of argument before us, that if the marriage is unhappy a particular piece of ‘conduct’ may have more impact and be less ‘reasonable’ than exactly the same conduct if the marriage is happy. As my Lady put it, and I agree, what may be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage.”
In 2017, whatever their mode of travel, surely most people would say that common sense dictates that if A says the marriage is dead then, whatever B may say (a statutory pause for reflection may be a good idea) then it is dead? This is what Parliament intended: s 1(2)(b) was a mopping up provision to enable anyone who said they had had enough – just as they would be entitled to do in a relationship where there was no marriage certificate – to dissolve the marriage. They can then sort out any money (MCA 1973 Pt 2) and to move on. England in 2017 is a secular society. The concept of “grinning and bearing it” passed with the mid-20th century.
This requires only an intelligent reading of s 1; and, if need be, a careful review of what Parliament intended (perhaps by reference to Padfield). If that be correct, let us hope the Supreme Court agrees with the modern traveller: that Parliament intended that, of course, a couple – whether ‘reasonably or not’ – should have their marriage dissolved.
Towards a no fault divorce: consent or one year living apart
If the Supreme Court cannot find that in intent Parliament came as close as it could to a “no fault” divorce in 1969, then what of law reform? Resolution (a group of family lawyers) has, throughout its existence, called for “no fault divorce”; and in granting permission to appeal the Supreme Court had a submission from the group. In the welter of post-Brexit bills it is unlikely that Parliament will look at a niche subject like divorce reform; (and if I were Resolution and offered a legislative slot for family law, divorce would be nowhere near the top of my shopping-list).
So where do we go after Owens? In extreme cases like Owens and if the Supreme Court upholds the Court of Appeal, then the law is unsatisfactory. A true no-fault system in 2017 (nearly 50 years after Divorce Reform Act 1969) must be up for serious review. Two immediate areas arise: the divorce itself; and how to separate relationship breakdown from financial provision?
… a new divorce procedure to remove the apportionment of blame from the legal process. A divorce should be finalised where one or both of the parties to a marriage give notice of their decision, supported by information and with the opportunity to explore other avenues, that their marriage has broken down and one or both of them are still of that view after six months.
A draft amendment to Matrimonial Causes Act 1973 s 1
No draft bill is attached by Resolution. For MPs embroiled in Brexit bills the Resolution proposal may be too complex. Below is a thought for amendment of the present MCA 1973 s 1, which provides for grounds and proof required for a divorce under current legislation. The draft passages underlined replace (ie amend) the present provisions in the 1973 Act. The present ground (irretrievable breakdown) and the ‘facts’ on which it is proved, go. There are two grounds for divorce:
Either parties can jointly consent to a dissolution; or
They can ask for a divorce, without consent of the other, after a year of living apart.
For Mrs Owens, she would have the statutory means, if unable financially to live apart from Mr Owens, to seek financial provision to enable her to provide accommodation to live apart; and she would be able to apply to the court for financial provision pending any divorce (see clause 1(5)). (Currently parties have to wait till after divorce to sort out money.)
Some remaining provisions of Matrimonial Causes Act 1973 Pts 1 and 2 will need slight amendment; and procedural rules would need review. The main grounds for divorce – consent or one year apart – are set out in clause 1.
Draft clause 1: DIVORCE REFORM BILL
1 Divorce on breakdown of marriage
(1) An application for a divorce order may be presented [to the court] by one or both parties to the marriage on the ground that the marriage has broken down irretrievably.
(2) [The court] dealing with an application for divorce shall not hold the marriage to have broken down irretrievably unless one or both parties satisfies [the court] either
(a) that the parties both consent to their marriage being dissolved; or
(b) that the parties have lived apart from one another for a period or periods of one year prior to the presentation of the application
(3) On an application for divorce it shall be the duty [of the court] to consider fully, so far as it reasonably can, the facts alleged by the applicant for a dissolution under paragraph (2)(b) above.
(4) A divorce order shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six weeks from its grant.
(5) In accordance with Part 2 of this Act (financial provision on divorce), the court shall have power to award to a party to the marriage financial provision pending the ending of the one year period referred to at paragraph (2)(b) and of any final financial provision order later made under this Act.
ICLR is pleased to announce that the winner of the ICLR Busfield Prize 2017 is Ms Sophie Clayton.
The prize of £750 is awarded to the BPTC student at City Law School who displays the best performance in the skill of Opinion Writing.
Sophie’s winning pieces were as follows:
– Opinion Writing exam: a negligence claim from the perspective of the defendant, a prison, addressing their potential liability in an accident involving tools at the prison workshop (90%)
– Fraud option: an advice written for the CPS determining which charge would be most suitable to bring against a suspected fraudster who had taken out multiple identical business loans evidenced by falsified till rolls before absconding to Russia (94%)
– Family option: an opinion written for the respondent mother in a private law children dispute regarding her prospects of successfully resisting the father’s claim for contact on the basis of abuse and capacity allegations (99%)
Sophie (pictured) is an English graduate from Regent’s Park College, Oxford who converted to Law at City last year after working in Business Development for a while. She is due to start pupillage at QEB (family) chambers next month.
The Busfield Prize was established with funds left on her death by the late Miss K Busfield, barrister of Lincoln’s Inn and a long-serving ICLR law reporter appointed to the Chancery Division. During her working career Miss Busfield was known for mentoring students and providing support to those just beginning in the law profession. You can read more about the prize here.
We congratulate Sophie on her excellent win and wish her the very best in her legal career.
Continuing his series discussing the impact on family law and practice of legal developments in other areas, David Burrows considers the effect of legal professional privilege in the context of advice given by lawyers to those engaged in family law disputes and the circumstances in which the right to confidentiality of such advice may be lifted.
Legal professional privilege and family law
Advice privilege and family proceedings
Legal professional privilege is a right (not a “privilege”, as Lord Nicholls explains in the passage below) which has long been known to the common law; at least since the early 19th century. Different aspects of the privilege have recently been in the family law headlines. The first is an example of where the rules in relation to confidentiality – in that case to privilege – seem to have been overlooked by a lower court; and the second an example of where the form of the work undertaken by the lawyer did not qualify as “legal” at all. One example comes from children proceedings, the second from a very big money case.
Legal professional privilege has its roots in confidentiality. It is a single privilege with two branches: advice privilege and litigation privilege (ie which enables to a lawyer to accumulate information in relation to anticipated litigation in a way which is confidential to the clients and which need not be disclosed in any later litigation). This article is concerned with advice privilege. This enables a client to speak frankly to his or her lawyer about legal matters (Anderson v Bank of British Columbia (1876) 2 Ch D 644). Subject to narrow exceptions, the client is entitled to assume that information cannot be passed on by the lawyer, without the client’s consent, to a third party; nor can it be disclosed in court (see eg R v Derby Magistrates’ Court exp B  UKHL 18;  AC 487;  1 FLR 513). The advice can be in any “relevant legal context” (Balabel v Air India  Ch 317, CA). That is to say, it need not relate only to litigation, provided that the context and the advice is about legal affairs.
Confidentiality and the mature child
That a child of sufficient age and understanding is as entitled to rights of advice privilege as any other individual – if there were any doubt – is shown by In re E (A Child)  EWCA Civ 473;  4 WLR 105;  1 FLR 1675. In that case the Court of Appeal was critical of the way the judge dealt with a child’s confidential evidence in care proceedings; and a solicitor was criticised for failing properly to respect the advice privilege of A, the solicitor’s 14-year-old client. A’s solicitor (SE) was criticised for failing properly to respect A’s right to advice privilege. On privilege in the Court of Appeal McFarlane LJ started from the premise that:
 … A, as a party to the proceedings, who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly.”
McFarlane LJ went on to cite Lord Taylor in R v Derby Magistrates’ Court, ex p B (above) on the extent to which legal professional privilege applies. In the Derby case  AC 487, 507 Lord Taylor had said:
The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
In Re E, Advice privilege arose from a visit by SE and A’s children’s guardian to see A. The main object of that meeting was to enable SE to go through with A the evidence against him. McFarlane LJ explained why the right to privilege was engaged, and then expressed concern that there had been no discussion between the solicitor and his client of privilege or that the lawyer was being asked to waive it by the court. Further, he was critical of her for not taking account of the extent to which privilege had been breached and how this affected A’s right to a fair trial under Art 6 of the European Convention on Human Rights. He was critical of the order made by the judge for the guardian to file evidence about the meeting with A:
 … The judge [made] an order requiring a party’s representative to file a statement setting out what transpired at a meeting expressly established to elicit that party’s instructions to his lawyers on serious allegations of abuse. That is a significant and highly unusual order to make and, irrespective of the position of the parties, the judge ought to have questioned the basis of the proposed order and been aware of the need to protect A’s Art 6 rights and his entitlement to legal professional privilege.”
It is perhaps worth recording, in conclusion, that many aspects of modern child law and in relation to the mature child (“of age and understanding”) derive from Gillick v West Norfolk and Wisbech AHA  UKHL 7;  1 AC 112,  1 FLR 224; that that case turned on the issue of confidentiality for contraceptive advice between an imaginary child (no-one suggested that Mrs Gillick’s under-16 age daughters were seeking contraceptive advice) and her imaginary doctor; and that advice privilege for the mature child has its roots in similar principles to those considered in Gillick.
Lawyer as person of business: ‘relevant legal context’
There was much publicity last May for the judgment of Haddon-Cave J (handed down in December 2016) in AAZ v BBZ  EWHC 3234 (Fam). In the absence of BBZ (H), he was ordered to provide to AAZ (W) his former wife assets worth just over £453M (yes, really: £453,576,152 per  of the judgment). This sum was to include a modern art collection (estimated value £90,581,865).
In a slightly later, and less publicised (but now reported) judgment (20 December 2016), which emerged at the same time (May 2017) as the first, Haddon-Cave J considered the dealings of the then solicitor for H (SZ) with insurance of the art collection (AAZ v BBZ (No 2)  EWHC 3349 (Fam); reported as Z v Z (Legal Professional Privilege: Fraud Exception)  4 WLR 84). The question for the court was: was information on SZ’s files covered by advice privilege?
Haddon-Cave J held that the arranging of insurance, and therefore information concerning it, was not covered by privilege: it was not a ‘relevant legal context’. (Presumably the information with SE was valuable for enforcement of W’s judgment.) SZ was acting for H, said Haddon-Cave J, as a “person of business” (Minter v Priest  AC 558, HL). There was no legal context in a lawyer arranging insurance for a client, any more than there would be for any agent who fixed up insurance. SZ was therefore required to give evidence about the insurance of the art collection.
In addition, the judge held that in any event such was H’s fraud in the case that he was entitled to “lift” legal professional privilege. With the greatest respect to Haddon-Cave J, this was an odd way to put it. If there was no advice in a “relevant legal context” legal advice privilege could not apply. That was an end of the matter.
If, on the other hand, the iniquity exemption applied (per Stephen J in R v Cox and Railton (1884) 14 QBD 153, where the solicitor was deceived by the “iniquity” of his client: for another view on the iniquity exemption, see this earlier post, Panama papers: take legal professional privilege and a little iniquity… ) no question of privilege could arise in the first place; but at least the client must have sought legal advice. Haddon-Cave J had held that there was no legal advice. Privilege could not therefore be “lifted”. To refer to the iniquity exemption in the context of Mr BZZ was surely merely to pile Pelion needlessly upon Ossa?
This is our last round up of recent legal news and commentary for this Trinity law term, with updates on access to justice, Brexit, corporate manslaughter and presidential tweetering on the brink of chaos. The next Weekly Notes won’t be until the beginning of the Hilary Term in October, but we’ll continue posting case notes, reviews and occasional points of law over the vacation.
Access to justice
Employment tribunal fees order unlawful
Part of the costly and controversial legacy of Chris Grayling’s time in office as Lord Chancellor and Secretary of State for Justice was the decision to hike up court and tribunal fees — essentially the price of access to justice. Combined with cuts to legal aid, for whose implementation and defence Grayling was also responsible, they made it much harder for even moderately well-off people to rely on the courts to uphold and enforce their rights and resolve their legal disputes.
Last week the UK Supreme Court by its judgment in R (UNISON) v Lord Chancellor  UKSC 51 took the wrecking ball to a large chunk of Grayling’s paywall. In a judgment written by Lord Reed, with whom the other justices concurred, supplemented by another by Lady Hale, the court ruled that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), which imposed fees totalling £1200 to enable claims involving issues such as unfair dismissal, equal pay or discrimination to be heard by an employment tribunal, was unlawful under both domestic and EU law because it had the effect of preventing access to justice. You can read the court’s own summary here. (A link to ICLR’s case summary will be added shortly.)
Lord Reed said, at para 66:
The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.
That seems a pretty good description of MOJ thinking under Grayling’s leadership. Lord Reed explains further, at para 68, in a paragraph that will surely be quoted in constitutional law textbooks for decades to come:
At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
There’s also a pointed reference to the role of parties’ names in reported case law, at para 70, refuting the idea that litigation is of benefit only to the litigants and serves no wider purpose in a common law jurisdiction based on precedent:
The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.
The court’s decision was welcomed, somewhat caustically, by another former Lord Chancellor:
L Chancellor swears oath of office to respect rule of law. Supreme Court find Grayling broke his oath in serious respect. Apology at least?
Unison’s legal team deserve all the praise they have been getting, including notably Unison’s Head of Legal @Adam_Creme, for continuing to battle on a point of principle, despite defeats in the Divisional Court and Court of Appeal.
The decision means the government will have to refund something like £27m in fees already paid, as well as compensation to others who, by reason of the fees, may have lost an opportunity to pursue claims. However some newspapers, taking their cue from some business leaders, reacted negatively, suggesting that the decision was a bad one for business and would encourage unmeritorious claims (a point specifically addressed in the judgment).
Litigation Futures reported that the civil courts recorded a surplus of more than £100m in 2016–17, according to the annual report of HM Courts and Tribunals Service (HMCTS). Much of that comes from the new high court fees. Tribunals, on the other hand, made a loss. Their loss will be all the greater now. The report notes, however, that
“A fees strategy review is underway to seek to balance the interests of all court and tribunal users and the taxpayer in the wider context of funding for the system overall.” (p 74)
A second round of Brexit negotiations ended inconclusively, with the UK team seemingly ill-prepared and the EU team disappointed and frustrated. A widely circulated photograph appeared to show the EU team on one side of the table, each of them with a pile of well-thumbed preparatory paperwork, while the UK team opposite, led by Brexit secretary David Davis, appeared breezily paperless and looking smugly overconfident. By way of explanation, it was said they had not thought to produce a bunch of paperwork just for a photo-op. But if you mean to make a good impression and look businesslike, wouldn’t that be a wise move? They looked instead as though they’d been caught napping by rather better prepared opponents in an event in which appearances might be just as important as substance.
As to substance, The Times Brexit Briefing reported last week that
There was a distinct air of frustration in the closing press conference from the EU’s chief negotiator, Michel Barnier about the lack of clarity in the British position. “We require clarification on the financial settlement, on citizens’ rights, on Ireland,” he said.
The lack of a British position paper was particularly frustrating, said Barnier, and it was necessary for one to be produced rapidly. But that would be difficult, said The Times, when the UK “cabinet is divided on what we should offer and there is no common government position”.
Chickening out of a chlorinated trade deal
America currently exports relatively little meat and dairy products to Britain, mainly because of restrictions imposed by EU rules on the use of growth hormones in cows and the practice of washing chicken carcasses in chlorinated water. Now it seems UK trade secretary Liam Fox has complained about the UK media becoming “obsessed” by chlorinated chicken amidst the prospect of a post-Brexit trade deal with the US in which the UK might be forced (by powerful US agri-business lobbying) to accept less stringent restrictions on meat products than hitherto. According to the Financial Times,
Concerns over the safety of the chlorine washes used by US chicken producers to kill bacteria including salmonella has long been a sticking point in transatlantic trade discussions.
Liam Fox was challenged by Campaign Open Britain, a pro-EU group, last week to put his mouth where his money seems to be, by eating a US-style chlorinated chicken in public, in a stunt which (if performed) would be reminiscent of a former Conservative minister, John Gummer, asking his daughter to consume on camera a beefburger made with British meat in the early days of the BSE contamination scare in 1990. What became of Cordelia Gummer, the Mad Cow girl?, asked the Daily Express on the 25th anniversary of this dubious event, reminding readers that:
Six years later a link between BSE and a human form of the disease was officially confirmed in the Commons. By then an EU ban on British beef, which was not fully lifted for a decade, was already in force and the industry was brought to the brink of ruin.
The girl does not seem to have been adversely affected by the ordeal, according to the paper, although
Officially 177 Britons and more than 50 others worldwide have died from Variant Creutzfeldt-Jakob disease (vCJD) — the human form of BSE.
Cordelia’s brother Ben, who did not (so far as history relates) eat the hamburger (or indeed drink the Kool Aid), has nevertheless inherited his father’s interest in conservative politics, became an MP, and served as Minister for the Cabinet Office and Paymaster General from July 2016 until June 2017.
Tory story — collapse of stout party
As for the Conservative Party, one of its own members (Matthew Parris), in his weekly column in The Times, Saturday 29 July, described it (with sadness and shame) as follows:
The Tories are turning Brexit into a humiliating shambles. They called a referendum when they didn’t have to, they accepted the result, they willed Brexit, they promised Brexit, and now they’re comprehensively failing to organise it.
Leavers (on Twitter) often criticise Remainers for talking down the country and willing it to fail just to spite the Leavers. The problem is, for Remainers, it would be a lot easier to accept the referendum result and the inevitable consequences if the process were being managed with some degree of apparent competence. At the moment, it sometimes seems as though we are witnessing constitutional surgery being performed by chainsaw-wielding superclowns.
The Metropolitan Police have indicated, in a letter sent to survivors and the families of those who died in the Grenfell Tower fire, that corporate manslaughter charges are likely to be brought against the Royal Borough of Kensington and Chelsea (RBKC) and the Kensington and Chelsea Tenant Management Organisation (KCTMO). According to the letter, quoted in The Guardian, the Met says
there are reasonable grounds to suspect that each organisation may have committed the offence of corporate manslaughter…
This is not unexpected (as we reported earlier: Weekly Notes — 19 June 2017. See also Lawyer 2B, The Grenfell Tower fire: the legal ramifications). Nor does it rule out charges being brought against other organisations or companies, including the various construction companies involved in the tower’s recent refurbishment and the fitting of what has proved to be highly combustible cladding.
But David Lammy MP, who called for a full criminal investigation shortly after the disaster, suggesting the likelihood of corporate manslaughter having occurred, is now saying this may not be enough. He points out that under the Corporate Manslaughter and Corporate Homicide Act 2007, on which the police seek to rely, convicted organisations can be heavily fined, as well as publicly shamed, but no one goes to jail:
“A fine would not represent justice for the Grenfell victims and their families. Gross negligence involuntary manslaughter carries a punishment of prison time and I hope that the police and the CPS are considering involuntary manslaughter caused by gross negligence.”
However, gross negligence manslaughter is a common law offence which is harder to prove, and the likelihood of particular individuals being identified as responsible for breach of a duty of care is therefore slender.
Fire safety tests failed
More rigorous tests carried out on a similar combination of insulation and cladding as the Grenfell tower have been failed in the case of 82 other buildings, more than half of which were owned by local authorities. The government announced (not before time, one would have thought) an independent review of building regulations. Meanwhile, steps are being taken to render buildings safe, in many cases by replacing the cladding altogether. However, the report whose findings were disclosed by the government last week cannot be published nor can the location or identity of all the owners of the buildings be revealed because of commercial confidentiality and intellectual property rights, it has been asserted. This seems bonkers, given the risks faced by residents, and has once again been the subject of vociferous criticism by David Lammy MP. The inquiry into building regulations will be led by Dame Judith Hackitt, who chaired the Health and Safety Executive and chairs the EEF manufacturers’ organisation.
Fake compensation allegation
A man who claimed that his family had died in the fire and claimed up to £10,000 from the victim relief fund pleaded not guilty to charges of fraud at Southwark Crown Court and was remanded in custody, according to the Guardian. The defendant, Anh Nhu Nguyen, 52, of Beckenham, south-east London, is not believed to be married or have children. The prosecution allege that he told agencies dealing with victims in the aftermath of the fire that he had lost his wife, his child and all of his worldly possessions in the blaze, and was given cash, accommodation, food and clothes. He then applied for the lump sum of £5000 that victims were being offered. But it was when he was interviewed by police officers, on the assumption that he was a victim, that his story unravelled.
Internet Newsletter for Lawyers
The July/August 2917 issue is now out, available to subscribers by post and online here. Includes articles about robotic lawyers and clerks and electronic evidence from the internet. Essential bimonthly reading for all switched on lawyers and providers of legal services.
The August issue of the monthly journal for members of the Bar of England and Wales has just been delivered, by post, and is available online (much of it free to air), including Andrew Langdon QC’s chairman’s column, a piece by Jolyon Maugham QC entitled Law & Society about lawyers using pro bono to help build a better society, and a piece by Lucy Reed, Letting Facts Get In the Way, about the work of the Transparency Project (particularly topical in the wake of the misguided and misinformed hoo-hah over the Charlie Gard case).
Law (and injustice) from around the world
Hocus Potus !— or Hire’m Fire’m
Twitter has its uses, but as a channel of government administration it may not be ideal. It’s a bit like shouting out of the window above a crowded street rather than giving instructions in a memo addressed and copied only to the relevant persons inside an organisation. That has not prevented POTUS, the President of the United States, Donald Trump, from using Twitter to manage his team, as well as to conducting diplomatic relations with foreign powers and attending to other matters of state via his timeline, and thus conducting his administration in what is certainly a commendably transparent manner.
I am pleased to inform you that I have just named General/Secretary John F Kelly as White House Chief of Staff. He is a Great American….
Since the current White House Chief of Staff at the time was someone called Reince Priebus, he had by necessary implication been sacked. The First Tweeter of the United States (FTOTUS) duly confirmed this 11 minutes later.
I would like to thank Reince Priebus for his service and dedication to his country. We accomplished a lot together and I am proud of him!
According to the New York Times (not a fan) “Mr. Priebus’s ouster was the latest convulsion in a White House that has been whipsawed by feuds and political setbacks in recent days.” (Interesting new word: whipsawed.)
All this followed another swift job-grab about a week before, when FTOTUS appointed former hedge funder honcho Anthony Scaramucci (aka The Mooch) as White House communications director, forcing the very loyal but often ludicrously parodied Press Secretary Sean Spicer to resign. (See Atlantic, The Scaramucci Takeover.) Spicer could spin till his head fell off, but he couldn’t stomach reporting to Scaramucci, it seems. Nor did Priebus last long, after a tirade in which, by accident or design, Scaramucci spilt the beans (or his own bile) on the then still chief of staff, whom he accused of being paranoid, as well as Trump’s chief strategist, Steve Bannon, whom he accused of autofellatory ambition, in a telephone call to a New Yorker reporter, Ryan Lizza, on the topic of unauthorised leaks. The phone call was itself a form of leak, and people have wondered if it was sanctioned by the Mooch’s boss, FTOTUS himself, since it seemed to predict very accurately the likely fate of Priebus (whose alleged paranoia was therefore justified); and contained threats to sack lots of other staffers in order to drain the swamp of potential leakers. It’s a rollercoaster read.
The BBC reported (and a large number commented, with varying degrees of prejudice) on the news that a village council in a remote rural part of Pakistan had “sentenced” an innocent girl, aged 16 or 17, to be raped in public by the brother of another girl (12) who had allegedly been raped by the brother of the first girl. The BBC refers to a local newspaper, Dawn, which describes the village council as a panchayat, while the BBC itself calls it a jirga. It suggests the council was made up of members of the two families, who are apparently related. However, it seems the mothers of the two girls reported the matter to the police, who then arrested between 20 and 40 council members. Dawn says the reports were made “at a police station inside the Violence Against Women centre in Multan”, the existence of which indicates the scale of the problem. The BBC comments:
Jirgas, a kind of council formed of local elders, often settle disputes in rural Pakistan. However, they are illegal and have been condemned for a series of controversial rulings — including ordering so-called “honour killings” and past incidents of “revenge rape”.
The idea that two wrongs made a right is a common enough one in criminal justice systems, even in quite advanced civilisations (to misquote the Bible, “vengeance is mine, sayeth the law”), but the idea that the wrongs should be visited on innocent people instead of the actual perpetrators seems especially barbaric. Two points seem worth making.
First, in answer to many of the more prejudicial comments on the BBC’s story, this is not an aspect of Sharia law. It’s a hangover over from ancient tribal customs to which a cracked veneer of religious respectability has been applied. (And if you think “that couldn’t happen here”, try watching or reading The Handmaid’s Tale.)
Second, it is against the secular law in Pakistan, not part of it. However, in its coverage of the story Reuters observes that “In most of the country, jirgas are tolerated but not recognized by the formal courts and police.” This reflects the fact that:
Pakistan has a centuries-old tradition of quick justice handed down by gatherings of local elders, known as jirgas or panchayats, seen by many villagers as preferable to the often-cumbersome and corrupt formal legal system.
In this case, the police have arrested a number of people who may, perhaps, be tried and punished. However, Pakistan’s record of enforcement of the law in such matters is patchy: in an earlier case in which an innocent woman was “revenge raped”, most of the perpetrators were acquitted by the Supreme Court because of a lack of prosecution evidence. The victim, Mukhtar Mai, complained that the police bungled the case. She has since become an outspoken women’s rights activist and runs a school for girls in her village.
ICLR has now launched its beta version of ICLR.3, the online platform that will eventually become your first port of call for all case law research. Existing subscribers to ICLR Online can try it out for free. Anyone else needs to be set up with a special trial account. If you’re interested, click for more information here.
Powers old, new, borrowed and blue are contained in the Lesser (or Not Quite So Great) Repeal Bill announced this week as our legislative rocket ejector seat for Brexit. This and other news in a roundup that struggles in vain to cope with all the legal stuff going on right now. Sigh.
Or should one say bills? The expression “Brexit Bill” may be thought to refer to two rather different things. One is the bill that the UK will have to pay, if and when it eventually separates from the other 27 contracting states of the European Union. The other is the piece of legislation needed to achieve that separation. Both have been in the news over the last week.
The first kind of bill is the one for whose payment Foreign Secretary Boris Johnson said the remaining EU states could “go whistle”, if they had the impudence to present it. He — or at any rate the government — seems to have changed tune rapidly: the expression for this is volte face. A better one might be volte farce.
Britain has not submitted a position paper on financial issues and Boris Johnson, the foreign secretary, said this week that the EU can “go whistle” if it insists on demanding “extortionate” sums. In reply Michel Barnier, the EU’s chief negotiator, said: “I’m not hearing any whistling, just the clock ticking.”
But since then, says the FT:
In a written statement to parliament touching on a “financial settlement”, the British government recognised “that the UK has obligations to the EU . . . that will survive the UK’s withdrawal — and that these need to be resolved”.
These could amount to some £30bn in a backlog of unpaid commitments, reckons the FT.
As to the legislative bill, it is no longer named the Great Repeal Bill as it was during those heady early days of Brexit when we thought (some of us thought) the British Empire was about to reconstitute itself across the globe. Instead it has the rather more practical and prosaic title of European Union (Withdrawal) Bill 2017–19. (No doubt it will be abbreviated to EUWB, which sounds like a rueful or regretful murmur.) You can read it on the Parliament website. According to the explanatory notes:
2. The Bill ends the supremacy of European Union (EU) law in UK law and converts EU law as it stands at the moment of exit into domestic law. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The Bill also enables domestic law to reflect the content of a withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU.
The conjuring trick which it aims to perform is a bit like the one where someone pulls, in one rapid tug, a fully laden table cloth, leaving all the plates, napkins, cutlery, glassware and flower arrangements in exactly the same place, but resting directly on the solid old oak table of domestic law instead of the gold-starred blue tablecloth of EU law. One-two-three… ta-dah!
(No, you did NOT hear a horrible tinkle-clatter-crashing sound.)
Tribute should be paid to the parliamentary drafters, who have been given a confoundedly tricky brief and appear to have made a very decent go of it. As they must have known, the text will be subject to a blizzard of amendments in the parliamentary debates to come. For example, the Liberal Democrats have already warned that they intend to festoon the bill with amendments “like a Christmas tree”. (And if the DUP don’t, we’ll know it’s because they’ve been bought off as part of their controversial confidence and supply arrangement with the minority government.) Its first scrutiny, though, has come from legal commentators, including the following:
A lot of attention has been drawn to the so-called “Henry VIII powers” in clause 7 of the bill, ie powers enabling ministers to issue secondary legislation having the effect of amending primary legislation without parliamentary scrutiny: but, alarming as this sounds, it’s worth pointing out that these powers are subject to another piece of statutory jargon, namely a “sunset clause”. By clause 7(7) “ No regulations may be made under this section after the end of the period of two years beginning with exit day.”
As David Allen Green points out “the legislative equivalent of a state of emergency is time-bound. But given the immensity of the task ahead, will two years be enough?”
Steve Peers says ” To give effect to the withdrawal agreement, the government could even amend the EU Withdrawal Act itself.”
Perhaps we should look out for a sneaky statutory instrument entitled, for example, The European Union (Withdrawal) Act 2018 (Extension of Time for Exercise of Ministerial Powers) Order 2020 (SI 2020/666). [Pace Prof Peers, we had rather assumed that a Henry VIII power cannot be used to amend the very instrument under which it was conferred, but hey-ho, there’s a first for everything.]
EU case law
Clause 6 of the EUWB deals with case law from the ECJ. No case may be referred to the ECJ after Brexit. Any case decided by the ECJ after Brexit will not bind UK courts, nor are the UK courts bound to consider it, though they may consider and apply it if they wish. (It will be persuasive, in the same way as the jurisprudence of the European Court of Human Rights, except that under section 2 of the the Human Rights Act 1998 the UK courts are bound to take account of that, whereas under the EUWB they are not bound to take account of post-Brexit ECJ jurisprudence.)
Pre-Brexit cases will continue to bind UK courts, though the Supreme Court may decide to depart from them on the same basis as it departs, on rare occasions, from its own previous decisions.
This mirrors the legislative position. Anything already in place on the table of primary law will remain on the table, unless and until the waiter takes it away; but the glittering cloth of the field of blue and gold on which it once rested has been whisked away.
There are other, more complicated, provisions about case law and the various meanings of “retained case law” which will merit further consideration, probably by someone better qualified to provide it than this commentator.
Euratom bomb shell
Amazingly, when Theresa May sent the article 50 notification to Donald Tusk, informing the EU of the UK’s intention to leave, she was so emboldened by the landslide vote by which Parliament had authorised the move, that she explicitly bigged it up to include the European Atomic Energy Community (EAEC), otherwise known as Euratom.
Though it shares some of the same institutions and procedures, the pan-European nuclear regulator is in fact a distinct organisation, which the UK could have chosen not to leave. At any rate, the need to do so appears to be debatable. Mike Galsworthy, on politics.co.uk (Euratom is the perfect test case for revoking Article 50) notes that “A report in May 2017 by the House of Commons business, energy and industrial strategy committee questioned the legal necessity of leaving Euratom.”
Now, it seems, some MPs are getting cold feet about it, with the prospect of needlessly replacing its functions with domestic equivalents, or finding some sort of compromise solution, whereby it buys from or outsources to Euratom certain regulatory functions without actually being a member. (But this might also mean signing up to the jurisdiction of the European Court of Justice, as the final arbiter of any dispute.) There has been talk of a parliamentary vote on the matter, after some MPs raised concerns.
But, as David Allen Green points out in another recent blog (What happens to Article 5 in a U-turn on Euratom?), once a notice such as the article 50 notice has been given, it is difficult to un-give it, or call it back. The article 50 notice would need to be amended, somehow, or revoked and re-sent in an amended form, which all sounds like just the sort of thing we don’t need cluttering up the order papers when there’s a massive constitutional upheaval in progress. That said, as David points out,
“if notification can be revoked or amended in respect of Euratom, it must be implicit that it can be revoked or amended … in respect of its primary purpose of the UK leaving the EU altogether.”
Ultimately, he says, it is not for Parliament, but for the other 27 states in the EU to decide whether to permit, and accept, such a change. But if they did, that might be a good opportunity for the UK government to give the whole matter of Brexit a proper rethink and get its house in order before re-issuing the article 50 notice, if at all.
Meanwhile, and not for the first time, former prime minister Tony Blair has added his voice to the party of reason, suggesting in essence a sort of compromise on freedom of movement that will probably not satisfy anyone. As a comment on where we are and what we might do to fix it, it reeks of the kind of competence and political realism that today’s parliamentary big wigs sorely appear to lack: see Brexit and the Centre
Blair is not alone in suggesting that Brexit deserves a re-think, if not total reversal; and that no amount of “will of the people” waving can justify a nation deliberately embarking on a policy which it knows will cause it both short and long term harm. At any rate, there have been growing calls from business and academia, at least for a second referendum. See, for example, Jonathan Freedland There’s still a real chance for a second Brexit referendum.
Appointment of new Chief
Sir Ian Burnett, who might have been a perfect choice to chair the Grenfell Inquiry, has instead been appointed Lord Chief Justice to replace Lord Thomas of Cwmgiedd, who will retire on 1 October. The reason he might have been a good inquiry chair is that, according to his biography on the Judiciary website, in his practice at the Bar he
focussed on public and administrative law, personal injury and health and safety law, including acting as junior counsel to the King’s Cross Fire inquiry and to the inquiry into the convictions of the Guildford Four and Maguire family. He was leading counsel to the inquiry into the Southall rail crash and into train protection systems following the Paddington train crash. His final case at the bar was as counsel to the inquests into the deaths of Diana, Princess of Wales and Dodi al Fayed. He was involved in many judicial review and public law cases and, in particular, in the years following 9/11 those concerning the government’s response to the risk of terrorist attack.
He became a High Court judge in 2008 and a Lord Justice of Appeal in 2014. And now, as Joshua Rozenberg points out on Facebook, he’ll be the “youngest chief justice for half a century”, ie “since Lord Parker of Waddington was appointed in 1958”. Moreover, “At 59, he will now have the challenge of leading judges who are older and more experienced than he is.”
The review of modern working practices, chaired by Matthew Taylor, last week published its report, Good work: the Taylor review of modern working practices (pdf). As was widely expected, it considered such things as the “gig economy” and “zero-hours contracts” as manifestations of the contemporary world of work, in which job creation appears healthy but job security less so. Presenting the report at the RSA on 11 July, Taylor said:
let me make clear that the Review team thinks flexibility is a good thing, in fact we need more. Let me underline that getting a job is still the best way out of poverty and path to opportunity. And let me reassure firms and organisations that good employers have absolutely nothing to fear from our proposals.
The crux of the zero-hours / gig economy issue was what he called “one way flexibility”. Two-way flexibility was great, but
One sided flexibility is when employers seek to transfer all risk on to the shoulders of workers in ways which make people more insecure and make their lives harder to manage.
Calling for “a more concerted and determined approach to improving the quality of work in our economy” the report puts forward a number of proposals, including:
primary legislation to define the boundary between self-employment and worker status
a new role for the Low Pay Commission exploring how to improve quality and progression in sectors with a high proportion of low paid workers,
a national framework for employability skills so we can develop the kind of transferable capabilities that can be acquired in formal education and also informal and on the job learning.
Specifically, that people who work for “platform-based companies”, such as Deliveroo and Uber, be classed as “dependent contractors”
Consultation on de-linking of money claims
The Family Procedure Rule Committee has launched a consultation on proposed amendments to Part 9 of the Family Procedure Rules 2010: Applications for a Financial Remedy. The aim of the amendments is to de-link financial remedy claims from those for a decree of divorce or dissolution of a civil partnership, so that it will no longer be possible to make an application for a financial order in a divorce petition or dissolution application. This is something on which the President of the Family Division, Sir James Munby, had already expressed an opinion, strongly supporting the de-linking, in his 17th View from the President’s Chambers. (We covered this at the time: see Weekly Notes — 22 May 2017, Dee and Ann to part…)
Additionally, the proposed amendments would also make changes to the types of financial remedy cases to which the procedure in Chapter 5 of Part 9 of the FPR applies, rename that procedure as “fast track” and make some minor changes to the procedure itself.
Two interesting cases last week. First, and most egregious, was the conviction of Viscount St Davids on two charges under section 127 of the Communications Act 2003 for sending menacing messages by means of a public electronic communications network, by posting them on Facebook. One of them, which was found to be racially aggravated, related to a threat made against Gina Miller (who was the lead claimant in the Art 50 case).
The posts themselves are pretty horrible and nasty, and the viscount’s excuse — that they were basically a private joke that he didn’t expect anyone else, let alone the victims, to see — cut little ice with Senior District Judge (Chief Magistrate) Emma Arbuthnot. Her judgment, published on the Judiciary website, sets everything out in detail and explains things very clearly for the benefit of a defendant who represented himself. A second judgment sets out her sentencing remarks.
There is a helpful explainer on the UK Criminal Law Blog, which also discusses the sentence of 12 weeks’ imprisonment.
The second case, though dating from last month, was reported on Legal Futures today and concerns a legal blogger who was sued for libel after writing what was essentially a fair and accurate summary of legal proceedings. What is alarming is that the case even got off the ground, which it probably wouldn’t have done if the claimant had gone to a solicitor, but he acted as a litigant in person.
According to Legal Futures:
Ben Amunwa was sued by a lecturer over a blog he wrote on a successful appeal the lecturer had brought in a disciplinary case. […]
Mr Amunwa [is a barrister who] practises at The 36 Group — which includes 36 Bedford Row chambers — and has a personal website lawmostly.com.
He was sued by Tariq Alsaifi, who had been a lecturer in accountancy and finance at Newcastle College but was dismissed over allegations of inappropriate behaviour towards a 17-year-old student.
The lecturer successfully appealed against the regulator’s prohibition order: Alsaifi v Secretary of State for Education EWHC 1519 (Admin). Mr Amunwa then discussed the case on his blog. Mr Alsaifi then sued him for libel, and Mr Amunwa applied to have it struck out.
The matter came before Warby J as Alsaifi v Amunwa EWHC 1443 (QB) . Giving judgment on 27 June, the judge began by complaining about the excessive documentation submitted to the court, at :
It is unreasonable, and tends to obstruct [the overriding] objective, if the parties deluge the court with so much written material on an application of this kind.”
He concluded at  to  that the words of Mr Amunwa’s article “are clearly capable of defaming Mr Alsaifi” but that “ the court would inevitably conclude” that they “constituted a fair and accurate report of the Appeal Judgment”, and therefore covered by privilege under the Defamation Act 1996. If and to the extent that they didn’t, then they amounted to honest opinion under section 3 of the Defamation Act 2013. Accordingly (and having written a long judgment in spite of his stated aversion to excessive documentation), he granted Mr Amunwa’s application for summary disposal (dismissal) of the claim.
Inner Temple library
We have reported before on the radical plans to restructure Inner Temple library in order to convert more than half of the space to create meeting rooms, offices and an auditorium for education and training: see Weekly Notes — 4 September 2015. A petition was started and got a lot of support, but the powers that be were not persuaded.
Now David Allen Green, writing as Jack of Kent, and a member of Inner Temple, has written the first of a series of posts on “ this act of impending vandalism.” He says, rightly,
The library of the Inner Temple is as good a law library as it is possible for a law library to be. […] It is an extraordinary and wonderful place for any lawyer, from a student to a QC, to work. There is no better place..
Team ICLR is in Austin, Texas for the 110th Annual Meeting & Conference of the American Association of Law Libraries. The theme this year is “Forego the status quo”, which is something we all seem to be having to do anyway these days, in the political sphere. But in the legal sphere, maybe the big changes are yet to come.
In the words of its promoters, this conference is our opportunity as a supplier of legal information, including key cases from the original Common Law jurisdiction, to “meet face-to-face with more than 1,600 industry leaders—the legal problem solvers—as they search for your publications, technologies, products, and services.” They say everything’s big in Texas, and this conference is no exception. On with the show!
The ICLR team in Austin is Daniel Hoadley, Head of Marketing, who tweets as @DanHLawReporter, and Paul Hastings, Account Manager, who tweets as @Hasto1.
First task has been to experience a proper Texas barbecue, as Paul relates via Twitter:
It's 830am in Austin,I'm in a queue for BBQ,please send help!!
If you’re at the conference, make sure you come and find us at our stand, No 822. For convenience, here is a floorplan with the location marked: AALL2017FloorPlan-ICLR
We’ll be offering delegates a sneak preview of ICLR’s great new platform, ICLR.3 which we are launching later this year.
UPDATE: Sunday 16 July.
Daniel gave a demo…
You can see the home page of ICLR.3, with its feed of new content cards, colour coded to reflect the legal topic of the case.
The UK Supreme Court welcomes visitors from all over the world. But, says the blurb on the back of this delightful book by artist and blogger Isobel Williams, one important audience has been overlooked: bears. So they have produced their own guide, which is reviewed here by Paul Magrath.
When newly appointed Lord Chancellors, stepping gingerly into a role unsuited to lay politicians, mouth platitudes about the UK Justice System being “open for business”, they are probably thinking about wooing foreign litigants to the Rolls Building and pocketing the exorbitant court fees, rather than welcoming foreign tourists to our highest appellate court. Little do they know.
Lord Neuberger revealed in a speech not long ago that the UK Supreme Court, of which he is President, not only warranted an entry in Trip Advisor but had scored very highly as a tourist attraction. With its Certificate of Excellence and a 4.5 stars rating, his court also ranked ahead of such established visitor landmarks as the Royal Artillery Museum, The Shard and Harvey Nichols.
Those who rate their visit to the Supreme Court so highly will surely have done so in part because of something else which has proved deservedly popular: the bears who, in Isobel William’s delightful new book, guide the visitor round the court. Thousands of these “very charming creatures”, adopted from the cafe shop, “have left the Court for new loving homes around the UK and beyond”, according to Lord Neuberger in his foreword.
Some people are a bit snooty about the fact that the Supreme Court stocks bears, along with Christmas tree baubles, baseball hats, bone china mugs and other goods. As a tax-payer I’m happy if they can make a few bob and, more importantly, good-quality souvenirs help to spread information and goodwill.
In this book the bears come across as a bit cheeky and mischievous, as they give us a behind-the-scenes tour after the court has closed for the day. They explain, in easy language, what the court does, and what some of the signs and artwork in the building mean.
One of the bears asks a bust of King Edward VII “can I call you Teddy?” Another cheekily modifies the vow sworn by judges to read:
I will well and truly serve and I will do right to all manner of people after the laws and usages of this realm without Bear or favour, affection or ill will.”
I was interested to learn that Sir John Fielding, the famous and innovative 18th century magistrate whose portrait hangs in Court 1, had “controversially” allowed court cases to be reported in the press. He’s an early transparency hero, properly memorialised in our most open and accessible modern court.
My favourite of Isobel’s illustrations is the one of the Statue of Liberty, clutching a teddy bear in one hand, and her flaming beacon in the other, whose caption contains another little curiosity of legal history:
There are Supreme Courts in many other countries, including the USA. ‘The Constitution would not have been noticeably affected if Sherman Minton’s chair had been occupied by a stuffed teddy bear from 1949 to 1953.’—The History of the Supreme Court of the United States, vol 12, William M Wiecek, CUP, 2006|”
The word “teddy bear” comes from Theodore Roosevelt, President of the USA from 1901 to 1909, whose niece Eleanor Roosevelt provides a quotation etched into the glass screen of Court 2:
Justice cannot be for one side alone but must be for both.”
It would be a shame if these entertaining and slightly roguish bears were to be confined to the Supreme Court. I very much hope that a follow-up volume will take them into a No 11 bus and along the Strand to the Royal Courts of Justice, where there is actually a place officially known as the Bear Garden.
It is a sort of waiting area or lobby, where I feel sure the Supreme Court bears will find some cousins, who can help explain the interesting features and art works in the Victorian gothic court complex that houses the High Court and Court of Appeal of England and Wales.
After that, another ride on the No 11 will take them along Fleet Street to Ludgate Hill and Old Bailey, where the Central Criminal Court has heard some of the most notable and notorious trials of the last hundred years. I feel sure the bears will have lots to say about it, too.
The Supreme Court: a guide for bears is available to visitors in the Supreme Court gift shop and from Wildy & Sons at £6.95, and from http://isobelwilliams.org.uk at £8.79 inc. UK p&p (overseas postage by arrangement).
This week’s roundup of legal news and commentary includes digital justice and the online courts hackathon, gripes about the Grenfell inquiry, a new guide for families caught up in the courts, and the G20 summit of world leaders (and a fringe summit of anti-globalisation protesters) in Germany. But first, here’s a photograph to mark the Law Society’s support for #LegalPride this weekend. (Updated 11 July with extra links.)
Back to the future
Plans for court modernisation and the Online Court — which were to have been achieved by the Prisons and Courts Bill that got killed off in the sudden death of the last parliament — are back on the agenda following the Queen’s Speech in which her Majesty announced that “Legislation will also be introduced to modernise the courts system and to help reduce motor insurance premiums.”
End direct cross examination of domestic violence victims by their alleged perpetrators in family courts and extend the use of virtual hearings.
Enable online systems for less serious charges, to plead guilty, accept a conviction and pay a fixed fine. This will go alongside digital services allowing businesses to pursue their cases quicky, to recover debt.
Modernise the courts, providing a better working environment for judges, allowing more leadership positions in the judiciary on a fixed term, and more flexible deployment of judges to improve career progression.
Proposals which had been in the Prisons and Courts Bill relating to costs and motor insurance litigation, also the subject of some controversy, have been absorbed into a different bill, the new Civil Liability Bill, which again is yet to be published but aims to “crack down on fraudulent whiplash claims” and “is expected to reduce motor insurance premiums by about £35 per year” (according to Conservative Home). The Bill will:
ban offers to settle claims without the support of medical evidence and introduce a new fixed tariff of compensation for whiplash injuries with a duration of up to 2 years.
Online Courts Hackathon
Last weekend over 200 dedicated coders and legal geeks got together at the University of Law in London to see what they could come up with in the way of applied technology in support of the courts. The 23-hour Online Courts Hackathon was jointly organised by the Society for Computers and Law (SCL), Legal Geek, the Judiciary of England and Wales, and HM Courts & Tribunals Service (HMCTS).
The organisers of the event identified eight real life challenges that face online courts: form filling, order drafting, continuous online hearing, argument building, outcome prediction, negotiating & settlement, dispute classification and bundles. Teams including members of London’s top law firms and leading UK universities, as well as tech companies and others, competed to provide solutions.
Awards for the best solutions were given out at the end by the Lord Chief Justice, Lord Thomas of Cwmgiedd, who has been a driving force in the promotion of court modernisation, alongside current president of the SCL, Professor Richard Susskind, and two former SCL presidents, Sir Henry Brooke (who wrote about it on his blog) and his predecessor, 93-year-old Sir Brian Neil.
Second prize went to a team from Pinsent Masons, which created MobiMapper, a ‘case visualisation and argument mapper’ which “narrows the issues of a case into a single document that a litigant in person might bring to court”.
There were also awards for the Craziest Idea, which went to the Two of Us, Best Teamwork, won by the Gilbert & Tobin team, and for ‘Coolest Tech’, which was awarded to a team from Cambridge University for their ClaimR, an algorithmic decision tree that predicted case outcomes to 83% accuracy.
Not everyone has been cheering on the resumed development of the Online Court, in the form in which it is currently proposed (which is presumably unchanged by the legislative hiatus resulting from the snap election).
Penelope Gibbs, of Transform Justice, has consistently warned against the risks of online hearings and “virtual justice”, on her blog. In one recent post, she points out that “ Most of virtual justice is an evidence free zone”, citing the woeful lack of properly evaluated and up to date research into the taking of evidence via video link. Another, entitled On screen but disconnected? The reality of virtual justice, recounts her experience of visiting a magistrates court that dealt with all the cases remotely, and her concerns about the effect on vulnerable witnesses and defendants.
I know many in the Ministry of Justice think me a Luddite. I’m definitely concerned about the risks to defendants of new technology. And I would plead for everyone involved in court reform to spend a whole day observing a virtual court incognito, and form their own conclusions as to the effect of video on vulnerable defendants.
Another note of caution has come from Professor Roger Smith, in a recent post on the Law, Technology and Access to Justice blog, discussing the earlier Rechtwijzer project in the Netherlands, which does not seem to have lived up to the hopes with which it was developed. He thinks the UK should wait until another current project, in British Columbia, Canada, has been tried and tested and lessons learned. He observes that
a trail of major government IT failures has even merited its own wikipedia entry, revealing rather too many of them (think Universal Credit, for example) as emanating from the UK. For that reason, there seem very good reasons to delay implementation of online courts until we can see what happens in other countries. In particular, gung-ho domestic advocates of online courts should split support in principle from the timing of implementation — where the sensible advice may be to wait and see what lessons arise from the now global leader — BC’s online Civil Resolution Tribunal. This started taking small claims from 1 June. Personally, I would give it at least a year before I spent a single penny.
“It might be a one-time deal because it’s built with the money from selling off the courts — there’s no money to adjust it once it is up and running… let the British Columbians spend the money.”
But he has also made very positive comments on the recent hackathon:
“The hackathon was won by a group which produced a way of taking up a housing disrepair case, which was really imaginative… It’s the kind of case which might well be swept under the carpet because there isn’t any legal aid for it at the moment… and will be highly material to the Grenfell Tower discussions.”
Which leads us on to…
Criticism of Sir Martin Moore-Bick’s selection as the chair of the Grenfell Tower Inquiry has continued, albeit without any actual substance, other than a vague sense on behalf of those purporting to speak on behalf of the victims that he “isn’t one of us”, lacks “empathy”, or in one case applied the existing housing law as he saw it in a way that appeared to support what others have called “social cleansing” (see Emma Dent Coad MP for North Kensington on the Daily Politics on Sunday, admitting she’s never met Sir Martin, nor presumably read the relevant case report).
Having apparently started off on the wrong foot by appearing, in some reports, to play down the ambit of the inquiry (see Weekly Notes — 3 July 2017) or perhaps suggest more forcefully than he need have done that it might not, after all, be all things to all men, he made amends last week by launching a consultation on the terms of reference (although these are ultimately set by the Minister, not the inquiry chair, under section 5 of the Inquiries Act 2005). He said:
“I am determined to establish the causes of the tragedy, and ensure that the appropriate lessons are learnt. To do this, the Inquiry will need to examine all relevant circumstances leading up to and surrounding the fire at Grenfell Tower, in order to understand its causes and prevent such a tragedy ever happening again.
“To produce a report as quickly as possible, with clear recommendations for action, I will listen to people and consider a broad range of evidence, including on the role of the relevant public authorities and contractors, in order to help me answer the important questions.”
“I therefore want to hear from people directly affected by the fire and others involved, to listen to their views on the shape of the Inquiry’s work and the questions we should be seeking to answer.”
I can’t do more than assure you that I know what it is to be impartial, I’ve been a judge for 20 years, and I give you my word that I will look into this matter to the very best of my ability, and find the facts as I see them from the evidence. That’s my job, that’s my training, and that’s what I intend to do.
Several legal commentators, who know rather more about these things than some of the political and media critics, have defended the appropriateness of selecting a senior retired judge such as Sir Martin Moore-Bick, based on his skills as an impartial, detached and experienced finder of facts in complicated cases, and questioned the motives of his critics, including:
Two clerks or paralegals employed or being trained by solicitors Leigh Day, have been suspended after it was discovered that they had, of their own initiative, and without involving the firm, put up posters near the Grenfell incident zone offering to “kick-start” insurance claims, contact embassies and draft letters for people affected by the blaze. According to The Times, the poster offered “free legal support”.
The Solicitors Regulation Authority and the Office of the Immigration Services Commissioner were said to be examining the poster amid concerns over “ambulance-chasing” or touting for business among survivors. However, it is not so long ago that we were hearing calls for pro bono assistance in the immediate aftermath of the disaster, much as there had been after recent terrorist incidents in Manchester and London, with lawyers coming forward in droves, and others contributing to fundraising appeals. So despite Leigh Day’s damaged reputation in the wake of allegations concerning Iraq war compensation claims, these two clerks may simply have been acting in a naive spirit of charitable enthusiasm.
Meanwhile, the need for legal advice via proper channels remains acute. Last week the Home Office published its policy for dealing with immigration issues affecting victims and survivors to whom the government had promised a 12-month “amnesty” on immigration checks. Immigration lawyer Colin Yeo on Free Movement explained that this meant,
In short, the Government is offering a grant (or extension) of 12 months leave to enter or remain with access public funds included as well as the right to work.
However, good as that might sound, it might not be so simple, or advantageous.
I would strongly advise anyone considering making such an application to take legal advice before doing so. Accepting a 12 month grant of leave may actually cause problems for some individuals by disqualifying them for settlement. At the end of the 12 month period there is no route to remain beyond that unless the individual qualifies under one of the existing immigration rules, which is unlikely for many. Failing that, the person will have to leave the UK or will face removal.
Clad tidings of not much joy
The somewhat panicky testing of the flammability of cladding on publicly owned blocks of flats has continued in the wake of the Grenfell Tower fire, with the vast majority of such buildings failing the test. Here, for example, is the report of such testing in the London Borough of Islington, which happens to be where both the leader of the opposition (whose party have made some rather regrettable political capital out of the tragedy) and the author of this blog.
However, there are concerns that the testing of cladding is not as comprehensive as it should be: the Independent reports that
Testing is currently being limited to panels made of aluminium composite material (ACM) — the type that is believed to have aided the unprecedented spread of the blaze at the 24-storey building last month.
At least 200 samples from high-rise blocks in 54 local authorities have failed testing, according to a Department for Communities and Local Government (DCLG) spokesperson, all of which were ACM.
But fire safety experts warned The Independent the tests could be the tip of the iceberg, with many other types of cladding likely to fail the Government’s own standard for fire safety.
Meanwhile Rydon, the company that actually did the refurbishment of Grenfell Tower using the cladding in question, has “as a mark of respect” removed all information on the project from its website.
This may or may not follow legal advice, good or bad, or mysterious (like the legal advice which caused the former leader of Kensington and Chelsea Royal Borough Council to cancel a public meeting because journalists had obtained an injunction to enable them to attend and report it). At any rate, Rydon must be considered one of the parties not only to the inquiry itself, but to one or more sets of court proceedings (no doubt also involving various other parties, such as subcontractors) in the ensuing months and years.
The Transparency Project has just released a guide on the publication of Family Court judgments, which:
will help parties caught up in the family justice system navigate the complicated issue of publishing judgments about private family matters.
The guide is directed at families and the professionals working with them, to help them think through the possible pros and cons, and the potential practical consequences of publication. Rather than focusing just on issues of anonymisation and jigsaw identification, it aims to involve families in the decision making process about publication, and with the process of anonymising judgments so that privacy protection is robust and effective.
This is just the latest of a series of guidance notes which the charity has published, partly with assistance of the Legal Education Foundation. (ICLR’s Paul Magrath is a member of and contributor to the Transparency Project, which promotes open justice and a better understanding of the family courts and corrects mis-reporting in the media.)
The annual Conference and Annual General Meeting of the Caribbean Association of Law Libraries will take place in Nassau, Bahamas at the Melia Nassau Beach All Inclusive Hotel, from 24 — 27 July 2017.
Law librarians from various Caribbean territories meet to champion the cause of law librarianship and enhance their knowledge base by sharing goals, ideas and resources. ICLR will not be attending person but our agents, Wildy’s, who represent us in these territories, will certainly be there, and can talk to librarians and other delegates about the exciting new development of our ICLR.3 platform.
Law (and injustice) from around the world
Chief Justice replacement
The present chief justice of Canada’s Supreme Court (which we visited in May) announced last month that she would be retiring in December this year. Beverley McLachlin was the first female chief justice of the Supreme Court of Canada, and the first in any equivalent court in the Commonwealth. She grew up in Alberta, and practiced law for some years at firms in Edmonton, Fort St John and Vancouver before becoming a professor of law at the University of British Columbia in 1974. She became a judge in 1980 and after rapid promotion became chief justice of British Columbia in 1988, before joining the Supreme Court of Canada the following year. She was appointed Chief Justice of the Supreme Court in 2000.
No doubt she will be a hard act to follow. The question is, who is to fill her place when she goes? The Montreal bar is calling on tradition to be respected and for the next chief justice of the Supreme Court of Canada to be a Quebecer. According to the National Post:
Bar president Brian Mitchell says the law society sent a letter to Prime Minister Justin Trudeau late last..
“Judge not, lest ye be judged” goes the Biblical saying. But what happens when the judge himself is under suspicion? This is the awful prospect facing a recently appointed High Court judge in Peter Murphy’s absorbing new courtroom thriller, Calling Down the Storm.
In the pages of this novel, notorious historical figures like Lord Lucan rub shoulders with the complex characters of Murphy’s fictional legal world: the clients and lawyers, the police and expert witnesses, and above them all, the judge. There is space, too, to discuss the subtleties of psychology and the ethics of legal privilege, in a story in which the patient workings of justice compete with the gathering storm of a bloody tragedy.
Readers of this blog should by now be familiar with Ben Schroeder, the young Jewish barrister first met in A Higher Duty, who overcomes the racial prejudice of the stuffy club-like Bar of the early 1960s to forge a career for himself as a promising young criminal practitioner. In subsequent instalments, Schroeder has found himself defending a murderer facing the gallows, a Soviet spy, and a Welsh nationalist terrorist.
This fifth volume in the Schroeder series has now reached the turbulent early 1970s, when the optimism of the Swinging Sixties was giving way to cynicism, sleaze and discontentment. It features a hard-fought childcare dispute in the divorce courts, a fatal stabbing in the streets of Holborn, drug dealers, loanshark gangsters, dangerous liaisons, and the high life of a swish Mayfair casino—all woven into a tale that begins with a murder mystery and ends with a courtroom drama.
As well as charting the trials and tribulations of Schroeder’s career, and that of his wife, Jess Farrar — a former solicitor now established as a family law barrister — the novel also updates us on the careers of some of the other practitioners familiar from the earlier volumes in the series. But the cosily deferential and sometimes incestuous and corrupt world of the English Bar in those days does not escape criticism.
This novel also casts a critical eye on the way more senior practitioners were, in those days, selected for promotion to the judiciary. There was none of the transparency, diversity agenda or oft-crashing applications portal with which the current crisis in judicial recruitment is being addressed. Instead, the selection process usually involved no more than a tap on the shoulder, a “quiet word” behind closed doors, and an assurance (“Quite sure, old boy?”) that there were no skeletons in the closet. Here, it’s not just the system of accreditation that turns out to be seriously flawed: it’s also the character of newly appointed Mr Justice Conrad Rainer, whose gambling addiction threatens all he holds dear, and whose closet … but you must read the story. It’s a corker.
Calling Down the Storm, by Peter Murphy (No Exit, £8.99)