Weekly Notes: legal news from ICLR, 11 April 2022

Ed Sheeran (singing in Prague in 2015): photo via Shutterstock

Intellectual Property

Sheeran notes risk of being sued

The popular singer Ed Sheeran has successfully defended himself against an allegation of plagiarism (breach of copyright) made against him. Sheeran was in fact the first claimant, along with his co-writers and their music publishers, in a claim for declarations that, in their song “Shape of You”, they had not infringed copyright in a song called “Oh Why” written and published by the defendants. The claim was issued after the defendants notified the Performing Rights Society Ltd (“PRS”) of their contention that they should be credited as songwriters of “Shape of You”, causing the PRS to suspend all payments to the claimants in respect of that song’s public performance and broadcast. By a counterclaim, the defendants asserted their claim that copyright in “Oh Why” had been infringed by the claimants.

In Sheeran v Chokri [2022] EWHC 827 (Ch), Mr Justice Zacaroli analysed the two relevant sections of the claimants’ and defendants’ works — referred to a as “the OI Phrase” and “the OW Hook” — in some musicological detail:

“[29.] I address the matters relied on by the defendants in support of the allegation that Mr Sheeran copied the OI Phrase from the OW Hook by reference to the following matters: (1) similarities and differences between the two works and their significance; (2) the likelihood of Mr Sheeran having access to Oh Why; (3) the alleged propensity to copy and conceal, including similar fact evidence; (4) criticisms made by the defendants of Mr Sheeran’s evidence and of the three ‘key fingerprints’ of Mr Chokri which the defendants say are found in Mr Sheeran’s work.”

The judgment (described in one blog as “a virtuoso piece of musical analysis”) includes passages of musical notation and considers the matter in the context of other songs alleged to be similar. He concludes that no infringement of copyright has taken place, grants the declarations sought by the claimants and dismisses the defendants’ counterclaim.

The hearing of the case attracted quite a bit of media coverage, including this satirical comment from Private Eye:

It was perhaps less amusing or predictable for Sheeran himself. Despite having scored a victory in the courts, the singer confessed that he now films every songwriting session to reduce the risk of future copyright claims. He told the BBC’s Newsnight:

“Now I just film everything, everything is on film. We’ve had claims come through on the songs and we go, ‘Well here’s the footage and you watch. You’ll see there’s nothing there.’”

See also: The Times, Ed Sheeran now films everything for safety after court case

Media

Protection of journalistic sources

In the current issue of London Review of Books, Chris Mullin writes a Diary piece (“In court, again”) describing his appearance at the Central Criminal Court, Old Bailey on 25 February 2022 responding to an application by the West Midlands Police, under the Terrorism Act 2000, demanding he hand over notes made in the 1980s during his investigation into the Birmingham pub bombings which eventually led to the release of the wrongly convicted Birmingham Six defendants. As a journalist, Mullin declines to expose his sources, suggesting the police ought to have carried out a proper investigation at the time. He is also scathing about the longstanding judicial reluctance to overturn the convictions.

The diary goes on to record the court’s decision on 22 March, in which Mr Justice Lucraft accepted that material still in Mullin’s possession came within the scope of the Act, but declined to rule that any overriding public interest required its disclosure.

See also: Duncan Campbell, The Guardian, Birmingham pub bombings: Chris Mullin wins fight to protect source

Inquiries

Grenfell Tower fire

The former minister, Eric Pickles struck a jarring note when giving evidence at the Grenfell Tower Fire Inquiry last week, apparently suggesting that he was much too busy to be wasting time appearing there as a witness and urging them to minimise the disruption to his schedule by using their (his) time wisely. According to The Times, he told the inquiry barrister:

“Could I respectfully remind you that you did promise we will be away this morning and I have changed my schedule to fit this in. I do have an extremely busy day meeting people, but this is more important than anything. But I would urge you to use your time wisely.”

He later apologised for his apparent impatience, but then referred in passing to “the nameless, I think it’s 96 people who were killed in the Grenfell fire”. In fact it was 72 and they were all named. In short, Pickles appeared not to know his onions.

One of the issues being put to ministers by the inquiry was failure to implement recommendations following a report into the earlier Lakanal House high-rise housing fire, and the extent to which the government was trying to relax building regulations or delay their reform in an effort to cut “red tape”. According to The Guardian,

“An investigation by trade magazine Inside Housing revealed that between 2014 and 2017 the all-party parliamentary group (APPG) wrote to ministers at least 21 times, calling for the recommendations after the Lakanal House fire to be implemented. The proposals included a fitting of sprinklers in tower blocks and a review of building regulations “with particular regard to the spread of fire over the external envelope of a building”. The group was repeatedly rebuffed.”

The Times, Grenfell inquiry: ‘Busy’ Lord Pickles apologises for his impatience

The Guardian, Grenfell Tower inquiry exposes miscommunication, poor governance and misguided policies

Cladding responsibility

The Levelling Up minister, Michael Gove, appeared to have scored a victory over the big housing developers last week in securing an undertaking from them to put their names to the building safety pledge and to help bear the costs of the replacement of dangerous cladding on their high-rise buildings. Having approached 53 of the biggest house building firms he appears to have secured at least £2bn of the £4bn that the government estimates is needed to bring all 11m-18m tall buildings up to safe standards. It is not yet clear where the remainder of the funding will come from.

Developers had proposed carrying out work on buildings they had been involved with since 2000, but the government told them to go back further to 1992. “Realistically, there is no choice but to sign,” said one company boss, Gove having threatened shut any who refused out of the government market. The aggressive approach has angered the developers but his tactics enjoy support from the public who believe in the principle that the “polluter pays”. Still more so the owners and leaseholders trapped in blighted buildings through no fault of their own.

Immigration

Windrush Report

Last week Wendy Williams published a progress update on how well the Home Office is addressing the recommendations in her Windrush Lessons Learned Review and the department’s own Comprehensive Improvement Plan (CIP). The new report sets out her findings on the department’s progress in the 18 months since its publication of the CIP.

Her report follows the structure of the CIP in being split into five parts, under each of which she assesses the department’s progress (or lack of it):

  • righting the wrongs and learning from the past (theme 1)
  • a more compassionate approach (theme 2)
  • robust and inclusive policy making (theme 3)
  • openness to scrutiny (theme 4)
  • an inclusive workforce (theme 5)

She concludes that the department is “potentially poised to make the significant changes it needs to. But it must grasp the opportunity to implement the more fundamental recommendations” towards achieving:

  • a more highly trained, developed and professional workforce
  • a department that is more comfortable engaging with the public and stakeholders on all issues of public policy — not just the uncontentious
  • an organisation that is more confident under the gaze of external scrutiny

“If the department fails to do this”, she says, “it risks looking back on this seminal transformation programme as a missed opportunity”.

In other words, “could try harder”. Or, according to Free Movement, this Windrush progress report shows too many lessons aren’t being learned

Nationality and Borders Bill

In an article in the London Review of Books, Short Cuts: Destroying the Asylum System, Frances Webber, who is vice chair of the Institute of Race Relations, describes how the current Nationality and Borders Bill appears to be aimed at “destroying the system of asylum as we know it”.

“Refugees, of course, are rarely able to get visas: you aren’t classified as a refugee under the 1951 Geneva Convention until you are outside your country and unable or unwilling to return. And once outside it, you will be told you’re not eligible for a visa because you’re in a safe third country. This is the catch-22 that results in the dangerous journeys organised by people smugglers.”

The Bill is currently awaiting consideration by the House of Commons of amendments made by the House of Lords attempting to mitigate some of its more drastic effects.

Legal profession

Barristers begin ‘no returns’ action

A statement from Jo Sidhu QC, Chair of The Criminal Bar Association, announces the commencement of industrial action by criminal barristers in protest against the continued failure of the Ministry of Justice to properly fund the criminal justice system and pay defence barristers decent fees.

“On Monday 11th April 2022, criminal barristers across England & Wales will commence action that will shine a spotlight on the severity of the ongoing crisis in the Criminal Justice System. The decision to take that action follows a ballot of members of the Criminal Bar Association in which 94% voted to withdraw their goodwill by no longer accepting return work. We have made specific and reasonable demands that Government must act without further delay to address the chronic underfunding of the AGFS [Advocates’ Graduated Fee Scheme] and, in particular, to implement an immediate and substantial improvement to fees in order to halt the alarming exodus of criminal barristers from publicly funded work.”

There is a fuller explanation of the action being taken and the reasons for it in the latest post from The Secret Barrister, Why are criminal barristers taking part in an “unnecessary and irresponsible strike”?

By the way, it’s not a strike. It’s more like a work-to-rule, refusing to do other people’s cases in order to keep the system going. Barristers are doing their own cases. They’re just not doing other barristers’ cases.

See also: Monidipa Fouzder, Law Society Gazette: Point of no returns: barristers begin legal aid action

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

COMMERCIAL COURT — Practice — Non-attendance: Chep Equipment Pooling BV v ITS Ltd, 01 Apr 2022 [2022] EWHC 741 (Comm); [2022] WLR(D) 154, QBD

COMPANY — Receiver — Breach of duty: Denaxe Ltd v Cooper, 06 Apr 2022 [2022] EWHC 764 (Ch); [2022] WLR(D) 169, Ch D

COMPETITION — Competition Appeal Tribunal — Collective proceedings order: O’Higgins FX Class Representative Ltd v Barclays Bank plc (Practice Note) (Evans v Barclays Bank plc), 31 Mar 2022 [2022] CAT 16; [2022] WLR(D) 161, CAT

CONFIDENTIAL INFORMATION — Disclosure — Public interest: Attorney General v British Broadcasting Corporation, 07 Apr 2022 [2022] EWHC 826 (QB); [2022] WLR(D) 167, QBD

CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Subsidiary jurisdiction in matters of succession: VA v TP, 07 Apr 2022 (Case C-645/20); EU:C:2022:267; [2022] WLR(D) 164, ECJ

CRIME — Sentence — Confiscation order: R v Lam (Chin), 01 Apr 2022 [2022] EWCA Crim 448; [2022] WLR(D) 163, CA

CROWN COURT — Jurisdiction — Powers of district judge (magistrates’ courts): R v Chalk (R v Chaplin), 31 Mar 2022 [2022] EWCA Crim 433; [2022] WLR(D) 155, CA

DATA PROTECTION — Personal data — Access to: GD v Comr of An Garda Síochána, 05 Apr 2022 (Case C-140/20); EU:C:2022:258; [2022] WLR(D) 162, ECJ

LOCAL GOVERNMENT — Homeless person — Review of local authority decision: Biden v Waverley Borough Council, 01 Apr 2022 [2022] EWCA Civ 442; [2022] WLR(D) 166, CA

PRACTICE — Claim form — Service out of jurisdiction: Chelfat v Hutchinson 3G UK Ltd, 06 Apr 2022 [2022] EWCA Civ 455; [2022] WLR(D) 168, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

NIPC Law: Disclosure — Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2021] EWHC 2825 (Pat), Ch D

UK Supreme Court Blog: Case Comment: Bott & Co Solicitors Ltd v Ryanair DAC [2022] UKSC 8; [2022] 2 WLR 634, SC(E)

UK Human Rights Blog: Gas from Mozambique in difficult times for energy: breach of the Paris Agreement? R (Friends of the Earth) v Secretary of State for International Trade [2022] EWHC 568 (Admin), QBD

Inforrm’s Blog: Memo v Russia, Claims by Executive Bodies breach Article 10: OOO Memo v Russia (Application no. 2840/10); [2022] ECHR 229, ECtHR

RPC Perspectives: Payments to employees were “relevant motoring expenditure” and should be disregarded for the purposes of NICs: Willmott Dixon Holdings Ltd v HMRC [2022] UKFTT 6 (TC), FTT

A Lawyer Writes: Wrong place, right ruling: London Historic Parks And Gardens Trust v Minister of State for Housing [2022] EWHC 829 (Admin), QBD

Free Movement: Afghan judge to get visa decision before having to come out of hiding: R (JZ) v Secretary of State for Foreign, Commonwealth and Development Affairs [2022] EWHC 771 (Admin), QBD (Lieven J)

Transparency Project: Griffiths v Tickle (Part 2): the QC who let the skeleton out of the section 12 closet: Griffiths v Tickle (No 2) [2022] EWCA Civ 465, CA

Law & Religion UK: Recognition of religious groups: Anderlecht Christian Assembly of Jehovah’s Witnesses v Belgium, (Appn no 20165/20), ECtHR

Other recent publications

Lying lawyers — when is a lawyer misleading the court?

Barrister Lucy Reed on her Pink Tape blog discusses the oft-made accusation (eg from litigants) that lawyers, when representing their own client’s disputed case to the court, are “lying”; and related questions of professional ethics.

Do we even need an Online Safety Bill?

Prof Paul Bernal on his blog questions whether, with all its problems, we really need such a huge and all-encompassing bill. “Smaller, piecemeal legislation dealing with particular harms is a far more logical — and effective — way of dealing with the problems we have on the net than grand gestures like the Online Safety Bill, which will almost certainly do far more harm than good.”

The Online Safety Bill: Riddled with dangerous loopholes

Nathan Sparkes on Inforrm’s Blog (reposting something that originally appeared on the Hacked Off website) adds his voice to critics of the Bill (see above) — in this instance focusing on the ways in which the mainstream press is exempted from the new and more stringent regulatory proposals for publication on the internet. “The Government has bent and twisted this regulatory regime so far around the interests of the press that it has broken,” he says. “By going so far out of their way to accommodate the press, they have caused the whole proposed system to become unworkable.”

The Reed Court by Numbers: How Shallow is the ‘Shallow End’?

Response by Lewis Graham, of Wadham College, Oxford, on the UK Constitutional Law Blog, to Conor Gearty’s piece in the London Review of Books (In the Shallow End: see Weekly Notes, 24 January 2022) assessing the impact of Lord Reed as President of the Supreme Court. Graham offers an “empirical overview” of the court’s output under its new president to see if it really has become, as Gearty and others suggest, less activist and more conservative.

Channel 4: why selling the broadcaster is a risky move for the UK government

Prof Steven Barnett via Inforrm’s Blog questions the wisdom and motives of the recent proposal by the Culture Secretary Nadine Dorries MP to sell the publicly owned (but independently financed) broadcaster. Given the various restrictions on its operations and the opposition to what has been described as “cultural vandalism” even from Conservative backbenchers, “there is a distinct possibility that the government has picked a fight it may not win”.

Courts

Term dates 2022: a reminder

Hilary: ends Wednesday 13 April 2022
Easter: Tuesday 26 April to Friday 27 May 2022
Trinity: Tuesday 7 June to Friday 29 July 2022
Michaelmas: Monday 3 October to Wednesday 21 December 2022

Courts and tribunals opening times over Easter 2022

Crown Courts, magistrates’ courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and tribunals will close over the Easter weekend, from Friday 15 April to Monday 18 April 2022, and will reopen on Tuesday 19 April 2022.

Some magistrates’ courts will be open on Saturday 16 and Monday 18 April 2022 for remand hearings lists only — these are listed here. (Information via
HM Courts & Tribunals Service).

And finally…

Tweet of the week

We end as we began this week, with music. Pink Floyd have recorded a single with Ukrainian singer Andriy Khlyvnyuk of the band Boombox, with proceeds going to humanitarian relief.

See BBC, Pink Floyd reunite for Ukraine protest song

That’s it for this term! Thanks for reading, and thanks for all your tweets and links. Enjoy the Easter break and see you all next term.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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The ICLR

The ICLR

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.