Weekly Notes: legal news from ICLR, 17 May 2021

Levelling up: photo from State Opening in House of Lords by Roger Harris (via UK Parliament on Flickr)

Politics

Levelling up

The government set out its to-do list for new legislation, as is customary, by way of a speech given by Her Majesty the Queen in the House of Lords at last week’s state opening of Parliament. The speech began in general terms promising to “deliver a national recovery from the pandemic” and to “level up opportunities across all parts of the United Kingdom, supporting jobs, businesses and economic growth and addressing the impact of the pandemic on public services”. Among the specific legislative undertakings were that

Where draft legislation has been published, or proposals or a consultation published, a link has been added above. Some legislation has been gestating for a while (eg the Armed Forces Bill, or the Building Safety Bill) while other Bills are relatively new ideas, in some cases offering a solution to problems that don’t really exist (such as the Higher Education (Freedom of Speech) Bill or the Judicial Review Bill), or dealing with an aspect of something that isn’t a problem while ignoring other things that are (eg the Electoral Integrity Bill, focusing on voter ID to address the almost minimal risk of voter fraud).

The Kept Animals Bill appears to have begun life as the Dogs and Domestic Animals (Accommodation and Protection) Bill, the snappier title having less bark but more bite perhaps. The Animals Abroad Bill doesn’t exist yet, but both appear to be the subject of a new policy: UK to lead the way on animal welfare through flagship new Action Plan

In case anyone might have thought otherwise (imagine her chewing a pencil stub and muttering “what to put… what to put?” while glancing anxiously at the midnight clock) the Queen doesn’t actually write her own speech, as a tweet from her firm explained:

Judicial review

Needless to say, some of the proposed Bills have provoked more interest and commentary than others. In relation to the government’s plans to “restore the balance of power between the executive, legislature and the courts”, Jonathan Jones QC, via the Institute for Government, thinks The Queen’s Speech suggests a major overhaul of judicial review is unlikely

Higher educational free speech

In relation to plans to make universities “comply with free speech duties or face sanctions”, there has been both a response by Universities UK (UUK, their representative body)

“Universities are rightly already required by law to protect free speech and academic freedom, and they update their policies on this regularly. It is important that the Higher Education (Freedom of Speech) Bill is proportionate — focusing on the small number of incidents — and does not duplicate existing legislation or create unnecessary bureaucracy for universities which could have unintended consequences.”

and from their regulator, the Office of the Independent Adjudicator for Higher Education: OIA response to Higher Education (Freedom of Speech) Bill.

Electoral integrity

In relation to plans to tackle voter fraud, which The Guardian in an editorial described as “cynical and hypocritical”, Liberty responded by saying

“The Electoral Reform Society has also conducted research that found during the Government’s May 2018 voter ID pilot, twice as many people were blocked from voting than there were cases of voter fraud in the preceding seven years. Those currently in power are grossly inflating the risk of electoral fraud as an excuse to usher in ever greater surveillance of the British public. Voter ID is a solution in search of a problem.”

Unlock Democracy also responded, arguing that “Voter suppression is at the heart of the Government’s new ‘Electoral Integrity’ Bill”, “a measure that has been widely-described as a solution trying to find a problem”. Instead, it suggested,

“the Government should outline its proposals for dealing with the real voter problem — the failure to get more than 9 million people onto the register and able to take part in elections”.

See also

Civil litigation

Defaulty judgment

Private Eye reported that there was a county court judgment against Boris Johnson for an “unpaid debt of £535” dating from October 2020. This prompted a certain amount of facetious speculation on Twitter, particularly in view of earlier reports about Johnson’s inability to pay for a lavish refurbishment of his Downing Street flat, suggesting that the debt related to a sofa or even a “settle out of court”. The Guardian reported the story saying Boris Johnson to apply to have court judgment struck out, says No 10 but lawyers with more experience of setting aside county court judgments were less sanguine than No 10 about how quick and easy that might be. There were questions about how, if the proceedings were validly served, they could have been missed, and whether this spoke more of Johnson’s disorganisation rather than impecuniosity. (See David Allen Green, Law and Policy Blog, The County Court Judgment against Boris Johnson — an explainer)

The action was commenced via the online court, designed for simple claims for unpaid debts, necessarily a liquidated (fixed) sum, and a default judgment would be issued automatically if a defendant failed to respond to the claim. But it later emerged, as reported in the Daily Mail, that Boris Johnson’s £535 ‘unpaid debt’ in county court judgment stems from Covid conspiracy theorist’s slander allegation. If the case was defamation, then it shouldn’t have been commenced using the online county court, as the damages (if any) would not have been assessed and that procedure is only for a fixed debt. (It should instead have been issued in the Queen’s Bench Division’s media and communications list.) The Guardian subsequently reported that the judgment had been set aside after an application (described in the headline as an “appeal”) to the court.

“A court official confirmed there was no longer a judgment present in the case after applications were considered by District Judge Hammond but was unable to provide further details. A No 10 spokesperson said: ‘The judgment in default has been set aside by the court. The claim has been struck out, deemed totally without merit and the government awarded its costs’.”

It does sound as though the matter was “fast tracked” in some way:

“On Thursday, the prime minister’s official spokesperson told a Westminster briefing: ‘We are moving at speed to get this removed. Courts do have the power to strike down vexatious claims as an abuse of the court, and they do issue various orders restricting litigants’ ability to continue with further claims’.”

The whole business provided an amusing distraction from other problems concerning Boris Johnson, who actually lives in a flat at No 11 Downing Street, and his financial affairs. But it also revealed one of the weaknesses of the online court portal, which provides largely automatic dispute resolution, or perhaps more accurately, debt recovery resolution for a very specific type of liquidated claim. It appears to have been easy for someone to use or even abuse it for the wrong sort of claim, gaming the system for a purpose for which it was not designed. Human courts are adept at dealing with bogus or vexatious claimants or those who have innocently but ignorantly strayed into the wrong procedural channel, albeit with the risk of costs sanctions or outright dismissal. But without human supervision, the online court needs to be better at filtering out faulty claims, and not be gamed into issuing a default judgment on the back of them. Also, it’s not exactly open justice or very transparent:

Somewhat amusingly, perhaps because the topic was in the newspapers, HM Courts and Tribunals Service issued a breezy press release extolling the virtues of said service, trumpeting that “Online Civil Money Claims is a digital service that allows members of the public to issue and respond to claims online for up to £10,000”. The press release said nothing about its most famous claim to date, but boasted that:

“We have issued more than 190,000 claims since we started this system in 2018. The average time to settle a case using the online process is 5.2 weeks, compared to 13.7 weeks using our non-reformed services. Around 91% of users say they are satisfied with the service.”

No doubt there are some at No 10 (or No 11) among the other 9% who do not share that sense of satisfaction.

(NB For clarity we should explain that there are actually two online money claims courts, the new Online Civil Money Claims (CMC) which is designed for claims of up to £10,000, and Money Claim Online (MCOL) which is for sums from £10,000 to £100,000. We assume the debt claim against Johnson for £535 was made via the CMC although the judgment was expressed to be made in the Online County Court.)

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

CHILDREN — Care proceedings — Diplomatic immunity: Barnet London Borough Council v AG, 13 May 2021 [2021] EWHC 1253 (Fam); [2021] WLR(D) 280, Fam D

COMPETITION — Merger — Initial enforcement order: Facebook Inc v Competition and Markets Authority, 13 May 2021 [2021] EWCA Civ 701; [2021] WLR(D) 277, CA

CONFLICT OF LAWS — Jurisdiction — Special jurisdiction: Alta Trading UK Ltd (formerly Arcadia Petroleum Ltd) v Bosworth, 14 May 2021 [2021] EWCA Civ 687; [2021] WLR(D) 285, CA

DEFAMATION — Libel — Public interest defence: Riley v Sivier, 14 May 2021 [2021] EWCA Civ 713; [2021] WLR(D) 282, CA

LANDLORD AND TENANT — Business premises (security of tenure) — Waiver of protection — Holding over — “Wilfully”: TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd, 14 May 2021 [2021] EWCA Civ 688; [2021] WLR(D) 288, CA

LIMITATION OF ACTION — Negligence — Firm of solicitors: Elliott v Hattens Solicitors, 18 May 2021 [2021] EWCA Civ 720; [2021] WLR(D) 292, CA

MINES — Petroleum and natural gas — Petroleum exploration and development licence: Apache UK Investment Ltd v Esso Exploration and Production UK Ltd, 17 May 2021 [2021] EWHC 1283 (Comm); [2021] WLR(D) 291, QBD

PLANNING — Development — Neighbourhood development plan: R (Oyston Estates Ltd) v Fylde Borough Council, 14 May 2021 [2021] UKSC 18; [2021] WLR(D) 281, SC(E)

REVENUE — Income tax — Assessment: Revenue and Customs Comrs v Tooth, 14 May 2021 [2021] UKSC 17; [2021] WLR(D) 278, SC(E)

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

RPC Perspectives: Forum conveniens — context is key: PJSC National Bank Trust v Mints [2021] EWHC 692 (Comm)

Nearly Legal: Rent Repayment Order and legal costs: Leibel v Baird (unreported)

RPC Perspectives: Hand in your notice — how to bring a successful warranty claim: Arani v Cordic Group Ltd [2021] EWHC 829 (Comm)

Law & Religion UK: Gender-critical opinions and philosophical belief: Forstater again: Forstater v CGD Europe [2019] UKET 2200909/2019, ET

RPC Perspectives: MONOPOLY — Hasbro fails to pass go in long-running trade mark dispute: Hasbro Inc v European Union Intellectual Property Office (EUIPO) (Case T‑663/19); EU:T:2021:211

Law & Religion UK: Swastikas, employment and “religious” symbols: Horvarth: Horvarth (Istvan) v Lidl Great Britain Ltd [2021] UKET 1307164/2019

NIPC Law: Snatching Defeat from the Jaws of Victory — Neurim Pharmaceuticals v Mylan: Neurim Pharmaceuticals (1991) Ltd v Generics UK Ltd (trading as Mylan) [2021] EWHC 530 (Pat)

Other recent publications

Danny Boy

Powerful BBC 2 television drama recounting the “true story of a young soldier’s journey from hero to alleged war criminal, the determined lawyer on his tail and their search for truth in the fog of war”. The determined lawyer in this case was solicitor Phil Shiner of Public Interest Lawyers, whose pursuit of allegations of human rights abuses against soldiers who had fought in the Iraq war prompted first the massive Al Sweady Inquiry and then Shiner’s own downfall as he was struck off the roll for dishonesty. See also, by John Hyde in the Law Society Gazette: Broken’ retired army officer suing MoD over Shiner claims.

Mental Capacity Report — May 2021

39 Essex Chambers specialist Court of Protection team provide the latest of their regular updates on recent case law and related developments.

LMAA Terms 2021 — new rules for marine arbitrations reflect COVID-19 impact

Christopher Dunn and Brittany Ling of Kennedys discuss the new set of London Maritime Arbitrators Association (LMAA) terms and procedures, coming into effect from 1 May, including a number of key revisions designed at digitalising the arbitration procedure. You can find the new terms here.

Isobel Williams: Catullus: Shibari Carmina: Online Book Launch

Spellbinding readings and other performance at the online launch of a book of translations of poems of Catullus by Isobel Williams, perhaps best known to lawyers as the author of The Supreme Court — A Guide for Bears and her subtle drawings from that court, which have also appeared on this blog. The event is hosted by Catherine Rowlands of Cornerstone Barristers chambers.

And finally…

Tweet of the week

comes from Nadia who explains what she likes about the Bar:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

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