Weekly Notes: legal news from ICLR, 18 July 2022
This week’s roundup of legal news includes a rising tide of filth, plus problem solving criminal courts, procedural problem solving civil courts, human rights laws, and a historic view of policing. Plus recent case law and commentary. And ice cream.
Rising tide of filth
The Environment Agency’s latest report, Water and sewerage companies in England: environmental performance report 2021, does not water down its criticism of the sector’s (one can only say) shitty adherence to performance targets. Introducing the report, the agency’s chair, Emma Howard Boyd, says:
“In 2021, the environmental performance of England’s 9 water and sewerage companies was the worst we have seen for years. … The sector’s performance on pollution was shocking, much worse than previous years. … Company directors let this occur and it is simply unacceptable. Over the years the public have seen water company executives and investors rewarded handsomely while the environment pays the price. The water companies are behaving like this for a simple reason: because they can. We intend to make it too painful for them to continue as they are.”
One cause of her obvious exasperation must be a feeling of the agency’s impotence in the face of the water companies’ apparent impunity. There is also anger at the approach of the courts in the penalties imposed for proven breaches:
“The amount a company can be fined for environmental crimes is unlimited, but fines currently handed down by the courts often amount to less than a chief executive’s salary. We need courts to impose much higher fines for serious and deliberate pollution incidents. The threat of significant impending financial penalties has an impact. Investors should no longer see England’s water monopolies as a one-way bet.”
It’s not just the fines for the companies; there should be penalties for the directors too:
“We would like to see prison sentences for chief executives and board members whose companies are responsible for the most serious incidents. We would also like to see company directors being struck off so they cannot simply delete illegal environmental damage from their CV and move on to their next role.”
A more determined approach would be welcomed by the public too, one assumes, given the attention the problem has received over the last year and the strength of public feeling behind campaigns by the likes of Feargal Sharkey and Surfers against Sewage.
As for the report itself, while accepting that some companies have done less badly than others, the overall picture is dire. Serious pollution incidents increased to 62, the highest total since 2013. Measured against the agency’s four-star rating, most of the nine water companies “went the wrong way: down”. Boyd concludes:
“This report does not cover every aspect of environmental performance but combined with Environment Agency data about the ecological status of rivers, developments in citizen science and our insistence that monitors are installed on all storm overflows, both on the network and at sewage treatment works, the public now have access to a damning evidence base.
Water companies exist to serve the public. Their environmental performance is a breach of trust. The polluter must pay.”
Problem solving courts
Problem solving courts (PSCs) are designed to reduce crime by involving the court more closely in rehabilitation (in both senses) as well as the punishment of offenders who may be motivated by drug dependency and other social problems. PSCs have been shown to be effective in reducing crime and related social problems, and now at last (nearly a decade after one of our many former Lord Chancellors promised a “rehabilitation revolution”) they are being tried out in a £8.25-million pilot in Liverpool, Teesside and Birmingham. According to the government’s announcement,
“Ground-breaking new courts will … trial a tougher approach to community sentences for low-level criminals who would otherwise face short jail terms.
Under unique orders which can be issued by the PSCs, offenders will see the same judge at least once a month, have intense support and supervision from the Probation Service, and get wraparound services tailored to their individual needs — such as from substance misuse and recovery agencies, housing support and educational services.
They will also get treatment and undertake frequent, random drug testing where appropriate. Offenders will be offered the full range of treatment interventions to help them achieve abstinence. …
Judges and magistrates sitting in the PSCs will use incentives such as relaxing conditions to recognise good progress, as well as sanctions, such as increased drug testing and court reviews, when behaviour fails to meet agreed standards. They can also jail offenders for failure to stick to their sentence by imprisoning them for up to 28 days, up to a maximum of three times.”
One can only hope that the pilot is successful and that, notwithstanding the political turmoil at Westminster, funding continues to be available so they can be rolled out more extensively, solving many problems in one place.
The UK Supreme Court and Privy Council have issued their annual report for 2021–2022. In his introduction the President of the court, Lord Reed of Allermuir, says:
“In what has undoubtedly been another challenging year for us all, the Court has focused on resilience during the pandemic and recovery after it, and has managed to thrive despite the uncertainty that the Covid-19 pandemic has presented. It has been wonderful for Justices, staff and litigants to return to in-person hearings for the majority of our cases, whilst retaining the flexibility of virtual sittings if needed. It is important to us that members of the public can walk into our beautiful building and listen to a hearing, as well as watch online.”
He also draws attention to the court’s s judicial diversity and inclusion strategy, which has “been a significant step forward in ensuring the Court helps widening participation from under-represented groups in the legal sector”.
Looking ahead his priorities remain “to build the reputation of the UKSC as one of the world’s leading courts, with a robust approach to independence and diversity, and enhanced relationships with fellow courts.”
Among the international engagements highlighted are a meeting co-hosted by the Association of Marshall Scholars and American College of Trial Lawyers in September 2021 bringing together distinguished American and British Judges, lawyers, and legal experts to discuss the Rule of Law, a visit by a delegation from the Conseil d’Etat in November 2021, and a meeting with the Ambassador and the Chairman of the Constitutional Council of Kazakhstan.
Among the international disengagements, as one might say, was the decision in March 2022 by Lord Reed and Lord Hodge to resign as non-permanent judges of the Hong Kong Court of Final Appeal. (Other former Supreme Court Justices remain there, apparently, but Lord Reed makes no comment on that.)
An updated edition (or “interim revision” as it’s described) of the Equal Treatment Bench Book has been released this month. The “dynamic document” takes the form of a 571-page PDF and warns readers that “In the event that you choose to print or download it, please be aware that it is subject to modification and improvement from time to time”.
The last interim revision was published only six months ago, but seems to have generated quite a lot of comment at the time, notably on its guidance on ‘Trans People’ in chapter 12, which had in turn been revised in response to earlier criticism or, to put it neutrally, feedback. See, for example, Legal Feminist, The new interim version of the Equal Treatment Bench Book.
An interesting piece in this month’s Counsel magazine, Gender non-conformity at the Bar, reveals just how effective or otherwise this massive, judicial reference work really is, in the context of court procedure more generally. Alex Benn, a gender non-conforming barrister who wishes to use the title “Mx”, notes that
“Like the traditionally gendered titles, ‘Mx’ does not come from a piece of legislation. It is customary. Unlike them, it traces its origins to a more recent point in history. It does, however, feature in the Equal Treatment Bench Book (though only some judges seem to realise that). Because of these features, it can easily slot into the existing court process. Unhelpfully, the Crown Court has a sign-in system that doesn’t specify the title of the advocate, so a judge only receives a list of full names and usually makes assumptions based on them. I have tried to mitigate this by adding a short line about using ‘Mx’ to my comments on the Crown Court Digital Case System before hearings. If we’re thinking about practical steps in this area, an easy one would be for courts to add the advocate’s title to the list that the judge receives.”
Service by NFT
A claimant in the High Court has been granted permission to serve proceedings on ‘persons unknown’ via a non-fungible token (NFT) on the blockchain. Reported by Sam Tobin in the Law Society Gazette, the recent decision by Mr Justice Trower is said by the claimant’s lawyers to be a “legal first” in this country and indeed Europe, second only to an order made by the New York Supreme Court in June. The claim concerns alleged fraud by the defendants, who are accused of inducing the claimant to transfer funds from his crypto wallets to trade on a fake investment platform, thereby misappropriating around £1.8m worth of Tether and about £190,000 of USD Coin.
The claimant’s solicitors, Giambrone & Partners, have written the case up in more detail on their website: Service by NFT and Cryptocurrency Exchanges recognised as Constructive Trustees of Misappropriated Cryptocurrency and we’ve created an index entry with link to the judgment here: D’Aloia v Person Unknown  EWHC 1723 (Ch).
‘Omnibus’ claim barred
In another practice point, reported by John Hyde in the Law Society Gazette, an attempt to issue claims by 3,450 claimants against the same defendant on one form was not permitted by Master Davison last week, in Abbott & Ors v Ministry of Defence  EWHC 1807 (QB). The master set out his reasons in an expanded version of an extempore judgment intended for publication:
“Because it deals with a point that has now arisen several times in recent multi-party litigation against the MOD and because it has the potential to affect other cases (and also in order to spare the claimants the time and expense of obtaining a transcript), I am promulgating my judgment on Bailii.”
Law firm Hugh James attempted to launch what the master called an “omnibus” claim against the Ministry of Defence for various different types of alleged hearing loss injury. This was the third time the firm had tried this approach. But the master said the claims were too disparate and could not conveniently be disposed of in the same proceedings. He said, at paras 8–9:
“The proposal to place 3,500 separate claims on one claim form would put an impossible strain on the court’s computerised case management system — CE File. The system has no facility to create sub-files for individual, unitary claims. …
I have therefore directed that unless individual claim forms are issued within a period of 6 months, the claims will be struck out.”
A series of blog posts by Julian Petley, emeritus and honorary professor of journalism at Brunel University London, discussing proposed changes to the Human Rights Act, have been published on Inforrm’s blog:
- Liberty and Human Rights. Part One: The Atavistic Press
- Liberty and Human Rights. Part Two: Dominic Raab and Magna Carta
- Liberty and Human Rights. Part Three: Dominic Raab and the Bill of Rights 1689
- Liberty and Human Rights, Part Four: Parliamentary Sovereignty and the ‘Elective Dictatorship’
Meanwhile Joshua Rozenberg, in a post on A Lawyer Writes, wonders whether the Bill of Rights Bill (BORB) will actually survive the political turmoil of electing a new leader of the Conservative Party and, consequently, the next Prime Minister, with a cabinet reshuffle inevitably following. In Kill Bill? he writes about the cancellation by the current Lord Chancellor, Dominic Raab of an appearance before the Joint Committee on Human Rights to answer questions about the Bill, which is very much his baby, and infers that Raab has foreseen the likelihood that he won’t be in the same job after the summer recess.
“What would be the point of Raab answering questions next week about a bill that may not even receive a second reading in the Commons? Far from being disappointed, the human rights committee should be pleased to see this legislation slowly fading away.”
However, we should not take it for granted that Raab will not be replaced by someone equally gung-ho about scrapping the Human Rights Act (such as, gulp, failed leadership contestant Suella Braverman AG…) In that context see also, from Nicholas Reed Langen on the Justice Gap, The ‘fringe lunatics’ go centre-stage as Tory leadership election hots up.
Every reason, therefore, to complete that survey for the joint committee (above).
Policing in the 18th Century
Middle Temple Library’s 2022 summer exhibition tells the story of early policing in London, from the Watchmen of the 1400s to the presence of the Metropolitan Police at the Honourable Society in 1850. Their latest blog-post, The Criminal Thames in the 18th Century (by Jake Hearn, Assistant Librarian) tells one of the vignettes from that story: the work and significance of Scottish magistrate Patrick Colquhoun (1745–1820), whose two treatises feature in the exhibition. He in turn was influenced by novelist, magistrate, and Middle Temple member, Henry Fielding (1707–1754).
The exhibition — Watchmen, Charlies, Peelers: The Story of Policing — is on display in the Library at the Honourable Society of the Middle Temple until August 2022. For full information, and to watch the exhibition’s official video, please visit the Library’s exhibitions page.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CONFLICT OF LAWS — Sovereign immunity — Diplomatic immunity: JUDICIAL PRECEDENT — Court of Appeal decision — How far binding: Basfar v Wong, 06 Jul 2022  UKSC 20;  3 WLR 208;  WLR(D) 305, SC(E)
COSTS — Order for costs — Low value personal injury claim: Doyle v M & D Foundations and Building Services Ltd, 08 Jul 2022  EWCA Civ 927;  WLR(D) 301, CA
COURT OF APPEAL (CIVIL DIVISION) — Practice — Permission to appeal: UCP plc v Nectrus Ltd, 11 Jul 2022  EWCA Civ 949;  WLR(D) 309, CA
EMPLOYMENT — Protected disclosure — Unfair dismissal: Kong v Gulf International Bank (UK) Ltd, 08 Jul 2022  EWCA Civ 941;  WLR(D) 302, CA
LOCAL GOVERNMENT — Homeless person — Review of local housing authority decision: Abdikadir v Ealing London Borough Council, 15 Jul 2022  EWCA Civ 979;  WLR(D) 311, CA
MEDICAL PRACTITIONER — Medical treatment — Withdrawal of ventilation: Barts Health NHS Trust v Dance, 06 Jul 2022  EWCA Civ 935;  WLR(D) 299, CA
PRACTICE — Claim — Strike out: Municipio de Mariana and others v BHP Group (UK) Ltd ( formerly BHP Group plc), 08 Jul 2022  EWCA Civ 951;  WLR(D) 300, CA
PRACTICE — Injunction — Interlocutory: In re B (Children: Police Investigation), 15 Jul 2022  EWCA Civ 982;  WLR(D) 310, CA
SOLICITOR — Costs — Damages-based agreement: Candey Ltd v Tonstate Group Ltd, 06 Jul 2022  EWCA Civ 936;  WLR(D) 295, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
NIPC Law: Colour Marks: Nestlé SA v Cadbury UK: Societe des Produits Nestle SA v Cadbury UK Ltd  EWHC 1671 (Ch), Ch D
RPC Perspectives: High Court dismisses application for extension of limitation period on basis of fraud at summary judgment stage: Libyan Investment Authority v Credit Suisse International  EWHC 2684 (Comm), QBD
Nearly Legal: Rabbit holes to fall down: Albert Court (Westminster) Management Company Ltd & Ors v Fetaimia & Anor  EWHC 1657 (QB), QBD
Local Government Lawyer: Lack of regard for council planning policy on playing fields led to unlawful planning permission, High Court finds: TV Harrison CIC v Leeds City Council  EWHC 1675 (Admin), QBD
Law Society Gazette: High Court permits service by NFT in ‘English legal first’: D’Aloia v Person Unknown  EWHC 1723 (Ch); PDF, Ch D (Trower J)
Transparency Project: Archie Battersbee — best interests assessment in the High Court: Barts Health NHS Trust v Dance & Ors (Re Archie Battersbee) EWFC 80, Fam Ct
Legal Futures: “No claim is unmanageable”: Court of Appeal reinstates huge group action: Municipio de Mariana and others v BHP Group (UK) Ltd ( formerly BHP Group plc)  EWCA Civ 951;  WLR(D) 300, CA
UK Supreme Court Blog: No diplomatic immunity for actions grounded in modern slavery allegations: Basfar v Wong  UKSC 20;  WLR(D) 305, SC(E)
Family Law Week: In re G (Child Post-Mortem Report: Delays)  EWFC 55, Fam Ct
Free Movement: £17,500 awarded for 40 days of unlawful detention during the pandemic: R (Abulbakr) v Secretary of State for the Home Department (Issue of Damages)  EWHC 1183 (Admin), QBD (Admin)
Cearta.ie: It’s good to TalkTalk — Part 1: misuse of private information claims for data breaches: Smith v Talktalk Telecom Group plc  EWHC 1311 (QB);  WLR(D) 285, QBD
Other recent publications
Court of Protection Handbook: Remote observations of hearings: new framework
Transparency Project: Remote observation of court hearings — new rules
The Ministry of Justice has published new statistics on the Diversity of the judiciary: 2022 statistics
Reviewing them, Monidipa Fouzder in the Law Society Gazette wonders When will we see more black lawyers on the bench?
Bellingcat have published a Statement on the Designation of Bellingcat as an ‘Undesirable Organisation’ in Russia
“The Russian government’s designation comes at a moment of total throttling of free speech in Russia in the aftermath of Russia’s invasion of Ukraine. … We accept the Russian government’s designation as direct evidence of the importance, relevance and effectiveness of our investigations. We will continue unabated our investigative work which seeks to shed light on wrongdoing globally, including in Russia.”
For more about Bellingcat, see our Book Review: We are Bellingcat by Eliot Higgins
The Law & Religion UK blog report on the Assisted dying debate held in Westminster Hall on 4 July 2022 as a consequence of the e-petition 604383: Legalise assisted dying for terminally ill, mentally competent adults.
Tweet of the week
is from Oxford Mail reporter, Tom Seaward, on the exercise of judgment in a heat wave.
Sure his tweet got a lot of licks! (Surely “likes”?, Ed)
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.