Weekly Notes: legal news from ICLR, 21 February 2022

Figure of Justice with sword and scales, litigating parties and a large quill in the hand of an unseen judge, writing
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Judgments

Stern warning over breach of embargo

The Master of the Rolls, Sir Geoffrey Vos has issued a stern warning over breaches of the embargo on disclosure of the contents of draft judgments circulated to counsel and solicitors in advance of delivery under Practice Direction 40E of the Civil Procedure Rules. In R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181; [2022] WLR(D) 83, CA it appeared that staff in the chambers of two of the barristers appearing in the case had drafted and had then accidentally published a press release announcing the result of the case the day before judgment was due to be delivered.

Giving the main judgment, the Master of the Rolls, sitting with Nicola Davies and Dingemans LJJ, noted at para 21:

“It seems, anecdotally at least, that violations of the embargo on publicising either the content or the substance of draft judgments are becoming more frequent. The purpose of this judgment is not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected. In future, those who break embargoes can expect to find themselves the subject of contempt proceedings as paragraph 2.8 of CPR PD40E envisages.”

He made two general observations about the process governed by CPR PD40E. First, “it was not appropriate for persons in the clerks’ rooms or offices of Chambers to be given a summary of its contents”, and secondly, “drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo”.

He then made two more specific observations about what happened in the present case, which involved Matrix Chambers: “too many people in Matrix seem to have had access to the summary contained in the press release” and “the measures taken by Matrix to protect the confidentiality of the draft judgment and its contents were lax”.

Counsel accepted responsibility and apologised for the mixup but their Lordships were drawing attention to the matter because the breaches that had occurred were not alone. The Master of the Rolls concluded:

“It is the personal responsibility of counsel and solicitors instructed in a case in which an embargoed draft judgment is provided to ensure that they are complied with. The purpose of the process is to enable the parties to make suggestions for the correction of errors, prepare submissions and agree orders on consequential matters and to prepare themselves for the publication of the judgment.”

Best and worst HR judgments

Strasbourg Observers has launched its annual poll for Best and Worst ECtHR Judgment and Best Separate Option of 2021. They provide a shortlist of what they consider to be the five best and five worst ECtHR judgments of 2021 and the five best separate opinions of 2021, along with background information on those candidates. They invite you to cast your vote for a judgment where the Court made a particularly ground-breaking or positive impact on the protection of human rights, and where it perhaps failed to fulfill its mission and which judge(s) exemplified the dedication to safeguarding human rights and to sound legal reasoning and knowledge in a separate opinion. (Source: Global Freedom of Expression, Columbia University: Newsletter, w/e 19 February 2022)

Law reporters may have their own private opinions about best and worst judgments to write headnotes for, to check the accuracy of citations and quotations (we leave to others the question of relevance, etc) and to await the approval of judges to whom proofs have been sent. But we keep them to ourselves. It’s all part of the job. One may simply observe that the soul of wit is brevity, and sometimes less is more.

Survey of judgment users

The National Archives, who will soon be launching a new national database of judgments for senior courts in England and Wales, would like to get a better understanding of how different groups of users find and access court judgments and tribunal decisions. You can share your experiences of looking for and accessing court judgments or tribunal decisions by following the link and completing the survey below:

1. Legal professionals and advisers survey

2. Members of the public survey (including people going to court or tribunal, or friends or colleagues who are supporting someone else going to court or tribunal)

The responses from this will directly inform how the National Archives design and develop this new online service, which is due to launch in April 2022. The surveys take less than ten minutes to complete and include the opportunity to volunteer for further user research such as testing the latest version of the service.

Post Office IT scandal

Business committee report

Earlier this month the House of Commons Business, Energy and Industrial Strategy (BEIS) Committee published its interim report on the Post Office and Horizon — Compensation scheme. The committee had already begun its own inquiry into the scandal but has paused its oral evidence sessions pending the conclusion of the public (now statutory) inquiry subsequently set up under the chairship of Sir Wyn Williams (see Weekly Notes, 14 February 2022). So the BEIS committee is currently focusing on the specific issue of compensation for sub-postmasters. With Sir Wyn’s permission the committee has held oral evidence sessions on this issue and produced this interim report on progress, or lack of it, in respect of three categories of claimant.

  1. The 555 group action litigants who pursued a civil claim for damages against the Post Office and achieved a settlement most of which was swallowed up in costs. They are excluded from the Historic Shortfall Scheme, which is available to those who covered Horizon losses through their own money. The committee demands that “the Government as a matter of urgency commit to ensuring that the 555 are fully compensated for all of their losses on the same basis as other victims of this scandal receiving compensation”.
  2. Prosecuted Sub-postmasters and those with ‘unsafe’ convictions. It is estimated that 736 sub-postmasters had been subjected to “unsafe” Horizon convictions, but so far only 72 have had their convictions overturned by appeal courts following references by the Criminal Cases Review Commission in the wake of the group action settlement, and only 66 of them have approached the Post Office for interim compensation payments of £100,000 ahead of a final payment. Many of those unsafely convicted have yet to apply — often out of suspicion and mistrust of the Post Office — and some have not even been found. The committee recommends the setting up of “an independent intermediary body as a trusted first point of contact for those wrongly convicted because of Horizon, in particular for the 576 convicted sub-postmasters who have not yet come forward.” It also recommends further actions to ensure the speedy payment of interim and final compensation to all the wrongly convicted.
  3. The Historical Shortfall Scheme. This is the scheme set up in 2020 to compensate subpostmasters who lost money, thanks to mistakes by Horizon, but who may not have been convicted. The committee expressed its concern that the scheme was being administered by the firm Herbert Smith Freehills which was associated with the discredited HBOS Reading banking scandal compensation scheme, found in a review by retired High Court judge Sir Ross Cranston to have had ‘serious shortcomings’. The involvement of the Post Office in the scheme, its slowness in processing claims, the obscurity of the criteria being applied and the procedural obstacles to claimants were also criticised. The committee recommended, inter alia, “that the Government set up a properly resourced independent intermediary to assist sub-postmasters seeking to overturn convictions and seek compensation. We recommend that this same body should also be tasked with assisting sub-postmasters who are accessing the Historic Shortfall Scheme”.

Nick Wallis, author of the Great Post Office Scandal, comments in his latest update:

“Delay is a weapon lawyers and civil servants can deploy to make things easier for them and more agonising for those waiting for justice. Dead people don’t need compensation. Assuming the Post Office is not deliberately slowing the process down in the hope it will end up being cheaper to do so, it remains unconscionable that:

a) so many people are still waiting to have their HSS applications properly assessed and

b) 33 people have already died whilst waiting.

As ever, no one will be held responsible for this delay, which just so happens to work in the Post Office and government’s favour.”

However, it looks as though the Solicitors Regulation Authority may finally be going to take steps to investigate lawyers acting for the Post Office: see Legal Futures, SRA obtains disclosure order in Post Office lawyers investigation

See also:

Court circular

A princely settlement

The civil litigation brought by Virginia Giuffre in a New York court against Prince Andrew has been settled out of court. Although the sums involved have not been disclosed, there is general agreement that Giuffre has won a moral if not legal victory, and that Prince Andrew has lost both his reputation and a lot of his own (or his mother’s) money. The outcome is still probably better for him than any of the alternatives.

The settlement was the probable and (to most lawyers) predictable culmination of a sequence of aggressive pre-trial feints and sallies, mostly on the Prince’s side, including a challenge to jurisdiction, allegations of bad faith and hypocrisy, mercenary motives and so forth. Although the Prince had at one point claimed to actually want a trial by jury, that always seemed like a whistle in the dark: one can only recall the hubristic claim by disgraced politician Jonathan Aitken to rely on the “simple sword of truth and the trusty shield of fair play”. No one is suggesting Prince Andrew might perjure himself as Aitken went on to do, but the likelihood of being cross-examined over things said in his unforced BBC television interview with Emily Maitlis in 2019 would have made the prospect of giving evidence a risky strategy. Even if the claim against him failed, the reputational damage would have been colossal.

The settlement pivots on a curious figleaf. There is no admission that the Prince ever met Giuffre let alone abused her. Instead, the Prince has conceded first that Giuffre was, indeed, a victim of sexual abuse by reason of her involvement in the machinations of Jeffrey Epstein; second that his own association with and reputational endorsement of Epstein was problematic and regrettable; and third, that in recognition of those facts (and perhaps to avoid a lot of unpleasantness in a courtroom under the gaze of a dozen hard-faced New York jurors), he is content to pay her personally, and donate to her charity, a lot of money. And presumably someone will be footing the bill for the massive legal costs incurred to date.

See also:

Social media

Unholy likings (or: Don’t go hearting that nude)

It is not just the judiciary who are exhorted by regulators to avoid the pitfalls of social media. The clergy, too, are discouraged from publishing or even engaging with content on social media, such as Twitter, in such a way as to scandalise their followers.

Such was the case of the Reverend Mike Todd, who faced a charge of “conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders” within Section 8(1)(d) of the Clergy Discipline Measure 2003 because he had “liked” tweets that contained sexually explicit and/or offensive photographic material and had thereby shared them publicly. The complaint was that he had “liked” images of a naked male on four occasions between 1 May and 3 July 2019. The effect of him liking the tweets was that his followers, who may not have shared all his enthusiasms, were then shown the content he had liked in their own timelines. The Tribunal did not consider that his risk-taking demonstrated compliance with his obligation as a priest to frame his life as a wholesome example to others.

The case is reported by David Pocklington on the Law & Religion UK blog: CDM Tribunal considers “liking” tweets. A further post on the blog helpfully explains the Twitter algorithms that govern the effect of liking particular tweets and how liked items may end up in your timeline: Twitter “likes”, “retweets” and “replies”

Recent case summaries from ICLR

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

BUILDING — Party wall — Dispute resolution procedure: Shah v Power, 11 Feb 2022 [2022] EWHC 209 (QB); [2022] WLR(D) 81, QBD

CHILDREN — Orders with respect to children — Specific issue order: In re B (A Child), 16 Feb 2022 [2022] EWFC 7; [2022] WLR(D) 87, Fam Ct

DISCRIMINATION — Disability — Disabled person: X v HR Rail SA, 10 Feb 2022 (Case C-485/20); EU:C:2022:85; EU:C:2021:916; [2022] WLR(D) 78, ECJ

EMPLOYMENT — Contract of employment — Agency worker: Angard Staffing Solutions Ltd v Kocur, 17 Feb 2022 [2022] EWCA Civ 189; [2022] WLR(D) 88, CA

HUMAN RIGHTS — Life — Breach: Traylor v Kent and Medway NHS Social Care Partnership Trust, 10 Feb 2022 [2022] EWHC 260 (QB); [2022] WLR(D) 80, QBD

LOCAL GOVERNMENT — Homeless persons — Local connection: R (Minott) v Cambridge City Council, 18 Feb 2022 [2022] EWCA Civ 159; [2022] WLR(D) 90, CA

PLANNING — Development — Environmental assessment: R (Finch) v Surrey County Council, 17 Feb 2022 [2022] EWCA Civ 187; [2022] WLR(D) 89, CA

PRACTICE — Court of Appeal (Civil Division) — Draft judgment: R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy: 16 Feb 2022 [2022] EWCA Civ 181; [2022] WLR(D) 83, CA

TRIBUNAL — Upper Tribunal — Practice and procedure: Hussain v Secretary of State for the Home Department (GA (Ethiopia) v Secretary of State for the Home Department), 11 Feb 2022 [2022] EWCA Civ 145; [2022] WLR(D) 82, CA

Recent case comments on ICLR

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

Nearly Legal: This is not my beautiful house: Rasool v Paddington Company One Ltd [2021] EWHC 3633 (QB), QBD

5RB Media & Communications Law: Blake, Seymour & Thorp v Fox [2021] EWHC 3463 (QB), QBD

Inforrm's Blog: News: ZXC v Bloomberg, Landmark ruling as Supreme Court finds that suspects in criminal cases have a reasonable expectation of privacy: ZXC v Bloomberg LP [2022] UKSC 5, SC(E)

RPC Perspectives: High Court finds that a cryptocurrency exchange arrangement was not a trust: Wang v Darby [2021] EWHC 3054 (Comm); [2021] WLR(D) 585, QBD

Gatehouse Chambers: “The law is not in a state of flux”: The Court of Appeal clarifies when public authorities may owe a duty of care: Tindall v Chief Constable of Thames Valley Police [2022] EWCA Civ 25, CA

UK Human Rights Blog: Court of Appeal refuses permission to judicially review infected blood compensation scheme: R (CN) v Secretary of State for Health and Social Care [2022] EWCA Civ 86; [2022] WLR(D) 68, CA

A Lawyer Writes: What if the top court gets it wrong? Attorney General v Crosland [2021] UKSC 58; [2022] 1 WLR 367, SC(E)

Law and Policy Blog: Guiffre v Andrew — an explainer about civil claims, and why they usually settle: Giuffre v Prince Andrew (settlement) US Dist Ct (SDNY)

Other recent publications

Writing a Law essay? Remember to argue!

Prof Mark Elliott on Public Law for Everyone provides guidance on the writing of essays and how to structure a piece depending on whether you are arguing for a particular proposition or thesis, or discussing and resolving a problem.

A decent death

This is the title of a recent article in the London Review of Books by retired Lord Justice Sir Stephen Sedley, on the subject of assisted dying. In the latest episode of Law Pod UK, the UK Human Rights Blog podcast, Sir Stephen discusses his essay with Trevor Moore, Chair of the assisted dying campaign My Death, My Decision.

‘Settlement Equals Guilt,’ the Sun tells Prince Andrew. Where does that Leave the Sun?

Prof Brian Cathcart on Inforrm’s Blog discusses the somewhat inconsistent approach by The Sun newspaper to the settlement of civil claims. Sienna Miller sued the newspaper for hacking her phone and other forms of illegal intrusion, but was offered so much money that she was effectively obliged to settle. But when Virginia Giuffre accepted a settlement of her claims against Prince Andrew, an editorial in the paper was quick to accuse the Prince of having “paid hush money” and “bought off a sex abuse victim”.

Charitable Health Service

Agnes Arnold-Forster in the London Review of Books discusses the Captain Tom Foundation and the problem with charity in the NHS, including what happened to the £33 million that Captain Tom raised himself just by walking up and down his garden during the lockdown, and what it tells us about the NHS’s increasing reliance on charitable giving.

And finally…

Tweet of the week

is from Inner Temple, promoting its new careers guide.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

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.

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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.

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