Weekly Notes: legal news from ICLR, 23 May 2022
This week’s roundup of legal news includes access to justice, legal aid, law in cyberspace, and criminal inaction. Plus recent case law and commentary.
Access to justice
Social Market Foundation report
Advisers stationed at GP surgeries, council offices, libraries, and other convenient locations could help more people get more timely access to civil justice, according to a report from the Social Market Foundation published today. It also recommends that policymakers should
- reverse cuts to civil legal aid,
- prioritise early intervention to help people solve legal problems, and
- collect better data on the justice system.
The briefing paper entitled Right time, right place: improving access to civil justice is based on a seminar which the non-partisan think-tank organised in January 2022, as part of their Justice in the Balance project in partnership with AIG.
The report authored by Aveek Bhattacharya discusses access to civil justice in England and Wales, and how policymakers can create a better functioning and more equitable system. It says around two-thirds of people have experienced civil justice issues in the last four years, without necessarily being aware that that was what they were. But the availability of support to help people through civil justice issues had been significantly curtailed as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (which came into force in 2013). One consequence of this is that most people, faced with a legal problem, simply “muddle through without formal resolution or legal support”.
“Those that do seek assistance often go to non-expert. The Legal Services Board/Law Society survey found that 36% sought support from family and friends, 22% a solicitor and a substantial 14% went to see a doctor for help (particularly for injury and employment issues, but also those related to financial and benefit disputes).”
Medical settings seem to be particularly critical. People often talk to a doctor about their problems”. The idea of providing advice in a medical setting is not new: medical-legal partnerships have operated in the USA and Australia for several decades, the report says, but now British institutions are beginning to look more closely at some aspects of the model.
The report acknowledges that recent developments in online justice processes, such as online small claims, have made significant progress in promoting digital civil justice. “Making proceedings more convenient, user-friendly, and potentially more efficient has likely improved many people’s experiences of the system”. However, “this has raised understandable concerns about the digitally excluded and their ability to make use of such tools, especially if they are used to compensate for the decline of existing services”.
Cost of cuts
In his annual evidence session with the House of Lords constitution committee last week the Lord Chief Justice, Lord Burnett of Maldon began by explaining and unpacking to some extent the very alarming numbers representing the backlog in the Crown Court. The two greatest constraints on the system were a shortage of judges and a shortage of lawyers. The latter had been caused in part by “the serious attrition on remuneration rates that came through legal aid”.
The withdrawal of legal aid was also causing problems in the family courts, he went on to say: “It is quite clear that the involvement of lawyers kept cases out of the courts and increased the settlement rate and the mediation rate; that is just one of the realities.” Asked to explain further about the unintended consequences of the cuts he said:
“It is all very well for a department to look at a measure it introduces and say we have saved ourselves tens of millions of pounds. It makes more sense to look at what the impact is across the whole of the public sector and, more widely, society. The withdrawal of legal aid in private law family cases has undoubtedly increased the burden on the courts. That could be calculated. It has reduced the number of cases that mediate. That could be calculated. It has increased the volume of cases that come in and take up time. That could be calculated.
But in private law family cases, there is a much broader cost of conflict between parents: the impact on them and the impact on their children. I am not an economist; I could not pretend to understand the detail of the calculations that might be necessary. But parents who are engaged in conflict unnecessarily or for longer than they should be will not be likely to deploy their full economic activity. Somebody could calculate that. The impact on children is not necessarily short-term. We all know that the longer children are caught up in parental conflict, the more likely it is to have a long-term impact.
I simply ask the question. I am not expressing a view. Is the saving being made from private law family legal aid leading to savings across the system?”
Likewise, when it came to the ongoing dispute over criminal legal aid (see below), he warned against the risks of not adopting a holistic approach:
“If it is not dealt with, the numbers of criminal barristers and solicitors will continue to decline, at a time when police numbers are going up and there is enormous pressure on the police and the prosecuting authority to bring more cases into the criminal courts.”
‘No returns’ protest action may escalate
“The past twenty-seven days of no returns has demonstrated, beyond question, that the Criminal Bar remains indivisible and united”, said the chair of the Criminal Bar Association Jo Sidhu QC in today’s Monday Message.
“At our recent meeting with Heads of Chambers and Circuit Leaders from across the jurisdiction, the message was clear: there is universal commitment to the withdrawal of goodwill and a determination to maintain solidarity in the pursuit of our legitimate demands for a settlement that secures the long-term viability of a career in criminal law and the future sustainability of the Criminal Justice System.”
Recognising that the current strategy, while imposing lower burdens on most practitioners, was taking time to inflict significant disruption to the business of our criminal courts, he added that:
“The CBA has never ruled out an escalation of action if such a course is mandated by our membership. The recent feedback we have received from many members indicates a willingness and desire to adopt more disruptive forms of action in conjunction with the current strategy.”
Over the coming weeks, the CBA would therefore be seeking the views of the membership on whether the current action should be escalated in the face of the government’s intransigence. “Subject to the feedback we receive from all quarters, we propose to hold a further ballot later in June to determine what, if any, additional action should be pursued.”
Law in cyberspace
Cyberspace is not a lawless ‘grey zone’, said the Attorney General Suella Braverman QC MP in a speech last week in which she set out out the government’s vision for the application of international law to cyberspace, against the backdrop of the Prime Minister’s Integrated Review and the Government’s National Cyber Strategy. She said:
“I’m focusing on the law applicable in peacetime because the UK has already set out that cyber operations are capable of breaching the prohibition on the threat or use of force, and that the law applicable in armed conflict applies just the same to the use of cyber means as other means of waging war. And I want to be clear that in the same way that a country can lawfully respond when attacked militarily, there is also a basis to respond, and options available, in the face of hostile cyber operations in peacetime.”
The United Kingdom’s aim was, she said, to ensure that “future frontiers evolve in a way that reflects our democratic values and interests and those of our allies”.
“The law needs to be clear and well understood if it is to be part of a framework for governing international relations and to rein in irresponsible cyber behaviour. Setting out more detail on what constitutes unlawful activity by States will bring greater clarity about when certain types of robust measures are justified in response.”
She went on to discuss how international law applied in the context of cyber activities, what might constitute a breach of that law, and how it might be enforced.
See also: Joshua Rozenberg, A Lawyer Writes, Stopping cyber attacks
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
ARBITRATION — Arbitrator — Jurisdiction: National Investment Bank Ltd v Eland International (Thailand) Co Ltd, 17 May 2022  EWHC 1168 (Comm);  WLR(D) 222, QBD
CONTEMPT OF COURT — Committal application — Breach of injunction: MBR Acres Ltd v Maher (also known as Thibeault), 16 May 2022  EWHC 1123 (QB);  WLR(D) 214, QBD
COSTS — Discretion of court — Contempt of court: Secretary of State for Transport v Cuciurean, 16 May 2022  EWCA Civ 661;  WLR(D) 211, CA
DEBT — Enforcement — Moratorium: Lees v Kaye, 13 May 2022  EWHC 1151 (QB);  WLR(D) 216, QBD
DEFAMATION — Mode of trial — Court’s discretion: Blake v Fox, 18 May 2022  EWHC 1124 (QB);  WLR(D) 223, QBD
EVIDENCE — Privilege — Litigation privilege: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd, 13 May 2022  EWHC 1136 (Comm);  WLR(D) 208, QBD
HOUSING — Secure tenancy — Claim for possession: R (Kalonga) v Croydon London Borough Council, 17 May 2022  EWCA Civ 670;  WLR(D) 215, CA
IMMIGRATION — Human trafficking — Victim: R (BVN) v Secretary of State for the Home Department, 16 May 2022  EWHC 1159 (Admin);  WLR(D) 219, QBD
JUDICIAL REVIEW — Court’s jurisdiction — Professional membership body: R (Taggart) v Royal College of Surgeons of England, 13 May 2022  EWHC 1141 (Admin);  WLR(D) 217, QBD
NATIONALITY — British citizenship — Deprivation: R (E3) v Secretary of State for the Home Department, 13 May 2022  EWHC 1133 (Admin);  WLR(D) 213, QBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
UK Supreme Court Blog: New Judgment: R v Maughan (Northern Ireland)  UKSC 13, SC(NI)
Law & Religion UK: Religious differences and child custody: TC v Italy (Application no. 54032/18);  ECHR 379, ECtHR
Nearly Legal: And no extensions: R (Kalonga) v Croydon London Borough Council  EWCA Civ 670;  WLR(D) 215, CA
Farrar's Building: A judge has discretion to grant relief from sanctions without a formal application or any application at all, Court of Appeal reaffirms: Park v Hadi  EWCA Civ 581;  WLR(D) 192, CA
New Square Chambers: Legal remedies for victims of investment scams: the decision in Hamblin v World First Ltd  EWHC 2383 (Comm), QBD
St John’s Chambers: Proving missing wills: Cooper v Chapman  EWHC 1000 (Ch), Ch D
Local Government Lawyer: Judge rejects legal challenge to grant of planning permission in dispute over whether committee could impose condition requiring 12 ecological corridor: R (Suliman) v Bournemouth, Christchurch and Poole Council  EWHC 1196 (Admin), QBD
RPC Perspectives: Irrelevant to any issue in the proceedings? High Court orders complete re-review of party’s redactions under disclosure pilot scheme: JSC Commercial Bank Privatbank v Kolomoisky  EWHC 868 (Ch), Ch D
Law Society Gazette: Laurence Fox denied first libel jury trial for a decade: Blake & Ors v Fox (Re Trial by Jury)  EWHC 1124 (QB), QBD
Gobal Freedom of Expression (Columbia University): Hong Kong Journalists Ass’n v. Commissioner of Police: contracts expression: Hong Kong Journalists Association v Commissioner of Police  HKCFI 2882, CFI (Hong Kong)
Free Movement: Home Office has no power to vary High Court bail conditions: R (BVN) v Secretary of State for the Home Department  EWHC 1159 (Admin);  WLR(D) 219, QBD
Other recent publications
‘How the state tried to silence my abusive agent expose’
BBC reporter Daniel De Simone recounts the months-long legal battle between the BBC and the government over publication of his report about an abusive MI5 agent, referred to as X— who still cannot be named, despite remaining a danger to the public.
“The right-wing extremist had used his security service role to terrorise and coerce his British girlfriend, who we are calling Beth. In one incident, which she recorded on her mobile phone, he attacked her with a machete. Evidence we gathered establishes he had also threatened to kill women and children, and was a sexual threat to young girls.”
The full report is available on BBC iPlayer.
Ukraine Advice Project
CJ McKinney of Free Movement explains how a mass mobilisation of UK immigration lawyers is giving pro bono advice directly to people fleeing the war in Ukraine and wanting to come legally to the UK. The organisers were just a conduit to 500+ volunteer barristers, solicitors and OISC advisers who have been giving their time with remarkable generosity. The project has since moved on to a new phase with the DLA Piper pro bono team taking on the day-to-day operations.
Wagatha Christie: what the Vardy v Rooney case can teach you about avoiding libel on social media
In the light of the sensational libel trial occupying court 13 and the public consciousness for the last fortnight, Alexandros Antoniou via Inforrm’s blog explains why this shows that “social media is a high-risk area for defamation claims”.
The ICLR Pupillage Award is still open…
But not for much longer. You have until 31 May 2022 to apply.
If you are taking up pupillage in Autumn 2022, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000. For application form and more details, see our dedicated Pupillage Award page.
Tweet of the week
is a timely reminder, and not just for the employment tribunal. (Yes, Twitter, that means you.)
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.