Weekly Notes: legal news from ICLR — 29 October 2018
This week is Justice Week 2018 and as our latest roundup attests, there have been some big law stories in recent days although respect for the rule of law itself — even among lawmakers — seems to have taken yet another battering.
Justice Week 2018
Justice Week is a new initiative setup by the three legal professional bodies; the Law Society, the Bar Council and the Chartered Institute of Legal Executives (CILEx). The purpose of the week is to boost the profile of justice and the rule of law, helping to place them at the centre stage of public and political debate.
In 2018, Justice Week will run between Monday 29 October and Friday 2 November. The launch event will be held on Monday 29 October at 18:00–20:00 at CMS Cameron McKenna Nabarro Olswang LLP, London EC4N 6AF.
The princess and the plea
It might have been a fairytale wedding, but it was hardly a fairytale divorce. As Polly Morgan wrote on the Transparency Project blog:
Once upon a time, His Royal Highness Louis Xavier Marie Guillauime, Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma, married Tessy Antony, now Her Royal Highness Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma. Unfortunately, they did not live happily ever after, as, after 11 years of marriage and two children, they are now divorcing in the High Court in London.
Morgan was commenting on an interim judgment in the case in which Mr Justice MacDonald had to decide whether or not to grant the princess’s plea for the lifting of reporting restrictions, so that she might be allowed to put her side of the not very fairytale story to the media, to counter some of the gossip and bad press in the Luxembourgeois press. Prince Louis sought an order restricting the media from publishing information about the parties’ financial arrangements. For reasons analysed in Morgan’s post, MacDonald J decided that there should be a reporting restriction order preventing Princess Tessy from publishing information about the family home and the open settlement offer she had made, in addition to agreed restrictions on information about their children: HRH Prince of Luxembourg v HRH Princess of Luxembourg  EWHC 3095 (Fam);  4 WLR 223.
The case has come back into the news again following an article in The Times by barrister Rhiannon Lloyd about how the princess, in addition to all her other woes, has now joined that growing number of private family law case litigants who are representing themselves. In the earlier case just cited she was represented by counsel. Now, for reasons which are not clear, it seems she has decided to act for herself. If it was a question of money, David Burrows points out on his blog (Funding family proceedings for the weaker spouse), she could claim funds from her opponent under section 22Z of the Matrimonial Causes Act 1973. (Section 22ZB sets out the factors about the parties’ circumstances the court must take into account before it makes an order.)
As a litigant in person (LIP) Princess Tessy faces all the same problems as those who are forced into the situation through lack of funds and lack of legal aid, following the coming into force five years ago of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). According to the Times article, “about 80 per cent of family cases at present involve at least one party representing themselves.” Often, it says,
“Litigants in person are unfamiliar with the law, procedure, and how courts function. Consequently hearings go on for longer because judges have to give explanations, or because the litigant is unable to focus on relevant information.”
In her wonderful book, In Your Defence, barrister Sarah Langford gives an idea of what it’s like to be acting for the other side against a LIP:
“I have sympathy for those who choose to represent themselves against a barrister. They are outgunned and they soon know it. Fear or suspicion ensures they often refuse to talk to me before we go into court, whether or not I explain that the judge will want us at least to try to agree the issues that divide us. In court, the judge will attempt to convince them that, no, I have not passed anything to him without giving them a copy; yes, they do have to show me any new evidence they want the judge to see. I have waded through applications and statements with annexes and appendices of lengthy internet printouts, covered with highlighted and bolded text. It is exhausting. I can only imagine how much worse it is for the judges now that over a third of cases going into the family court have no lawyer there at all.”
It’s not suggested that Princess Tessy’s conduct of her own case suffers from any of these issues. The case is still subject to reporting restrictions, but another report in The Times states that she “summarised her case in a closing speech lasting the best part of a hour”. Good for her. She was born a commoner but can apparently keep the title of princess which was granted by royal decree. The Times says she was granted a ‘quickie divorce’ based on the ground of her former prince charming’s ‘unreasonable behaviour’. (That’s not quite how section 1 of the 1973 Act puts it, but it’s the way the media usually report these matters, particularly when celebrities are involved.)
Talking of the media…
Breach of confidence — it’s as easy as ABC
Except that it isn’t quite so simple as some seem to think. In ABC v Telegraph Media Group Ltd  EWCA Civ 2329 the Court of Appeal imposed an injunction to stop the Daily Telegraph revealing the name of a prominent British businessman whose companies had settled claims by five employees of sexual harassment and racial abuse. The settlements were made subject to non-disclosure agreements (NDAs), of which the Daily Telegraph had become aware and the details of which, including the identity of said businessman, they wanted to publish. The employers sought an interim injunction, refused by Haddon-Cave J  EWHC 2177 (QB) but granted by the Court of Appeal — as an temporary measure pending trial of the issues. As well as the employers, at least two of the five complainants opposed publication.
Lots of people were frustrated by what was seen as a gagging order against the media, an attempt to shut down debate about the widespread abuse which was the subject of the #MeToo campaign that began with the revelations about Harvey Weinstein and the film industry in 2017, since boosted by the further wave of indignation over the Presidents’ Club affair and similar issues in the charity sector earlier in 2018. It also brought the whole issue of NDAs and whether they should even be allowed.
Though frowned upon by many as a matter of public policy, purely as a matter of contract law NDAs are perfectly legal and indeed normal (eg to protect commercial information). They give rise to a duty of confidentiality on all the contracting parties, which is not enforceable in respect of any matter subject to the criminal law. (There is also the ‘iniquity exception’ to duties of confidentiality generally, such as those which might otherwise arise under certain forms of legal privilege.) But if another person gets information about something covered by the NDA, can they reveal it? They are not necessarily bound by it, not being a party to the contract, but they may be subject to other duties or laws. And if one of the parties finds out, they can apply for an injunction, as happened here when the businessman or his employers found out that the Daily Telegraph knew about and was planning to publish details covered by the NDAs. An injunction to prevent publication is often referred to as a ‘gagging order’ — as though it took the form of a piece of cloth or strip of tape fixed across someone’s mouth, robbing them of the power of speech.
The question whether as a matter of policy NDAs should be even allowed in cases involving sexual harassment and similar complaints is the subject of a post by Richard Moorhead on his Lawyer Watch blog: In the public interest? NDAs after ABC.
In the public interest? NDAs after ABC
The Court of Appeal’s decision in ABC & others v. Telegraph Media Group Limited  EWCA Civ 2329 prompts me to…
Despite the fact that the injunction imposed by the Court of Appeal was only a temporary one, a number of media and other commentators proposed that it should be breached in the public interest. Jess Phillips MP then suggested she (or someone in her position) might blurt out the mystery businessman’s name under cover of Parliamentary privilege:
A number of people pointed out why this might be wrong, for obvious reasons:
The Secret Barrister used a twitter thread to explain to lay readers the purpose of an interim injunction and why people should await the result of a proper trial of the issues:
Such was the mounting risk of the work of the courts being frustrated, eg by the media, or social media, that the Judiciary Office took the unusual step of issuing a clarification:
There was also a case comment on the two existing judgments on the 5RB media and communications law website:
ABC v Telegraph - CA grants injunction - 5RB
October 24, 2018 Categories: Breach of Confidence, News CA prevents publication of confidential information covered by…
Parliamentary privilege — or You’re So Hain (you probably think this song is about you, don’t you?)
All of that discussion and debate was swept aside the next day, when another person using (or abusing) parliamentary privilege, Lord (Peter) Hain decided to make a statement in the House of Lords saying it was his ‘duty’ to blurt out the name that everyone was agog to discover — Sir Philip Green, of Top Shop fame (for it was he) turned out to be the alleged abuser the subject of the NDAs. Green stoutly denied any wrongdoing in a press release from his companies. Hain was unrepentant, but did not explain why it was necessary for him to anticipate the proper function of the courts.
There is some uncertainty now as to whether the matter of the injunction will ever be properly litigated, Hain having destroyed the subject matter of the claim. The issue would have been whether or not to make the injunction permanent. There is a risk that parliamentarians will think they’ve done their job, simply by frustrating the NDA and the work of the courts, and that they won’t need to sit down like grown-up legislators and think about the matter of in a sensible and comprehensive way. If only all those other knotty legal issues that we entrust to their wisdom were so simple!
It later transpired (thanks to a scoop by Legal Cheek) that Hain is a paid adviser to Gordon Dadds LLP, the solicitors’ firm representing the Daily Telegraph, though he denied being aware of their involvement in the case at the time he made his revelation. (The firm has also denied any impropriety.) Since the firm’s name was on the front page of the published judgment of the Court of Appeal, it seems fair to assume Hain had not bothered to read the judgment before defying its intentions. The rule of law, eh!
Here is a reminder of an earlier occasion when someone in Parliament decided to take the law into their own hands: The Goodwin and Giggs Show: Super-Injunctions discussed by Stephen (formerly Lord Justice) Sedley in the London Review of Books:
LRB · Stephen Sedley · The Goodwin and Giggs Show: Super-Injunctions
For more than three hundred years the UK's constitution has functioned remarkably well on the basis of the historic…
Paul Wragg, via Inforrm’s blog, Lord Hain and Privilege: When power, wealth and abuse combine to subvert the rule of law
David Allen Green, in the FT, The Philip Green case is not as simple as it seems , in which he asks:
what if, say, another peer sought to publicise details that would prejudice a grooming case? What if an MP used his or her privilege to make allegations that led to the collapse of a trial or to identify those who otherwise would have legally protected identities?
That segues rather neatly into the next story…
Contempt of court
Earlier last week about a thousand supporters of Tommy Robinson crowded the streets of London to protest about his trial — or retrial — at the Old Bailey, for contempt of court in filming defendants in breach of reporting restrictions during their trials for sexual offences. At the short hearing the Recorder of London, Judge Nicholas Hilliard QC, referred the case to the Attorney General for further consideration.
Robinson, whose real name is Stephen Yaxley-Lennon, is regarded by his supporters as a free speech martyr, and by everyone else as a man who simply wants to take the law into his own hands, regardless of the risk to the fair conduct of ongoing trials. He has apparently raised a lot of money by crowdfunding his appeal costs, and in other news has recently bought himself a large house costing a lot of money. But his behaviour, though described as contempt of court, seems little different from that of Lord Hain. Each resents the anonymity of those involved in pending or ongoing court proceedings and each arrogates to himself the decision to override it in breach of a court order. Quite a pair.
System in chaos, admits top prosecutor
In an interview in the Observer this weekend, the outgoing Director of Public Prosecutions, Alison Saunders, admitted that the
“criminal justice system is ‘creaking’ and unable to cope with the huge amounts of data being generated by technology”
“the CPS and police were failing to investigate thousands of cases efficiently — from rape to fraud to modern slavery — and were critically short of the skills and resources required to combat crime.”
Saunders revealed that she had lost a third of her workforce as a result of funding cuts of more than 25% since she took over in 2013. Morale was better than it might have been, but she said many cases, eg involving fraud, were simply being ignored “because it takes time and a skilled investigator”.
Her comments drew mixed reactions from lawyers on Twitter, some of whom praised her honesty and did not blame her for funding cuts forced upon her, while others, pointing out that she was about to walk into a decent paid job with a big city firm (Linklaters), felt she could have said more, and sooner.
Max Hill QC will take over as Director of Public Prosecutions.
Media guidance for court staff
This week the Ministry of Justice issued Guidance to staff on supporting media access to courts and tribunals as “part of a wider effort to build stronger working relationships between courts and the press and maintain the principle of open justice as we increasingly digitise court services.”
Given our interest in accurate court coverage we regard the publication of this guidance as a very positive development, and one which should help to prevent some of the problems news reporters (also journalism students, academic researchers and public interest commentators) have faced in recent months when attempting to cover hearings in court. Launching the guidance, the CEO of Her Majesty’s Courts and Tribunals Service (HMCTS), Susan Ackland-Hood reiterated:
“Open justice is a fundamental part of our court system and impartial media reporting of the work of our courts and tribunals is an important way of maintaining public confidence.”
There is a review of the guidance on the Transparency Project blog.
Experience of litigants
Penelope Gibbs of Transform Justice has written about some MOJ research data which she has obtained, by FOI request, which provides a much fuller picture than that revealed in their earlier report on peoples’ experience of the courts. The report, published in June, is here: HMCTS citizen user experience research. According to Gibbs, in an earlier post,
“It said that court users were in the main happy with their court experience. 54% of respondents rated their encounter as ‘very good’ or ‘fairly good’, 60% felt listened to by the courts system, 63% agreed the information they received was good enough, and 77% were kept well informed about what was happening while they were in court.”
But digging down into the data which she has now obtained reveals some interesting and/or concerning findings, according to her latest post, including
- A third of the population know nothing about what goes on in court
- Most of the information people do know comes from watching TV
- Crucially, those who were involved in cases felt being listened to was more important than what the outcome was.
Another point noted was the absence of information about the experience of black, Asian and minority ethnic (BAME) participants. (On this point, however, I wonder if the Lammy Report might shed some light, albeit that it was primarily focused on criminal justice so would not help so well in relation to civil or family cases.)
A rather extraordinary book, The Presidents’ Hammers, all about gavels and their significance as a legal and cultural object, has been reviewed by ICLR’s Paul Magrath on the Bloomsbury Professional Law Blog: Bang to rites: everything you ever wanted to know about gavels but were afraid to ask
WE DO NOT USE GAVELS IN THIS JURISDICTION — I know, I know. But the good news is that @igavels himself has a chapter in the book, as does @otium_Catulle, otherwise known as Isobel Williams, both hammering home that apparently little known fact. The book is eccentric and fascinating, though a bit obsessive — possibly more for the completist than the idle browser.
Bar Pro Bono Unit becomes Advocate
According to its chief executive Jess Campbell, the change of name is intended to make the charity “more accessible for those in need of legal assistance while celebrating the vital contribution volunteer barristers make to access to justice. Our previous name — which used legal Latin — was not user-friendly for most of the people coming to us for help.” The rebrand was funded by the Legal Education Foundation (LEF).
The press release explains:
Advocate (to rhyme with ‘donate’) has an important new strapline; ‘Finding free legal help from barristers’. With the new name and strapline comes a new logo, together making it easier for the public to understand what the charity does. Our new strapline puts the Bar at the heart of our work. The new brand will help us raise more funds to allow us to support more people than ever before. We will continue to offer our core service of matching litigants in person to volunteer barristers, as well as developing new ways of helping people more effectively.
We are Advocate
As of today we are Advocate; the national charity finding free legal help from barristers in any area of law and in any…
Dates and Deadlines
Supreme Court moot finals
Does your graduate law school or university law society have a mooting competition? Would you like to have the opportunity to practice your advocacy in front of a Supreme Court Justice? If so, you can still apply for a place in Supreme Court Moot Finals but the deadline is Wednesday 31st October 2018 at 17:00.
Please note that the Supreme Court Moot Finals are specifically for accredited higher education law programs and student-run societies only. Other organisations including Inns of Court or Chambers (or comparable institutions from other jurisdictions) are able to arrange a corporate hire of the court — please see the court’s Venue Hire section for details.
SPARK21 Annual Conference 2018: Levelling the Playing Field
7 November 2018. The conference is a one-day event with four keynote speakers, a selection of insightful panel discussions and a drinks reception to finish. Kindly hosted by Simmons & Simmons, 1 Ropemaker Street, London EC2Y 9SS.
First International Forum on Online Courts: “The cutting edge of digital reform”
Co-Chaired by Susan Acland-Hood, Chief Executive, HM Courts & Tribunals Service and Professor Richard Susskind OBE FRSE, President of SCL, and hosted by: DLA Piper UK LLP, Mitre House, 160 Aldersgate, London, EC1A 4HT.
Monday 3 and Tuesday 4 December 2018, London. Attendance free.
The first day of the Forum will be devoted to finding out what is actually going on at the cutting edge of court technology around the world.
In the second half of the conference, we will look forward, into the 2020s, and discuss some of the central issues that will face policymakers, judges, technologists, and lawyers, who are planning or introducing online courts.
Full details via SCL.
That’s it for this week. Thanks for reading. Watch this space for updates.
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.