Weekly Notes: legal news from ICLR — 3 December 2018

This week’s roundup of legal news and comment covers media law, costs, family law, sexual harassment, the legal professions and a little bit of Brexit.

Media law

A claim by victims of press intrusion, for judicial review of the government’s decision not to proceed with the second part of the Leveson inquiry into press misconduct, has failed.

On 1 March 2018 the government announced that, after considering responses to a public consultation launched in November 2016, it would not now be proceeding with the second stage of the Leveson Inquiry, and would seek to repeal section 40 of the Crime and Courts Act 2013 (which required publishers who did not sign up to an approved regulator to fund litigation claims against them, whether or not they succeeded): see Transparency Project, Press regulation: the end of the road for Leveson reforms.

In reaching its decision the government rejected the recommendation of Sir Brian Leveson himself that Part 2 of the Inquiry should proceed, in accordance with the ‘legitimate expectation’ of the phone-hacking victims and others.

In R (Jefferies & ors) v Secretary of State for the Home Department [2018] EWHC 3239 (Admin) the Divisional Court (part of the Queen’s Bench Division of the High Court) rejected the claim for judicial review of the government’s decision, based on their ‘legitimate expectation’, of Christopher Jefferies, Dr Gerry and Kate McCann, and Jacqui Hames. All of them, the court recognised,

“have in the past variously been the victims of outrageous and unlawful treatment on the part of certain elements of the press. The distress to them has been immeasurable. It is felt by them to this day.”

All of them participated in Part 1 of the Leveson Inquiry, but the evidence they gave was limited by the fact that there were pending criminal proceedings, the conclusion of which would permit the continuation of the inquiry in Part 2, when it was expected that they would give fuller evidence.

There were various public statements made in Parliament and elsewhere by the then Prime Minister, David Cameron, and Deputy Prime Minister, Nick Clegg, during the Coalition Government that had set up the inquiry, to the effect that they intended it to continue to Part 2. But the claimants based their legitimate expectation on a specific statement, made by Cameron in a private meeting with the campaign group Hacked Off on 21 November 2012, which was said to amount to a promise. It was the failure of the successor government of Prime Minister Theresa May, in 2018, to take that promise into account in considering whether or not to continue the Leveson Inquiry, that was said to invalidate their decision. The claimants sought an order quashing the decision and forcing the government to reconsider the matter in the light of the promise which David Cameron was said to have made.

In public or administrative law, a legitimate expectation is a clear, unambiguous and unqualified assurance, understood by those to whom it is given, that a particular course of action will be taken or a particular procedure will be followed. It is not essential that any person to whom the promise is made should have relied upon it to their detriment, but it certainly helps. Bitter disappointment is not enough, however.

In this case, the court said, the circumstances were not such as to give rise to a legitimate expectation. It was a private meeting, intended to enable the participants to exchange views frankly, and conducted on the basis that “what is said in this room stays in this room”. The concept of legitimate expectation was rooted in the principles of fairness, in the public law sense, and it would not be fair for a statement made in such circumstances to be permitted to ground a claim for judicial review. For these and other reasons, the court dismissed the claim.

Hacked Off responded in a press release entitled Victims vow to fight on after Leveson Part Two judicial review finds in favour of government

“Despite finding that the Government had met its narrow legal obligations in cancelling the Inquiry, the judgment was nonetheless clear that former Prime Minister David Cameron had repeatedly stated his intention to finish it.”

The claimant Jacqui Hames said

“The Government may have met its narrow legal obligations in how it cancelled the inquiry, but it cannot hide behind today’s ruling to justify its decision to do so as reasonable, proportionate or in the public interest. It has discarded the personal commitments to complete the Inquiry and obtain justice which were made to the families affected by the Hillsborough disaster, the family of murder victim Daniel Morgan, and ordinary people like myself who have been caught up in press and police corruption. How can the public trust the promises made by a Prime Minister again?”

Baroness Warsi suggested that the “daily torrent of religious bigotry” and Islamophobia in the press could have been addressed in Part 2, but:

“In failing to go ahead with Part Two of the Inquiry, the Government has signalled that it is prepared to stand by as some of our fellow citizens are regularly subjected to demonising and dehumanising false smears in the pages of some newspapers that leads to hostility on our streets.”

The Lord Chancellor and Secretary of State for Justice, David Gauke, made a written ministerial statement explaining how section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), under which the winning lawyer’s success fee would no longer be recoverable from the losing party, had not been brought into effect in relation to media claims such as defamation and privacy cases pending the outcome of the Leveson Inquiry. In view of the fact that the Leveson Inquiry was being discontinued, the government now proposed to commence section 44 of LASPO in relation to such cases. However, after the event (ATE) insurance premiums would remain recoverable for these cases. As Gauke explained:

This approach — of abolishing recoverability of the conditional fee agreement success fee, but retaining it for the after the event insurance premium — will protect access to justice, since parties with good cases can still benefit from recoverable after the event insurance in respect of adverse costs; after the event insurance discourages weaker cases as these are unlikely to be insured. This provision will come into force for new cases on 6 April 2019.

The decision is intended to address the breach of article 10 (freedom of expression) rights found by the European Court of Human Rights in MGN v United Kingdom (2011) 53 EHRR 5. In the MGN case, the court concluded that the obligation for the defendant to pay a 100% ‘success fee’ to the claimant could be disproportionate, and that the conditional fee agreements regime was therefore in breach of the defendant publisher’s rights under article 10 of the European Convention on Human Rights.

The Government has also published ‘Costs protection in defamation and privacy claims: the Government’s proposals’, its response to a 2013 consultation, which had heard concerns that abolishing success fee recovery could have a chilling effect on investigative journalism.

There is a useful explainer on Inforrm’s blog from media lawyers Brett Wilson LLP, which also comments with some asperity on the likely effect of the changes:

“The press will no doubt hail today’s announcement as a victory for freedom of expression and one in the eye for fat cat lawyers. The truth is that it is a victory for the press and one in the eye for victims of press abuse. … The clear loser here is … the little man who has been wronged by the press.”

Family law

The week began with one of those rather half-baked, half-biased newspaper exposures on an aspect of family law which is poorly understood, even (or especially) by its most vociferous critics. What we now know as the Sammy Woodhouse case appeared first in the form of a report in The Times by Andrew Norfolk headlined Jailed rapist given chance to see his victim’s child.

As Lucy Reed, commenting on the Transparency Project, explained, “this is a sensationalised headline and article which ignores some important facts and legal context.” Though couched in loaded language about Pakistani grooming gangs, rapists, and the failures of social workers, the real point of the story was that paragraph 3.1 of Practice Direction 12C to the Family Procedure Rules 2010

“makes it mandatory for a local authority applying for care orders (as it appears this local authority was) to formally notify a father of the existence of proceedings — even one who was not married to the mother and has no parental responsibility — and even one who is as dangerous and unpleasant as this one appears to have been.”

Despite the mandatory nature of the order, the article seemed to be suggesting that the local authority had acted ‘perversely’ in notifying the father, while the mother was said to be “extremely distressed” to learn that “the man who groomed, raped and made her pregnant at the age of 15 was being encouraged to stake a claim in her son’s future”. There is scant consideration of the interests of the child in the article, whose interests should be paramount under existing legislation. But clearly the situation is problematic and the story was worth telling, albeit perhaps not in the selective way that Norfolk ‘angled’ it. Various prominent persons, including the Victim’s Commissioner and the shadow minister for crime and policing came forward to condemn the law. But as Reed explains, “what this boils down to is a story about an unnamed local authority which has complied with court rules to give notice to a parent of the fact their child was subject to proceedings.”

Later the same day, the mother revealed her identity as Sammy Woodhouse, a victim of the Rotherham child exploitation scandal, and the instigator of a campaign to change the law. Though it may contain a kernel of sensible law reform, the campaign has attracted some unhelpful and unsavoury supporters. As the Transparency Project summed it up in a later post,

“What was initially a campaign (we thought) to change the law to prevent a father without [parental responsibility] and who had fathered a child through rape from being notified of the existence of care proceedings, has become a campaign for any father convicted of rape to be stripped of all his parental rights, contact, rights to participate in proceedings or even to be notified of them — regardless of the facts of the case, including whether or not he has parental responsibility, has an established relationship with the child, and regardless of the child’s wishes (we’re not quite sure if Sammy herself is espousing reforms this broad but certainly others are).”

The story is still moving rapidly so expect updates, including further posts on the Transparency Project website. Other mothers are now coming forward, including one who approached the BBC’s Victoria Derbyshire programme. Louise Haigh, the shadow crime and policing minister, wrote a piece in the Guardian under the title Rapist fathers should not have rights over their victims’ children. Meanwhile, in Byline, Brian Cathcart explains why he thinks Norfolk is guilty of More bad journalism.

Open justice

A High Court judge has recently said that when the Court of Protection sits in open court, so that members of the public can attend if they wish, the barristers should all be wearing wigs and gowns as they do in most other courts, to send a clear message about transparency and open justice.

The suggestion by Hayden J, in an interview in the Law Society Gazette, has sparked renewed discussion about the role of wigs and gowns in the administration of justice, and in particular whether they are appropriate in the Court of Protection, which deals with the medical, welfare and financial affairs of adults who lack the mental capacity to do so. Suffice it to say, the comments on legal Twitter were not generally supportive of the idea.

A post on the Transparency Project website explained the background and rounded up some of the comments: Robed in confusion — are wigs and gowns a symbol of open justice?

Brexit

There’s not been much cheerful news on the Brexit front this week but the House of Commons Library’s Brexit Roadmap is certainly a thing of joy, so long as you don’t think too hard about the implications of what it describes. Under the title Brexit and the “meaningful vote”: The Final Countdown? and a picture of an ominously vacant lower house, it has produced this glorious technicolor (and in many ways quite cunning) plan: enjoy.

As the briefing explains,

Next week, the House of Commons will begin five days of debate on the negotiated withdrawal agreement and the future framework for relations between the UK and the EU. The debates will conclude with what is being called “the meaningful vote”.

It goes on to consider the following questions:

  • What form will the debate take?
  • What will happen on the first day of the debate?
  • What happens if the Commons backs the deal?
  • And what if the Commons rejects the deal?
  • Could the Government make a second attempt at the “meaningful vote”?

There is also a useful summary by Obiter J on the Law and Lawyers blog, of recent Brexit news, including the hopeful remarks of European Council President Donald Tusk at the recent G20 Summit in Argentina, to the effect that, should no deal be possible or acceptable, the EU is open to the suggestion of a no-Brexit scenario.

Legal professions

It was the best of times, it was the worst of times. It was a tale of two legal systems.

Reading the speech given by Lord Chancellor David Gauke at the launch on 30 November of TheCityUK’s 2018 glossy brochure about the UK’s booming legal services industry, you could be forgiven for thinking that all could not be rosier in the legal system. Legal services contribute £26 bn per year to the UK economy, and the “UK continues to be the world leader for international legal services and dispute resolution”.

The report itself highlights the fact that the English courts remain a magnet for foreign litigants, with 78% of cases in the Commercial Court being international in nature. English law is used in 40% of all global corporate arbitrations. There are over 200 foreign law firms with offices in the UK, and the revenue of the UK’s largest 100 law firms has grown by 10% to £24.2 bn.

But the report says nothing — not a word — about legal aid, or pro bono, or the work of barristers and solicitors in those rather less glamorous family and criminal courts where the fees taken home by lawyers are unlikely to be contributing much towards the £4.4 bn legal services trade surplus (double what it was ten years ago). Those run down high street shops aren’t part of the international forum-shopping mall the government wants to promote as part of its union-jacked up “Legal Services are GREAT” campaign.

It’s a dickens of a disparity. But all is not lost, because where TheCityUK sees only what it wants to see, there are others — the Secret Barrister, the Justice Gap, Transform Justice, and Emily Dugan at BuzzFeed News — who are prepared to reveal the true picture of a legal system in crisis, a system that is failing the citizens of this country, a system that appears to regard civil legal aid as essentially ‘discretionary’ (in the words of Lord Sumption) and the participation of lawyers as essentially optional; and criminal representation as a ‘nice to have’ (but often at less than the minimum wage). Perhaps when TheCityUK decides to include these parts of the legal services industry in its survey, we will get a truer picture of how the sector works, and how much (or how little) some of its members are paid.

Meanwhile, by way of a supplement, here is some further reading:

The #MeToo movement has prompted women at the Bar to speak out about sexual harassment in their profession, and to form a movement dedicated to calling it out and raising awareness, with the Behind The Gown campaign. Last week, Professor Jo Delahunty QC dedicated one of her current series of lectures on the family justice system at Gresham College to the topic of “Sexual Harassment at the Bar”. You can download both the lecture notes and the presentation in PDF form from the Gresham College website. There is a report of the lecture by Dan Bindman in Legal Futures, Sexual harassment at Bar still a “serious problem”

Delahunty has also written about the subject in an article in the Guardian, Fear stops reporting of sexual harassment at the bar, says top QC.

ICLR news

Daniel Hoadley of ICLR, and Sam Herbert, of 67 Bricks, the developers who built our ICLR.3 platform, were among the speakers at the ConTech Live conference, on 29 November 2018. The theme of the conference was “Transforming content through data science, AI and emerging technologies”. Paul Magrath and Paul Hastings also went along from ICLR, to see what they could learn about the interaction of content (information, data) and technology, and how it might help ICLR improve our product and services. A more detailed writeup will follow in due course.

Dates and Deadlines

Christmas and New Year closures

Crown Courts, Magistrates’ Courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and Tribunals will close over the Christmas period on:

  • Monday 24 December 2018
  • Tuesday 25 December 2018
  • Wednesday 26 December 2018
  • Tuesday 1 January 2019

Some emergency courts may operate over the holiday. Please check before travelling. See court and tribunal finder for details.

Tweet of the Week

is actually two tweets involving a joke about bundles. (Sorry.)

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.

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.