Weekly Notes: legal news from ICLR, 5 December 2022
This week’s roundup of legal news includes open justice, legal professions, judiciary, and intellectual property. Plus recent case law and commentary.
Family courts transparency pilot scheme
Following on from his Transparency Review report, Confidence and Confidentiality: Transparency in the Family Court (Oct 2021), and the subsequent deliberations of the Transparency Implementation Group (TIG) set up to implement its recommendations, the President of the Family Division, Sir Andrew McFarlane has now announced the commencement, early next year, of a pilot scheme involving three courts, under which accredited journalists and legal bloggers will be allowed by default to report family proceedings conducted in private, subject to certain restrictions as to anonymity of children and some other parties. They will no longer need to apply for and be granted leave to report or publish information about the case, as required under the current rules.
The areas that will take part in the Reporting Pilot (RP) are Cardiff, Leeds and Carlisle. The pilot will run for 12 months, from January 2023 to January 2024, and will be subject to independent evaluation.
The aim of the RP is that in the designated courts, accredited journalists and ‘legal bloggers’ (i.e. ‘duly authorised lawyers’ for the purposes of Family Procedure Rules 2010, r.27.11) will be allowed to report on what they see and hear in court (“the transparency principle”).
All reporting will be subject to the principles of protection of the anonymity of any children involved unless the judge orders otherwise (“the anonymity principle”).
Last week Mrs Justice Lieven and barrister Jack Harrison, respectively chair and secretary of the Media Reporting Sub-group of TIG, presented a training session via Teams which was recorded and provides a useful introduction to, and explanation of, the Reporting Pilot.
The BBC headline “Family court reporting to be allowed for first time” is somewhat misleading on this story. Reporters and legal bloggers have been able to report in the past, they just needed permission from the court before doing so; and some restrictions as to names and other details remain. But in its reversal of the existing default, imposed under the Family Procedure Rules, it accords much more closely to the position at common law, established in Scott v Scott  AC 417 and reinforced in many subsequent authorities, and also to what now happens in the Court of Protection (which ran a similar pilot scheme in 2016, before adjusting its Rules in 2017). None of this prevents a court in an individual case making an order restricting or prohibiting reporting or even excluding reporters from the hearing, but such an order would need to be justified as a derogation from the benchmark expectation of public scrutiny.
Slapp down from SRA
The Solicitors’ Regulation Authority (SRA) has issued a stern Warning Notice expressing concern that “solicitors and law firms are pursuing a type of abusive litigation, known as strategic lawsuits against public participation (SLAPPs), on behalf of their clients”. The notice explains that the government has proposed a three-part test to identify a SLAPP claim, which could merit early dismissal:
- That the case relates to a public interest issue.
- That it has some features of an abuse of process.
- That it has insufficient evidence of merit to warrant further judicial consideration.
“Regardless of whether or not a case fulfils all three limbs of the above test, we are able to take action in respect of abusive conduct. SLAPP threats, if they achieve their goals, often do not reach court. Again, this does not prevent us from investigating complaints.
Examples of abusive conduct both before, in the lead up to and during litigation are given in our recent guidance, Conduct in Disputes. This involves the use or threat of litigation for reasons that are not connected to resolving genuine disputes or advancing legal rights. Purposes can include silencing criticism or stalling another process. An aim may often be to use the threat of cost or delay to achieve these outcomes. Our guidance also highlights that it is improper to bring cases or allegations without merit, or to do so in an oppressive, threatening or abusive manner.”
“We expect you to advise clients against pursuing a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal.”
The SRA has also issued guidance for those who might be the target of SLAPPS about what to look out for and how to report any potential misconduct. Examples of abusive conduct or misuse of the legal system include bringing cases or allegations without merit, making unduly aggressive and intimidating threats, or claiming misleading outcomes such as exaggerated cost consequences or imprisonment in a civil claim.
The SRA say they are currently investigating a number of cases where solicitors might be involved in SLAPP cases. For more on this see Legal Futures, Warning for profession, help for public — SRA steps up SLAPPs pressure.
The Bar Standards Board is also reportedly looking into the possibility of issuing similar guidance to barristers: Legal Futures, BSB mulls SLAPPs guidance as Zahawi’s solicitors are referred to SRA.
A group of editors, journalists, lawyers and academics have written an open letter, published in Index on Censorship, to the Lord Chancellor, Dominic Raab MP, urging the government to support the Model UK Anti-SLAPP Law launched by the UK Anti-SLAPP Coalition.
See also: Mafruhdha Miah, RPC Perspectives, The Model Anti-SLAPP Law: an overview
UK joins WIPO
The UK has joined the World Intellectual Property Organization (WIPO) Lex Judgments database to help share best practice around the world. According to the announcement by the Intellectual Property Office (IPO)
“This will open up access to the UK’s most important, high-quality IP judgements, sharing examples of complex case-handling and UK best practice to benefit a global audience.”
Initially, the 100 most notable UK IP cases will be added, with provision for the database to be regularly updated.
“By making information about judicial decisions more accessible across jurisdictions worldwide, the WIPO database aims strengthen and inform courts’ decision-making processes in IP cases. It also helps identify where national approaches to common IP questions converge or contrast, making it a powerful tool for research and policy development and a valuable resource for attorneys.”
Diversity and inclusion
The Bar Council has published an update marking a year since its Race at the Bar report of November 2021. Its Race at the Bar progress report November 2022 provides a summary of race-based activity at the self-employed Bar over the past year.
This interim report summarises responses from 69 chambers and organisations across all circuits representing 4,306 self-employed barristers. The report shows a mixed picture, with some positive developments but also a consciousness that there is “more to be done”.
“On a positive note, there are notable highlights — the impressive collaboration for the pilot of the 10KBI initiative at the Bar, the mentee-to-pupillage conversion rate at Bridging the Bar, and initiatives to watch like the Black Talent Charter initiative.
We also value the work being done to tackle race inequality in the Judiciary, noting the University of Manchester report on Racial Bias and the Bench, and the recent announcement that the Judiciary will introduce training on inappropriate behaviours. But while there is much to celebrate, there is a lot more to do.”
Bridging the Bar and the Judiciary
The Judiciary website provides an update on judicial support for the Bridging the Bar initiative, including collaboration on a pilot work experience programme for aspiring lawyers from statistically under-represented backgrounds at the Bar: Bridging the Bar and the High Court, Court of Appeal and Commercial Court
“In the first week of November 2022, the Court took its first two successful Bridging the Bar candidates and they spent their week closely shadowing the Judicial Assistants who work for Mr Justice Butcher and Mr Justice Picken, affording them the opportunity to gain a keen understanding of the role of both the Judicial Assistants themselves as well as the Commercial Court Judges.”
On the same website you can also learn about District Judge (MC) Briony Clarke’s career journey and her experiences of being a woman in the legal profession: In conversation with District Judge (MC) Briony Clarke
Her interview is part of our ongoing ‘Judge Profile’ series on social media, featuring interviews of judges from a variety of diverse backgrounds.
Modes of address
What do you call a judge? A message from the Lord Chief Justice and the Senior President of Tribunals on 1 December 2022 announced that, from now on, certain categories of judge would simply be addressed as “judge” rather than by the more specific and in some cases gendered titles used previously. The types of judge now to be referred to in a hearing simply as “judge” are:
- Upper Tribunal Judges
- Judges of the Employment Appeal Tribunal
- District Judges
- District Judges (Magistrates Courts)
- First-Tier Tribunal Judges
- Employment Judges
As the message explains, the previous current practice was to address them as ‘Sir/Madam’ or ‘Judge’. So why the change?
“The move away from ‘Sir or Madam’ involves modern and simple terminology, reflecting the important judicial role whilst maintaining the necessary degree of respect. We also hope this change in language will assist litigants in person involved in court and tribunal proceedings.”
The change does not affect the official titles of such judges or how they are addressed in correspondence. For a complete guide, see What do I call the judge? in our Knowledge section.
Other recent items
Concerns raised over function of Online Procedure Rule Committee
Legal blogger Mouse in the Court highlights potential problems with the OPRC which the candidate information pack says will “play a critical role in further developing a digital justice system”. Concerns expressed at various times by judges, MPs and others relate to the committee’s small number of members, the breadth of the workload, the need to avoid conflict with other court rules, and the risk of adding to the existing and sometimes confusing “patchwork” of court rules.
New Digital Regulators on the 2023 Horizon: the Digital Markets Unit and the European Centre for Algorithmic Transparency
Update from David Cran and Chris Ross of Reynolds Porter Chamberlain (via the RPC Perspectives blog) about the regulation of digital markets and of large tech firms designated as having ‘strategic market status’ (SMS).
“Building on the recommendations set out in the Furman report, these reforms establish a new digital markets regulator, the Digital Markets Unit (DMU) within the CMA, able to designate firms as having SMS and require adherence to codes of conduct. The DMU will also have the power to implement pro-competitive interventions (PCIs).”
The post discusses further institutional changes at EU level too, following the EU’s Digital Services Act (DSA) and the Digital Markets Act (DMA) providing a package of European legislation to regulate digital markets.
AI technology and the justice system: Lords committee report
The House of Lords Justice and Home Affairs Committee has considered the use of artificial intelligence technologies in the criminal justice system. It found benefits to using such technology to help apply the law, but also raised concerns about a potential risk to the public’s fundamental human rights and civil liberties. This article summarises the committee’s findings and recommendations, as well as the government’s response.
Prisons will not be reformed until and unless we rethink our views on punishment and retribution
David Allen Green via the Law and Policy Blog discusses penal policy and, prompted by recent plans to expand the prison estate and news that police cells have been requisitioned to make up the shortfall, suggests that “until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative”.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
AIRCRAFT — Carriage by air — Compensation and assistance to passengers: Dore v Easyjet Airline Co Ltd, 23 Nov 2022  EWCA Civ 1553;  WLR(D) 474, CA
CONFLICT OF LAWS — Jurisdiction under European Convention — Exclusive jurisdiction: Tilman SA v Unilever Supply Chain Company AG, 24 Nov 2022 (Case C-358/21); EU:C:2022:923;  WLR(D) 472, ECJ
CONSUMER PROTECTION — Consumer credit — Debtor: Cooper v Freedom Travel Group Ltd, 25 Nov 2022  EWCA Civ 1557;  WLR(D) 467, CA
CONTRACT — Formation — Whether contract concluded: DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd (The Newcastle Express), 24 Nov 2022  EWCA Civ 1555;  WLR(D) 470, CA
DEVOLUTION — Scotland — Devolution issue: In re Scottish Independence Referendum Bill, 23 Nov 2022  UKSC 31;  WLR(D) 460, SC(Sc)
IMMIGRATION — Deportation — Conducive to public good: R (Selevicius) v Secretary of State for the Home Department, 28 Nov 2022  EWHC 3022 (Admin);  WLR(D) 475, KBD (Foster J)
MEDICAL PRACTITIONER — Abortion — Compatibility with Convention rights: R (Crowter) v Secretary of State for Health and Social Care, 25 Nov 2022  EWCA Civ 1559;  WLR(D) 471, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Free Movement: Appeal from the Special Immigration Appeals Commission must be heard in England: Smith v Secretary of State for the Home Department  EWCA Civ 1445;  WLR(D) 426, CA
Free Movement: Procedural errors should be remitted says Court of Appeal: AEB v Secretary of State for the Home Department  EWCA Civ 1512;  WLR(D) 454, CA
Global Freedom of Expression (Columbia University): Sergey Sorokin v. Russia: expands expression: Sorokin v. Russia (Application no. 52808/09), ECtHR
Global Freedom of Expression (Columbia University): M.D. and Others v. Spain: mixed outcome: MD v Spain (Application no. 36584/17), ECtHR
Nearly Legal: Leasehold in the Upper Tribunal — a medley: Eastpoint Block A RTM Company Limited v Akehinde Olufunlola Otubaga  UKUT 319 (LC), UT
Law & Religion UK: Refusal to register Unification Church congregation: Ilyin v Ukraine (Application no. 74852/14);  ECHR 1005, ECtHR
That’s all folks.
Thanks for reading, and thanks for all your toots, tweets, posts 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.