Weekly Notes: legal news from ICLR, 5 May 2023
This fortnight’s bank holidays special roundup includes open justice, family and employment law, artificial intelligence, and the legal profession. Plus — to crown it all — a generous helping of recent cases and commentary.
Open justice
Documentary transparency
The UK Supreme Court, which already leads the way in providing public access to its workings, has indicated that it plans to increase that transparency even further by publishing court documents online alongside live streaming of its hearings. The announcement, reported in Legal Futures, was made by Lord Briggs in the when speaking at the Westminster Legal Policy Forum conference on court modernisation last week. The move would compensate for the way transparency was “diminished by digitalisation and modernisation primarily designed to make litigation quicker and more affordable” since most court documents were now “pre-read” by judges, counsel’s submissions were mainly in writing, and the move to online procedures meant that “oral processes will not grow but shrink further”.
We hope Lord Briggs’ address will soon be published on speeches page of the Supreme Court website, since judges’ speeches and lectures present another way of promoting legal education and nourishing the marketplace of ideas. In the meantime, his remarks have been widely welcomed, including by David Allen Green, on the Law and Policy Blog: Hurrah for this latest move towards transparency of the UK Supreme Court
The image above is from the exterior of the UK Supreme Court building in Parliament Sq, London. It shows Lady Jane Grey being offered the Crown of England by the Duke of Northumberland. (Perhaps not the most auspicious choice to mark this weekend’s events.)
Family court transparency
The family court reporting pilot was launched by the President of the Family Division, Sir Andrew McFarlane, on 30 January 2023 in Cardiff, Carlisle, and Leeds. Suitable cases can be attended and reported on by accredited journalists and authorised lawyers (“legal bloggers”) subject to transparency orders issued by the courts concerned.
Its progress has been reviewed by the President’s Transparency Implementation Group (TIG), working in conjunction with the Designated Family Judges, Transparency Liaison Judges, and local pilot liaisons. The review process has highlighted further issues that require guidance, which has now been issued in the form of a bulletin (Bulletin 1: April 2023).
The scope of the pilot has also been extended. From 15 May, journalist and legal bloggers will be allowed to report on private law hearings in the three Reporting Pilot Courts, Cardiff, Carlisle and Leeds. The Reporting Pilot that began on 30 January in public law is to be extended, so that a reporter who attends a hearing in a private law case — typically disputes between separated parents about child arrangements — can write on it, subject to a Transparency Order. For more on this, see Transparency Project blog: Reporting Pilot extended to private law hearings (and other TIG news)
And just to explain some of the terminology (and the differences) around the various “transparency pilots” (chocks away!), see also: Transparency in the Family Courts and the Court of Protection: what are the differences?
Employment law
Striking disputes
NHS workers nursing a grievance over their low pay and poor working conditions have struck for a better deal. The Royal College of Nursing was to have gone on strike from from 8 pm on Sunday 30th April until 8pm on Tuesday 2nd May 2023. But there was a legal challenge from the Secretary of State for Health, Steve Barclay MP, initially seeking an injunction to prevent the strike altogether, on the ground that it was due to extend beyond the lawful period “beginning with the date of the ballot, of six months” under section 234(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992 . That in the end does not seem to have been pursued, accepting that the strike may have been lawful up to the Monday 1 May.
However, the RCN made a poor impression by not attending the hearing on on Thursday 27 April, at the end of which Linden J granted an injunction with the effect that the planned RCN strike on Tuesday 2nd May was ruled unlawful, although the wider point as to the legality of the strike as a whole does not appear to have been pursued. A detailed analysis of the relevant provisions of TULRCA (if you can call it that) is provided by Ross Fletcher on the UK Labour Law blog: The Legality of the Royal College of Nursing April — May 2023 Strike.
AI roundup
CMA launches initial review of artificial intelligence models
The Competition and Markets Authority (CMA) is opening an initial review of competition and consumer protection considerations in the development and use of AI foundation models. To ensure that innovation in AI continues in a way that benefits consumers, businesses and the UK economy, the government has asked regulators, such as the CMA, to think about how the innovative development and deployment of AI can be supported against five overarching principles: safety, security and robustness; appropriate transparency and explainability; fairness; accountability and governance; and contestability and redress. (See also next item)
Generative AI and intellectual property rights — the UK government’s position
The Intellectual Property Office (IPO)aims to produce a code of practice by the summer to provide guidance to support AI firms in accessing copyright protected works as an input to their models. That’s because, as Helen Armstrong, Partner, Jani Ihalainen, Associate and Joshy Thomas, Knowledge Lawyer from Reynolds Porter Chamberlain explain on RPC Perspectives IP Hub, much of the data that large language models (LLMs) are being trained on using machine learning technique is likely to be protected by IP rights such as copyright and database rights. It is also possible that training data containing protected works will not only be used for machine learning but may also be part of the output.
US Supreme Court rejects computer scientist’s lawsuit over AI-generated inventions
Reuters reports that the U.S. Supreme Court has declined to hear a challenge by computer scientist Stephen Thaler to the U.S. Patent and Trademark Office’s refusal to issue patents for inventions his artificial intelligence system created. Lower courts have ruled that patents can be issued only to human inventors and that his AI system could not be considered the legal creator of two inventions that he has said it generated.
The UK Supreme Court has, however, agreed to consider the matter, the Court of Appeal in our own jurisdiction having rejected a similar claim: see Thaler v Comptroller General of Patents, Designs And Trade Marks [2021] EWCA Civ 1374; [2022] Bus LR 375.
How can artificial intelligence help us find new case law?
Well now. This is about ICLR’s pioneering case search tool, Case Genie, that we are currently advertising with a campaign of tube ads, media and social media. You’ll see the posters later this month. There’s a short video presentation to go with it, using some beautifully shot images of Lincoln’s Inn library. In the meantime, this blog post explains the background to the development of Case Genie. And you can find out more about it on our Case Genie Information Page. (If you’re interested, you can sign up for a trial and see for yourself how it might be able to help you.)
Legal profession
Call for evidence on NDAs
The Legal Services Board (LSB) has launched a call for evidence on misuse of non-disclosure agreements (NDAs) and the role of lawyers, with a view to seeing how regulation might support professionals in meeting their ethical obligations. According to its announcement:
“While the majority of NDAs are lawful and can legitimately be used to protect the confidentiality of sensitive business ideas and information, concerns are mounting about their misuse to conceal wrongdoing. For example, the #MeToo movement has raised public awareness of the misuse of NDAs to silence victims of workplace misconduct. Media coverage has also highlighted patterns of misuse in sectors as diverse as the arts, further education, policing and advertising.
The LSB seeks to understand the scale, extent, and nature of misuse, consider why some legal professionals may fail to adhere to their professional ethical obligations when engaged with the misuse of NDAs, and explore the role regulation can play in making sure NDAs are only ever used appropriately.”
The call for evidence runs from 2 May 2023 to 14 July 2023.
The Abbey School, Reading hosts ‘100 Years of Women at the Bar’
In a bid to boost interest in legal careers, the Abbey School in Reading recently hosted the landmark pop-up exhibition ‘100 Years of Women at the Bar’ and staged a showcase evening for young people in the town to promote a career in the legal profession.
According to a report by the judicial office, the exhibition in March 2023 had previously been on display at the Royal Courts of Justice and the Supreme Court. It featured women judges and pioneers in the legal field and celebrated the centenary of Dr Ivy Williams’ as the first woman to be called to the English Bar in 1922.
A private launch event was attended by over 400 students and parents from six schools. It was addressed by keynote speakers including Court of Appeal Judge Lady Justice Geraldine Andrews DBE, Founder of the First Hundred Years Project Dana Denis-Smith, and Barrister Samantha Woodham. Students participated in three theatrical performances inspired by the true stories of legal pioneers featured in the 100 Years exhibition — Helena Normanton, Dame Linda Dobbs and Tribunal Judge Thaira Bibi.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CHILDREN — Care proceedings — Fact finding hearing: In re J (Children), 28 Apr 2023 [2023] EWCA Civ 465; [2023] WLR(D) 201, CA
CHILDREN — Care proceedings — Threshold criteria: In re A, B and C (Fact-Finding: Gonorrhoea), 26 Apr 2023 [2023] EWCA Civ 437; [2023] WLR(D) 197, CA
CONFIDENTIAL INFORMATION — Breach of confidence — Injunction: Armstrong Watson LLP v Persons Unknown, 24 Apr 2023 [2023] EWHC 921 (KB), KBD
HABEAS CORPUS — Jurisdiction — Control: C3 v Secretary of State for Foreign, Commonwealth and Development Affairs, 25 Apr 2023 [2023] EWCA Civ 444; [2023] WLR(D) 196, CA
HOUSING — Homeless persons — Review of local housing authority decision: Moge v Ealing London Borough Council, 27 Apr 2023 [2023] EWCA Civ 464; [2023] WLR(D) 198, CA
IMMIGRATION — Leave to remain — Domestic violence: R (SWP) v Secretary of State for the Home Department, 25 Apr 2023 [2023] EWCA Civ 439; [2023] WLR(D) 190, CA
INTELLECTUAL PROPERTY — Trademark — Infringement: Match Group LLC v Muzmatch Ltd, 27 Apr 2023 [2023] EWCA Civ 454; [2023] WLR(D) 199, CA
LANDLORD AND TENANT — Lease — Tenant’s right to acquire new lease: Peterson v Howard de Walden Estates Ltd, 28 Apr 2023 [2023] EWHC 929 (KB); [2023] WLR(D) 203, KBD
PLANNING — Enforcement notice — Validity: R (Devonhurst Investments Ltd) v Luton Borough Council, 28 Apr 2023 [2023] EWHC 978 (Admin); [2023] WLR(D) 202, KBD
TRADE MARK — European Union trade mark — Proprietor’s rights: Lännen MCE Oy v Berky GmbH, 27 Apr 2023 (Case C-104/22); EU:C:2023:343; [2023] WLR(D) 204, ECJ
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
12 King’s Bench Walk — Costs Litigation Blog: TRX v Southampton Football Club [2022] EWHC 3992 (KB): Retainers, lawful CFAs and Rule 47.20: TRX v Southampton Football Club [2022] EWHC 3392 (KB), KBD
3PB chambers: McDonald v Excalibur & Keswick Groundworks Ltd [2023] EWCA Civ 18; [2023] WLR(D) 29, CA
Free Movement: High Court rejects challenge by Afghan families to hotel move: R (HZ) v Secretary of State for the Home Department [2023] EWHC 660 (Admin); [2023] WLR(D) 162, KBD
Free Movement: “Model example” of Article 8 balancing exercise in High Court extradition case: Dobrowolski v District Court in Bidgoszcz, Poland [2023] EWHC 763 (Admin), KBD
Gatehouse Chambers: Unfair prejudice claim in a long-standing rags to riches family dispute has failed: Pickering v Hughes [2022] EWHC 3359 (Ch), Ch D
Inforrm’s blog: Leave to Remain? Data Protection’s ʻImmigration Exemptionʼ Returns to Court: R (the3million Ltd) v Secretary of State for the Home Department [2023] EWHC 713 (Admin); [2023] WLR(D) 158, KBD
Law & Religion Australia: Liability of a bishop for abuse by clergy- on appeal: DP (a pseudonym) v Bird [2023] VSCA 66, CA (Victoria)
Local Government Lawyer: Court of Appeal quashes council direction requiring travellers to leave site: R (SO) v Thanet District Council [2023] EWCA Civ 398, CA
Local Government Lawyer: Implementation of planning permission: R (Atwill) v New Forest National Park Authority [2023] EWHC 625 (Admin); [2023] WLR(D) 143, KBD
Mills & Reeve: The Tate Modern case: are human rights relevant to property law cases between private parties? Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339; [2023] 2 All ER 1; [2023] WLR(D) 53; The Times, 6 February 2023, SC(E)
Gatehouse Chambers: A Master’s decision to order disclosure of internal non-contemporaneous documents upheld on appeal (Re Scherbakov (deceased)): In re Estate of Scherbakov [2023] EWHC 440 (Ch), Ch D
Gatehouse chambers: Raising unfairness in an unfair way: Goldhill Finance Ltd v Smyth [2023] EWHC 362 (KB), KBD
Ropewalk Chambers: The High Court Considers the Guidelines for Diagnosis and Quantification of Military Noise-Induced Hearing Loss: Barry v Ministry of Defence [2023] EWHC 459 (KB), KBD
RPC Perspectives: Tax Tribunal allows appeal and confirms interim dividend was not “due and payable”: Gould (Peter) v Revenue and Customs Comrs [2022] UKFTT 431 (TC), FTT (TC)
RPC Perspectives: Media and Communications law update: 12 April 2023: Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331; [2023] WLR(D) 166, CA
And finally…
Tweet of the weekend
is from a King’s Counsel on the King’s Coronation:
Uneasy lies the head that wears a crown, said Shakespeare (H IV pt II) so we’d recommend he takes it off at night. (A plain old fashioned night cap should be fine.) As for that throne, it looks like an old school desk…
That’s enough seditious whimsy. Enjoy the bank holiday weekend. We are taking a short break so the next roundup will appear in the week of 15 May.
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.
