Weekly Notes: legal news from ICLR – 20 February 2015
Posted on 22nd Feb 2015 in Weekly Notes
This week’s roundup of legal news from home and abroad includes a plan for online courts, a Lord Chief Justice sounding a note of pessimism, a national newspaper telegraphing its own decline, and a Taylor hoping to make a Swift buck.
UPDATED 24 February: now with Law (and injustice) from around the world
Court in the Web
Is plan for internet litigation mere castle on a cloud?
A report by a working group of the independent Civil Justice Council (CJC) led by Professor Richard Susskind (see video link above) has called for HM Courts and Tribunals Service (HMCTS) to set up a state-run Online Dispute Resolution (ODR) system, to be known as HM Online Court (HMOC), Catherine Baksi of the Solicitors Journal reports. The system would be similar to that used by e-Bay to resolve customer issues, apparently.
John Hyde in the Law Society Gazette pointed out that this would inevitably lead to a decline in demand for solicitors.
Launching the report, Prof Susskind said:
‘This report is not suggesting improvements to the existing system. It is calling for a radical and fundamental change in the way that our court system deals with low-value civil claims.
‘Online dispute resolution is not science fiction. There are examples from around the world that clearly demonstrate its value and future potential, not least to litigants in person.’
The report proposed a three-tier system, involving (i) online evaluation, (ii) negotiation, with facilitators (like mediation) and (iii), for otherwise unresolved cases, participation of online judges deciding on the basis of written submissions.
The proposals were welcomed in some quarters, on grounds of low costs and simplicity of access for non lawyers; but criticised by others, who feared that any breakdown in the process would simply lead to more litigation, a bit like the way arbitration rulings are routinely appealed to the High Court under sections 67-73 of the Arbitration Act 1996. There was also the danger, as with all government IT projects, of it simply running over budget and over schedule.
But, as Lord Dyson MR, who appeared alongside Prof Susskind at the press conference to announce the report, agreed, fewer lawyers would be involved in lower-value cases in future.
‘Lawyers have been eased out from considerable areas in which they used to operate,’ he said. ‘The growth of litigants in person is just another example of that.’
However, in his introduction to the report, he pointed out that
At a time of major pressure on public spending and high legal costs, ODR offers a major opportunity to help many people for whom public funding to resolve disputes is not available, or for whom legal costs are prohibitive.
The Bar Council, sounding a note of caution, was quoted (in the Gazette) as saying
Making processes easier, more accessible, and simpler are laudable objectives. But we must be wary of creating a system which is over-simplified and does not do justice to the circumstances of particular cases.
The Law Society added that
Proper consultation and proper investment would be essential.’
David Burrows explains how it would work and considers its potential for dealing with family disputes on his own blog, DB Family Law, in a piece entitled Online Dispute Resolution: Can it work for family?
The journalist Peter Oborne (right) has form for sniffing out phoneyism and hypocrisy. He recently declared the forthcoming Global Law Summit to be a “sordid, disgusting and debased” celebration of venality and “moral hypocrisy” from a government which has “launched a systematic attack on the legal aid system which gives poor people access to the justice system”.
He has written a book entitled The Rise of Political Lying (cited by the Independent as one of the Ten Best Political Books) in which he catalogued the ominous ubiquity of mendacity in the democratic discourse – on all sides – during the Major and Blair years (a proposition few would now challenge).
And this week he turned on his own employers, the Daily Telegraph, of which until recently he was chief political commentator. In a piece for Open Democracy entitled Why I have resigned from the Telegraph, he set out his reasons for resigning that post, and they were not pretty. Among other complaints, including its decimation of the foreign desk, the shedding of so many good writers and editors and the baleful influence of “click culture”, he accused the paper of suppressing critical coverage of HSBC because the bank was a major advertiser:
The coverage of HSBC in Britain’s Telegraph is a fraud on its readers. If major newspapers allow corporations to influence their content for fear of losing advertising revenue, democracy itself is in peril.
The Telegraph has responded, first by asserting that Oborne’s piece was full of inaccuracies (but without identifying any of those inaccuracies); then by publishing a desperate editorial “leader” trumpeting its values as a beacon of independent and fearless news coverage.
The opening paragraph, or salvo, reads a bit like one of those hysterically furious news announcements from unsmiling North Korea:
This newspaper makes no apology for the way in which it has covered the HSBC group and the allegations of wrongdoing by its Swiss subsidiary, allegations that have been so enthusiastically promoted by the BBC, the Guardian and their ideological soulmates in the Labour Party.
(I almost expected a bit about the running dogs in the NUJ.)
Finally it moved from the defensive to the offensive, lashing out at its rival newspapers, alleging that they too allowed editorial content to be influenced by the wishes of major advertisers, in the case of the Guardian by its major advertiser Apple Inc, and, in the case of News International, that commercial pressures had led to the stress-related suicides of two employees. Both articles were bylined “By Daily Telegraph Reporter”, as if there was only one of them left (perhaps there is, and too ashamed to be named). Amidst the shocked and outraged response to the latter piece, from those who still hoped for something better from the once-brave broadsheet, was a sarcastic tweet from the Sunday Sport, complaining that the Telegraph was now muscling in on their patch, ie the gutter.
From a legal perspective, in case you were wondering why this story is being repeated here, there are two issues.
First, can we trust the Telegraph’s coverage of legal stories? Up to a point, Lord Chancellor. In its favour, as well as Oborne’s recent fusillade against the Global Law Summit, it has in the past run some excellent critical pieces by Jenny McCartney such as this, from last May: Legal aid folly jeopardises justice. But it seems the Telegraph sacked her the following month (see Breitbart).
More ominously, in the wake of Oborne’s j’accuse, Joshua Rozenberg went public with the reason why he had resigned as the Telegraph’s legal commentator back in 2007 – because they’d “sexed up” one of his stories, by adding a comment which he hadn’t made and wasn’t true, and it prompted a judicial complaint (see UK Human Rights blog.)
That leaves Christopher Booker, whose furious denunciations of the family justice system, with its secret courts and baby-snatching care workers, have been the subject of calmer and more accurate consideration elsewhere on this blog.
Secondly, this tale about the Telegraph sounds a cautionary note in the context of the right to freedom of expression, which includes a right to be expressed to, of access to information, and a freedom from censorship. If news reporters’ work is being suppressed, as is alleged, that is a bad thing for democracy and our collective right to freedom of expression. It is just as well we don’t have monopolised state control of the media – indeed the media now includes so much that cannot be controlled by the state, much as they’d like to – such that hopefully it is almost impossible to bury bad news these days. But that doesn’t stop people, with persuasive cash on their side, from trying.
See also, in the Spectator: Peter Oborne has performed a great public service today
Lawyers this time: should client reviews be subject to defamation law?
A member of the Legal Services Consumer Panel, Michelle Goddard, went onto its blog this week to express her concern that lawyers are resorting to threats of defamation proceedings to curb the effect of negative client reviews on comparison websites. She said:
Ultimately the system needs to allow consumers to fairly share both their positive and negative experiences, but I’m concerned that the legal techniques that some lawyers now seem to be using, by increasingly threatening legal action for defamation in response to negative reviews, are likely to muffle the already muted consumer voice.
Her point is that the lawyers who are doing this would not in fact meet the threshold of serious harm now imposed by the Defamation Act 2013, so their threats of legal action are purely intimidatory bluster.
This prompted a mixed response from lawyers. Some questioned what evidence Goddard or the LSCP had of the phenomenon she was describing, since she doesn’t provide any. Others wondered what she meant by “comparison sites”, since she doesn’t identify any. The image conjured up by this expression is something like Trip Advisor, where hotels and restaurants are reviewed by customers, and as well as positive and negative comments, there are what amount to crowd-sourced factoids about sightseeing and transport links. And indeed, she does allude to that site:
Experience in other markets such as Trip Advisor reveals that consumers post negative reviews more infrequently with the majority normally overwhelmingly positive, an experience reflected in legal services.
However, that “reflected in legal services” isn’t backed up with any examples. And evenly balanced as Trip Advisor might be, or generally positive as might be something like VouchedFor (which was set up for financial advisers but now covers solicitors) the same cannot be said of something like Solicitors from Hell, which as its name indicates was never really interested in glowing endorsements (and which was closed down following litigation by the Law Society, though its operator seems unrepentant: see Legal Futures, Solicitors From Hell founder wins surprise High Court victory), or of Contact Deniers (run by by Fathers4Justice) which openly aims to name and shame those who clients feel have let them down. In those circumstances, one questions the premise that there is an “already muted consumer voice” – there isn’t, even if the voice is a mad one in the wilderness. Nevertheless, Goddard continues:
As lawyers use the threat of defamation actions to ensure that negative online feedback is removed, the power imbalance inherent in the consumer/lawyer relationship, makes the effect of this threat even more pronounced than in other markets.
Given that so many lawyers are fighting for their livelihoods, while legal aid dwindles to a distant memory, and the LSCP hastens their demise by recommending the proliferation of unregulated ProMacs (“professional” McKenzie Friends: see Weekly Notes 28 November 2014), the risk of a power imbalance seems, at present, unsubstantiated.
Lord Chief Justice’s annual report
Lord Thomas sounds a weary note
In the Lord Chief Justice’s Report 2014, presented to Parliament this week, Lord Thomas of Cwmgiedd alluded in his opening sentence to judges carrying out their core duties “despite obvious difficulties”. In crime, “resources have not in fact kept pace” with the unexpected rise of sexual offences prosecutions:
If the increase in cases involving sexual offending continues it will not be possible, without the commitment of more resources, to reverse the trend of longer waiting times for such cases, particularly where the defendant is on bail. This is a matter of significant concern as the effect of delay in such cases has a particularly serious effect on both the complainant and the defendant.
In civil cases, in what is clearly a reference to the somewhat mixed success rate of Alternative Business Structures (ABSs),
it is becoming increasingly clear that steps must be taken to examine why the cost of legal services is increasing despite the significant change in the legal market and the great number of providers of legal services. Competition should have reduced cost significantly, but this is not happening.
And then there was the question of court fees, and the cuts in legal aid, which had led to a
very significant rise in the proportion of litigants in person. This increase together with the time taken to control the costs of litigation through cost budgeting has placed a considerable strain on the civil justice system.
Cases are taking longer and often full contested where they might not otherwise have been, since “the take up of mediation and ADR has reduced”. Meanwhile, in commercial litigation serving the domestic and international markets,
The services these courts provide will improve as a result of the delivery of a state of the art IT system (based on systems in use in overseas jurisdictions)
In a footnote, he discloses that these new IT systems are being provided “Under an agreement reached in April 2014 with Thomson Reuters”. One assumes there are no unresolved competition issues given that Westlaw (owned by Thomson Reuters) occupies a leading (but by no means sole) position as legal information database provider.
Taylor Swift – TM queen
Singer applies to register song titles as trade marks
Some rivals will be seeing RED but they needn’t worry, you can still Party Like it’s 1989 without incurring the wrath of Taylor Swift’s legal eagles.
In an entertaining article listed on Primary Opinion, John Scruton of Trademarkology reports that the Nashville-born country-turned-pop singer has
“filed several applications to register trademarks drawn from lyrics to songs in her boffo album 1989. Among the marks are “This Sick Beat,” “Nice to Meet You. Where You Been?,” “Could Show You Incredible Things,” and “Party Like It’s 1989.” By my count, she filed a total of 57 trademark applications on two days last October, but those only cover six separate marks. These new applications are on top of a number of other trademarks that she already owns, or has applied to register, including “Taylor Swift,” “Taylor Swift Fearless,” “Speak Now,” and “TS.””
Scruton explains that this isn’t as bad as it sounds. By trademarking these terms she is not preventing the rest of us from using them in everyday speech, or even as song titles or lyrics – only from using them to exploit a product competing with one that TS herself is promoting under the same mark. If she ever does, which she might not. All she’s done so far is apply to register them.
“The idea is to avoid confusion: your registration stakes out a claim, and others can’t confuse consumers by using the same mark, or a similar mark, in a way that is likely to cause confusion about the source of the products.”
This may seem obvious enough to a lawyer but it’s clearly caused some confusion to pop fans (yes, my daughter is also a Swifty) and lay commentators, as Scruton points out, citing a New Yorker article using the story to complain, facetiously, that Swift is now monopolising the phrases “Happy Birthday”, “Happy Hanukkah”, “iPhone 7” etc.
Where would the law be without the music biz, eh? It seems only last month we were writing about Rihanna and her T-shirt passing-off action – and indeed it was. (See Weekly Notes, 30 January 2015).
But if you like the combination of pop music and intellectual property, then head over the Trademarkology blog and read John Scruton on Katy Perry and the “left shark” controversy, in Katy and Left Shark: Pop Divas Flex IP Muscles.
Vale Francis Bennion
As the leading reporter of case law in England and Wales, ICLR pays tribute to the leading interpreter of statute law, Dr Francis Bennion, whose death was announced on 16 February.
As the aptly named Statute Law Society website said, in announcing the sad news:
Francis Bennion played a significant part in the foundation of the Society. He was a prolific writer on statute law. His magisterial work, Bennion on Statutory Interpretation, became a leading and authoritative text on the subject, running to six editions. It was frequently cited in the courts. He will be greatly missed in the world of statute law scholarship.
In his honour, a number on Twitter recalled this comment, now preserved on FB’s website, on the Unlawful appointment of Lord Chancellor
Annual Bar Placement Week
The Bar Council last week launched its second Bar Placement Week in Leeds and Manchester in partnership with Pathways to Law. As part of its ongoing commitment to improving social mobility within the profession, the scheme provides an opportunity for high-achieving Year 12 students from non-traditional backgrounds to spend time with a barrister, get training for interview skills and participate in a workshop to develop advocacy skills.
Let pupil masters master pupils, says BSB
“Chambers and employers should be put back in charge of designing the pupillage experience for aspiring barristers”, the Bar Standards Board (BSB) has announced. In a new pamphlet published on 20 February the barrister’s regulator says that chambers and employers are best placed to decide how to plan and provide pupillages, and that the BSB should focus instead on ensuring that barristers have the right knowledge and skills at the end of the educational process.
A welcome retreat, some might say, from the regulatory overkill that has characterised the LSB regime.
Law (and injustice) from around the world
Je Suis Chelsea (not guilty)
An incident on the Paris metro has raised once again the issue of racism in football, after a group of Chelsea fans on a train were captured on video in the act of preventing a black man from boarding a carriage, pushing him back repeatedly, and chanting “We’re racist, we’re racist and that’s the way we like it”. According to the Guardian, three men were identified in the footage, which went viral, and Metropolitan police in London are assisting French authorities. If brought to trial in France, the suspects could face a three-year prison sentence and €45,000 (£33,300) fine.
The incident provoked a backlash on social media, but it seems there may be some legal questions worth asking. Although the act of pushing the man off the train appears to have been a racially motivated assault, were the chanted words in and of themselves racist? In other words, is it racist to “out” yourself jubilantly as a racist, or is it just a realistic self-appraisal?
Compare this with the reported comments of UKIP councillor Rozanne Duncan, who apparently declared in a TV documentary, Meet the Ukippers (whose gasp-inducing moments forced you to pinch yourself to remember it was not a made-up mockumentary) that she did “have a problem with people with negroid features”. Naively claiming not to understand what the fuss was about, Ms Duncan afterwards complained about her summary ejection from the party. In her case, though the remarks may not have been likely to have any harmful effect, other than to make people think her stupid, they were undoubtedly an expression of prejudice. But as with the football racists, there could be a harmful effect in stimulating others to concur, and lessen the social and legal inhibitions which currently make people think twice about outing themselves in this way.
On the subject of the Chelsea football fans, barrister Alison Gurden writes on her blog of The Danger of the Twitter Lynch Mob to Football Fans – Chelsea Fans Guilt by Association, and a subsequent statement further clarifying her advice to fans at risk of being caught up in the backlash.
Judge declares anti-gay law ‘discriminatory’
The chairman of India’s Law Commission, Justice Shah AP has condemned the country’s Supreme Court for recriminalising homosexuality, according to Pink News. Section 377 of India’s penal code bans “sex against the order of nature”, which is widely interpreted to mean gay sex, and can be punished with up to 10 years in jail. The rule dates back to the days of British colonial rule in India. On 11 December 2013 India’s Supreme Court upheld Section 377. It overturned a 2009 New Delhi High Court decision – issued by Justice Shah – that ruled the law unconstitutional. The Supreme Court’s ruling of December 2013 was constitutionally wrong, Justice AP Shah warned. He said:
Section 377 is discriminatory in its application, unreasonable in its intent, deprives a group of its personal autonomy and violates individual privacy and human dignity…”
PM aims to revise constitution
Prime Minister Shinzo Abe on Monday said his administration would try to revise the Constitution, updating it for the new realities of today’s world. According to the Japan Times, he said amending the pacifist text is one of the Liberal Democratic Party’s most sought-after goals. Abe also spoke about the contentious issue of collective self-defense. He said that once his security legislation is passed, Japanese troops could be allowed to engage in mine-sweeping operations in the Strait of Hormuz.
Abe also pledged to pursue a policy he dubs “proactive contribution to peace” and proceed with security legislation to expand the range of potential SDF missions overseas, including peacekeeping.
Saudi court upholds 15 year sentence for human rights lawyer
A Saudi court has upheld the sentencing of Waleed Abulkhair, who was arrested in 2013 for challening the ruling authorities, according to Middle East Eye. Abulkhair was convicted in July 2014, and tried under the new anti-terrorism law, where he was convicted on a series of charges including “inciting public opinion”. Activists previously confirmed to Middle East Eye that the law was intended to target activists and to silence any form of political dissent or calls for reform.
Sudan security agents confiscate print runs of 14 newspapers
The Committee to Protect Journalists (CPJ) reports that the National Intelligence and Security Services (NISS) gave no reasons for its security agents having confiscated on 16 February editions from at least 14 newspapers. The National Council for Press and Publications, a government body officially charged with overseeing newspapers, said in a statement it regretted the confiscations and pledged to investigate.
Separately, on January 13 Madiha Abdella, editor-in-chief of the Communist Party’s official outlet Al-Midan, was charged with criminal conspiracy, undermining the constitutional system, encouraging violent or criminal opposition, and the publication of false news, Abdella told CPJ. She also faces charges of failing to uphold the responsibilities of an editor-in-chief and violating the requirements for a licensed paper under the press law.
The latest confiscations and prosecutions came as the Sudanese government passed a freedom of information law which it said would increase transparency in the country, according to news reports. Sudanese journalists told CPJ last month the law was unlikely to strengthen press freedom in the country.
Texas ban on same-sex marriage declared unconstitutional
A Travis County judge ruled Tuesday that the Texas ban on same-sex marriage was unconstitutional, according to the Statesman. Travis County Probate Judge Guy Herman ruled as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her eight-year relationship to Stella Powell deemed to have been a common-law marriage. Powell died last summer of colon cancer.
That’s it folks! Have a great weekend. And don’t forget to vote in our 150 Years of Case Law on Trial poll, currently concentrating on 1865 to 1914.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.