The road ahead
The Easter term began last week on Tuesday 13 April and will continue until Friday 28 May 2021. Today, Lady Rose was sworn in as a new Justice of the Supreme Court, in a socially distanced ceremony (see image). She will be sitting on the panel for this week’s hearing, R (on the application of Haworth) (Respondent) v Commissioners for Her Majesty’s Revenue & Customs (Appellant), a case about tax avoidance, on appeal from a reported decision of the Court of Appeal  EWCA Civ 747;  1 WLR 4708. For more on this week’s business, see the UK Supreme Court Blog: In the Supreme Court W/C 19 April 2021
Among the forthcoming cases which the “Supremes” will be considering are references in respect of two Bills passed by the Scottish parliament which the UK government says go beyond its legislative competence. The Bills are the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill; and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. For more on this see, Joshua Rozenberg, A Lawyer Writes: How competent is Scotland’s parliament?
See also David Allen Green, Law and Policy Blog: The judges are only the ‘enemies of the people’ when it suits the government — on the “sheer hypocrisy” of the London government making use of the Supremes as a constitutional court when it suits them, then complaining about judicial overreach when it doesn’t.
Other courts and tribunals
This week HM Courts and Tribunal Service opened a Nightingale Court in Preston which will provide additional non-custodial crown capacity for the North West. A full list of all Nightingale Courts can be found on GOV.UK.
Meanwhile, the business of tribunals is gradually returning to normal, although there is some question about what that normal should be. According to A road map for 2021–22, a joint announcement of Judge Barry Clarke President of Employment Tribunals (England and Wales) and Judge Shona Simon President of Employment Tribunals (Scotland):
“The challenge, as we speak of a ‘return to normal’, is to reflect on whether ‘normal’ is the right destination point. In some cases, it will be. It remains our view that, in general terms, justice is best experienced in a face-to-face environment. In other cases, it will not be. In respect of some of the innovations of the last year, we should not turn back. We must reflect on what we have learned and ensure that we keep hold of the good. The future will involve more, not less, use of technology. We wish technology to be the servant of justice, not its master.”
As with the announcement of the Chancellor of the High Court, Sir Julian Flaux, which we reported in the last edition of Weekly Notes, 29 March 2021, their view is less gung-ho than that apparently espoused by the Lord Chief Justice in his message on courts recovery signalling a gradual but definite return to the “old normal”.
Compensation on the Horizon?
Post Office Chief Executive Nick Read has called on the government to properly compensate wrongly accused postmasters who were victims of the Horizon IT scandal. Nick Wallis, whose reporting of the scandal has been tenacious and exemplary, says Read told his staff in a speech that the Post Office simply didn’t have the resources to provide proper compensation. A number of the wrongly accused postmasters, many of whom were convicted in prosecutions pursued on the basis of questionable evidence by the Post Office’s own legal unit, banded together in a group action to pursue a civil claim which, after a couple of very damning judgments against it, the Post Office eventually settled. But they still fought hard in negotiating the agreed compensation, most of which was swallowed up in costs and rewarding the litigation funders.
Meanwhile, following investigation by the Criminal Cases Review Commission, the Court of Appeal has quashed many if not most of the convictions for fraud, theft or false accounting.
It does not look as though the government, which has ordered a public inquiry, is minded to provide any money to help the Post Office, which might have had more funds at its disposal, says Wallis, if it hadn’t spent millions fighting the claims which it ultimately settled (although without accepting liability).
See Nick Wallis, Post Office Trial: Nick Read calls on government to compensate Subpostmasters (which includes a full transcript of Read’s speech).
BBC, The Great Post Office Trial (which traces the entire story over a decade or more).
Have your cake and plead it
Colin v Cuthbert; In re a Caterpillar Cake may not after all be the name under which we will eventually report the courtroom clash between Marks & Spencers Ltd and Aldi Stores UK over the latter’s alleged infringement of the former’s trade mark in [a cylindrical design of cake slathered in icing and decorated with sweets in the cartoonish form of] a caterpillar. Whether it is really a trade mark breach or a passing off claim has not been made clear in the press reports. According to Inforrm’s blog (Law and Media Roundup, 19 April 2021):
“M&S argues the similarities mean consumers think they are of the same standard, enabling its cheaper rival — Cuthbert costs £5 while Colin is £7 — to “ride on the coat-tails” of the company’s reputation for high-quality food. M&S, which has lodged an intellectual property claim with the high court, has three trademarks relating to its caterpillar cake, including the words “Colin the Caterpillar” and the packaging. It wants Aldi to remove Cuthbert from its shelves and agree not to sell anything similar in the future.”
It cites a piece in The Guardian, which suggests the case “is being billed as the ultimate food fight…” before going on report, more seriously:
“In a statement, M&S said: ‘Love and care goes into every product on our shelves. So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value.’ Aldi declined to comment.”
If Aldi declined to give the Guardian a quote, they were not so coy on Twitter, where an account (presumably not a counterfeit passing itself off as their account) has been issuing cheeky ripostes:
— Aldi Stores UK (@AldiUK) April 16, 2021
(Or maybe they were just a bit nettled at finding themselves in the dock.)
— Aldi Stores UK (@AldiUK) April 19, 2021
Meanwhile, given that Cuthbert is not the only supermarket copycat-erpillar, a pertinent question might be that asked by CJ McKinney:
Any ideas why M&S is suing Aldi over its "Cuthbert the Caterpillar" cake, but not Asda for "Clyde the Caterpillar", Waitrose for "Cecil the Caterpillar" or Tesco for "Clyde the Caterpillar"? https://t.co/sUFSQu2Dzc
— CJ McKinney (@mckinneytweets) April 15, 2021
For a more detailed comment on the wisdom of the claim, see David Allen Green, Law and Policy Blog: Colin the Caterpillar and the Art of War — why it is sometimes sensible not to enforce your legal rights
A selection of recently published WLR Daily case summaries from ICLR.3:
LIMITATION OF ACTION — Period of limitation — Postponement of limitation period: OT Computers Ltd v Infineon Technologies AG (Granville Technology Group Ltd (in liquidation) v Infineon Technologies AG), 14 Apr 2021  EWCA Civ 501;  WLR(D) 200, CA (Peter Jackson, Coulson, Males LJJ)
LIMITATION OF ACTION — Period of limitation — Misrepresentation; PRACTICE — Pleadings — Amendment: Revenue and Customs Comrs v IGE USA Investments Ltd, 14 Apr 2021  EWCA Civ 534;  WLR(D) 199, CA (Henderson, Asplin, Birss LJJ)
TRADE UNION — Application to list — Foster carers: National Union of Professional Foster Carers v Certification Officer, 16 Apr 2021  EWCA Civ 548;  WLR(D) 206, CA (Underhill, Bean, Green LJJ)
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR includes:
5 SAH: Alexandra Wilson examines the Court of Appeal ‘Encrochat’ judgment: A, B, D & C v Regina  EWCA Crim 128: R v A  EWCA Crim 128;  WLR(D) 80, CA
Free Movement: Court of Appeal criticises ambiguous language in immigration tribunal judgments: Secretary of State for the Home Department v Starkey EWCA Civ 421
NIPC Law: Patents — Kwikbolt Ltd v Airbus Operations Ltd: Kwikbolt Ltd v Airbus Operations Ltd  EWHC 732 (IPEC)
RPC Perspectives: Outram — Tribunal prevents HMRC from relying on new argument: Outram v Revenue and Customs  UKFTT 29 (TC)
Inforrm’s blog: Case Law, Strasbourg: Handzhiyski v Bulgaria: Conviction for placing Santa Claus accessories on statue in the context of nation-wide political protests violated Article 10: Handzhiyski v Bulgaria (Application no. 10783/14);  ECHR 283
RPC Perspectives: Court of Appeal upholds copyright infringement decision against digital radio aggregator: Warner Music UK Ltd v TuneIn Inc EWCA Civ 441;  WLR(D) 183
RPC Perspectives: Supreme Court: When may a UK domiciled parent company owe a duty of care to individuals affected by the acts of its foreign subsidiary?: Okpabi v Royal Dutch Shell plc UKSC 3;  1 WLR 1294;  Bus LR 332
Inforrm’s blog: Are digital companies about to lose their rights to exclude users from their platform, Biden v Knight First Amendment Institute: Biden v Knight First Amendment Institute 593 US _ (2021)
Transparency Project: F (A Child : Adjournment)  EWCA Civ 469: F (A Child : Adjournment) EWCA Civ 469
Other recent publications
In the latest podcast from her 2903cb series, via LawPod UK, Prof Catherine Barnard looks back on the past 100+ days since the UK withdrew from the EU. The dire forecasts of chaos at our borders have not been realised, and the doomsayers of Brexit have probably got it wrong. But while the economy is likely to bounce back post Covid, in the longer term we still don’t know how the effects of Brexit will play out for the fishing industry, and other major areas of the UK economy.
See also, on the same theme, from David Allen Green’s Law and Policy Blog: Four months after the end of the transition arrangements there is still no clear view of the future relationship between the United Kingdom and the European Union
In a guest post on the UK Human Rights Blog, Lord Sandhurst QC (who practised as Guy Mansfield QC) says the People’s Republic of China’s imposition of sanctions against Essex Court Chambers, ostensibly in response to an opinion drafted by four members discussing the treatment of the Uighur minority in China, “strikes at the heart of the English legal system and the services offered by English lawyers”. He says the actions of the PRC could have serious ramifications for other lawyers and businesses with clients in China and that they “call for a concerted and strong response by lawyers and governments from all democratic state”.
Report from the Institute for Government, which calls on ministers and officials to accept that judicial review improves policy and recommends that they review their own policy making processes before trying to limit judicial scrutiny of ministers’ decisions. The report argues that judicial review would cause less frustration in government if ministers and civil servants better understood what legal advice is for and how to use it.
Post by Maximilian Hardy on his Counsel of Perfection blog, with advice for pupil barristers entering their second six months, on how to cope with the sometimes fearful ordeal of their initial court appearances.
Joshua Rozenberg on his Law and Lawyers blog explains a less well publicised aspect of the controversial new Police, Crime, Sentencing and Courts Bill. Clause 165 of the bill seeks to amend section 16 of the Juries Act 1974, which allows criminal trials in England and Wales to continue after a juror dies or is discharged provided the number of jurors does not fall below nine. Section 16(2) is to be repealed so that it no longer provides an exception for defendants facing “any offence punishable with death”. However unlikely it might be for the technical possibility of a capital case to occur, what the Bill should really be doing, he suggests, prompted by tweets from Barristerblogger Matthew Scott, is sweeping away the death penalty altogether.
Lucy Reed on her Pink Tape blog offers what might have been an April Fool’s Day take on Latin usage in the courts, quads and colleges of law.
Dates and Deadlines
Young Criminal Bar survey
CALL FOR RESPONSES: The Young CBA is gathering responses from <7 year call barristers who joined the Bar to practice in crime but have either:
1. Left independent practice at the Bar; or
2. Moved away from a majority crime practice.
Please contact firstname.lastname@example.org or DM
— The Young Criminal Bar (@TheYoungCBA) April 16, 2021
Public Law Project: Wales Conference / Gyhoeddus Cymru
Online — 4th to 6th May 2021
After a short hiatus due to the pandemic PLP’s Wales conference returns in 2021, looking at access to justice, the impact of Brexit and a series of practical public law seminars. The event is held over three days on Zoom, with sessions divided up between early morning and afternoon to allow for maximum flexibility around work and other commitments. Details via PLP website.
Resolution: National Conference
Online — Monday 17th Friday 21st May
Join the biggest annual gathering of family justice professionals, for inspiring keynotes, virtual networking and workshops. For the first time, Resolution’s National Conference will run across five days, giving you more time to fully engage with the online programme, at your own pace. Details via Resolution.
Tweet of the week
is from Sarah Glassmeyer with a wry comment on a familiar problem:
The legal system: pic.twitter.com/iNzpxQDnmX
— Sarah Glassmeyer (@sglassmeyer) April 11, 2021
That’s it for this week. Thanks for reading, and thanks for all your tweets 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.
Featured image: Lady Rose being sworn in as a Justice at the UK Supreme Court today.