Is it a bird? Is it a plane? No, it’s an AI generated image from Shutterstock.

 

Courts

Mediation integration

Mediation is soon to be an integral part of the civil small claims process, meaning parties will need to attend an appointment to try and resolve their case ahead of having a court hearing. For court cases filed from 22 May 2024, attending a mediation session will become an integrated, required step in resolving a money dispute under £10,000 for those who have made a new civil court claim on paper or through traditional online systems.

A blog post on the Inside HMCTS blog has more: Preparing for the requirement to mediate in small claims: What you need to know

In the recent case of Churchill v Merthyr Tydfil County BC [2023] EWCA Civ 1416; [2023] WLR(D) 498 the Court of Appeal reiterated that the court had the power to stay proceedings for, or to order, parties to litigation to engage in a non-court-based dispute resolution process, provided that the order made did not impair the very essence of the claimant’s right to a fair trial, was made in pursuit of a legitimate aim and was proportionate to achieving that aim. It seems that, for small claims, what might otherwise be discretionary will now be effectively compulsory. For more on the Churchill case, see David Burrows’ explainer: Power to stay civil proceedings for alternative dispute resolution

Online divorce

HMCTS has also issued new guidance for legal professionals using the new law service for general applications and applications for alternative service, deemed and dispensed service and conditional orders. This guidance is for the ‘new’ law divorce services (referred to as ‘no fault’ divorce under Divorce, Dissolution and Separation Act 2020) which includes all applications submitted from April 2022.

A risk of the new online divorce service portal is the risk of inadvertently making an application for the wrong client by mistake: that is apparently what happened in Williams v Williams [2024] EWHC 733 (Fam), in which the President of the Family Division, Sir Andrew McFarlane, refused an application by the solicitor concerned to rescind the order. He said:

“53. Drawing matters together, there is no reported authority where a decree absolute or final order has been set aside in circumstances of complete procedural regularity. There is no authority establishing that a final order made in such circumstances is to be considered voidable, let alone void. … As the authorities make clear, a final order made without procedural irregularity should stand for all the world.”

No doubt the case will encourage solicitors to be more careful in their eagerness to click their mouse on the clients’ behalf. However, any suggestion that the online portal is at fault or that it was somehow too easy to mis-click was firmly squashed by the President at para 39 of his judgment:

“Like many similar online processes, an operator may only get to the final screen where the final click of the mouse is made after travelling through a series of earlier screens. First of all, a solicitor, who may have a series of different divorce proceedings ‘live’ on the system at any one time, must select one particular case. It was at this stage that the error made by Vardags’ operative apparently took place. Thereafter a number of other screens must be traversed, each of which prominently bears the names of the parties (for example ‘Williams v Williams’). At the final stage, after clicking the request for a final order, a further screen comes up inviting the operative to confirm that this is indeed what is sought — again the name of the case is prominently displayed on this screen.”

Formal wear

A pilot scheme begins today in the Central Family Court, whereby judges will wear robes (though not wigs) in an effort to increase the formality of the proceedings, and reduce the risk of the violent and threatening behaviour experienced by some judges and court users.

The pilot represents a departure for the family courts where, normally, wigs and gowns are not worn, unlike in the more senior criminal and civil courts.

The pilot scheme, which has been approved by Sir Andrew McFarlane, the President of the Family Division, will run for an initial 3-month period. It only applies to judges. Practitioners will not be required to wear wigs or gowns. (Nor, presumably, will magistrates sitting in the Family Court in the same building.)

A survey will be conducted before, during and after the pilot to evaluate its effect on behaviour in court. It’s not clear if the pilot will extend to fully remote hearings conducted from the CFC, though presumably it will apply to hybrid ones.

Intellectual Property

Tesco: ‘every Lidl helps’

Two supermarkets have been battling it out over the effect on their customers of a yellow circle in a blue square. This has been Lidl’s logo since 1987, registered as a trade mark both with and without the word “Lidl” in the middle (or midl). Since 2020 Tesco have been using, with their existing blue colour branding, a yellow circle, with the words “Clubcard Price”, and sometimes a price, marking goods for which holders of their Clubcard get a discount (the CCP promotion).

Lidl claimed that Tesco had thereby infringed their Trade Marks, committed passing off and infringed Lidl’s copyright in the Mark with Text as an artistic work. As well as denying these claims, Tesco counterclaimed for a declaration that the Wordless Mark was invalidly registered, alternatively for an order for revocation on the ground of non-use.

Joanna Smith J [2023] EWHC 873 (Ch) held that Lidl succeeded in their claims, although she upheld Tesco’s counterclaim that the registrations of the Wordless Mark were invalid on the ground that the registrations had been applied for in bad faith.

On Tesco’s appeal, the Court of Appeal last month upheld all but one aspect of the High Court decision, agreeing (apparently with some reluctance) that the CCP signs infringed the mark with text and amounted to passing off. The Court of Appeal allowed Tesco’s appeal on copyright infringement, finding that aspects of Lidl’s logo that Tesco was said to have copied were not original over earlier drafts and so copyright could not subsist in them. Further, the Court said that Tesco had not substantially copied those aspects of Lidl’s logos in which copyright did subsist.

For Tesco these may be small victories (every little helps, perhaps) but in the long run, unless they wish to appeal to the Supreme Court, they will need to stop using the current version of their CCP signs.

For more detailed commentary, see Pinsent Masons Out-Law blog: Court of Appeal dismisses Tesco appeal in Lidl logo dispute

AI Regulation

A memorandum of understanding (MoU) on AI safety testing agreed by the UK and US governments provides for closer ties between the UK AI Safety Institute and its namesake in the US. The agreement was signed on 1 April 2024, which is also April Fools Day, but the development appears to be genuine (unlike the AI-generated image at the top of this blog).

The MOU will ensure the two countries’ agencies work together to develop tests for the most advanced artificial intelligence (AI) models, following through on commitments made at the AI Safety Summit (the Bletchley Declaration) last November. The UK and US AI Safety Institutes aim to work seamlessly with each other, partnering on research, safety evaluations, and guidance for AI safety. The respective institutes will “develop shared capabilities through information-sharing, close cooperation, and expert personnel exchanges”.

The MOU has been welcomed by IP lawyers including Pinsent Masons’, according to their Out-Law blog, which noted that

“EU law makers are in the final stages of approving a wide-ranging new AI Act, which would introduce a new risk-based regulatory regime for AI in the EU – including new rules that will affect generative AI systems. In the US, an executive order signed by president Joe Biden last autumn provides for new controls to be applied to generative AI – including the labelling of outputs from generative AI systems.

In the UK, the government does not intend to legislate yet for the use of AI specifically, but instead intends to implement a more flexible system of regulation under which UK regulators would have to have regard to five cross-sector principles pertaining to AI when performing their existing sector-based regulatory functions.”

Media law

SLAPP reform

The Strategic Litigation Against Public Participation Bill, introduced by a private member but now with government backing, will shortly go to committee stage in the House of Commons. But the UK Anti-Slapp Coalition has identified a fundamental flaw at the centre of the Bill’s early dismissal mechanism in that it requires a court to make a subjective judgement as to the intent of a SLAPP claimant in order to determine whether the legal action can be identified as a SLAPP.

In an open letter over 60 editors, journalists, writers, publishers, academics, and experts have written to Justice Secretary Alex Chalk KC MP calling on the Government to support amendments. The signatories highlight concerns that deficiencies of the Economic Crime and Corporate Transparency Act (ECCTA) were previously made clear to the Government, but yet have been replicated in full in the Anti-SLAPP Bill.

They echo concerns raised by the Law Society and MPs, that identifying a claimant’s intent “is a notoriously difficult, time-intensive, expensive and uncertain process that would undermine the effective operation of the protections the law provides.”

The signatories also called for the definition of public interest in the Bill to be refined in order to further strengthen the legislation.

Legal education

EU law

Should we continue to teach law students about EU law? A recent open access article from The Law Teacher, by Cherry James of South Bank University School of Law and Social Sciences asks: A reordering: to teach EU law or not? According to the abstract:

“A number of commentators have made the case for the desirability of keeping EU law as a core subject. This paper takes account of the Retained EU Law (Revocation and Reform) Act 2023 and the changes to the professional requirements for qualification. Three key arguments are made. The first is that Brexit is disordering in an unquantifiable way the legal systems of the UK and introducing new uncertainties. The second is that at the same time there is a disordering of legal education with consequential changes to the rules for qualification to practise. The third argument, which is premised on the first two, is that providers of law degrees must recognise the implications of these processes and other processes of change (which are identified in this article) and reappraise the purpose of EU law in the curriculum.”

ICLR has continued to report cases from the Grand Chamber or Full Court of the European Court of Justice (ECJ) after Brexit because we recognise that their decisions continue to affect businesses and individuals and their interpretations of EU legislation (much of which is still applicable in the form of Retained EU Law) continue to be relevant and persuasive, even if not binding, within this jurisdiction. We also report more international subject areas such as Conflicts (jurisdiction), Data protection, European arrest warrant, IP cases, airline compensation cases, and cases concerning international conventions. Alongside our law reports, we also publish unreported judgments of the Court of Justice and the General Court.

Legal services

Regulatory recommendations

Justice Committee Chair Sir Bob Neill KC has written to the Lord Chancellor and Justice Secretary Alex Chalk KC outlining eight key recommendations following the conclusion of the Committee’s work examining the regulation of the legal professions. The cross-party committee of MPs held two oral evidence sessions in Parliament with representations from the Bar Council, Bar Standards Board (BSB), CILEX (Chartered Institute of Legal Executives), CILEx Regulation, The Law Society, Solicitors Regulation Authority (SRA) and (supervising them all as a sort of ‘uber-regulator’ ) the Legal Services Board (LSB).

The recommendations in its Letter to the Lord Chancellor are made against the background of the Post Office Horizon Scandal which the committee notes “will inevitably have damaged the public’s perception of the legal professions”.

It is imperative, it says, that “the public can see that the regulatory framework is robust and responsive enough to identify and punish egregious breaches of regulatory standards”.

The main recommendation is for a complete review:

“The Legal Services Act 2007 does not appear to provide a stable long-term framework for the regulation of the legal professions. The Committee is concerned by the amount of discord and disfunction between the approved regulators, the regulatory bodies and the LSB. We recognise that there is relatively little appetite in the sector for far-reaching regulatory change, however, it is undeniable that the case for re-examination of the legislative framework underpinning regulation is growing stronger and stronger. Considering the evidence as a whole, we conclude that it is now right to carry out a review of the Legal Services Board and we recommend this to the Government.”

It also suggests that the BSB should consider whether “greater institutional independence could also help to facilitate improvements in its effectiveness as a regulator”. The BSB is responsible for the discipline and standards of conduct of barristers.

FieldFisher review

In the meantime, the BSB announced that it has also been under scrutiny via an end-to-end review of its enforcement systems, conducted by FieldFisher LLP. Fieldfisher reviewed how well the BSB’s enforcement system operates from first receipt of concerns about barristers’ conduct through to final decisions being made on sanctions to be imposed by staff, an Independent Decision-making Panel or by the Disciplinary Tribunal.

Fieldfisher found that “the enforcement procedure adopted by the BSB is in line with similar models used in professional regulation elsewhere” and that “fundamentally the approach was appropriate” but the report makes a wide range of recommendations for improvement. This includes “better communication with consumers to ensure that the public understands what the Bar Standards Board can help with and what it cannot”.

The Board has agreed in principle to most of the recommendations and referred others to the Independent Decision-Making Body for their consideration.

The full report is available on the BSB website.

Post Office Fujitsu scandal

Recent commentary

Joshua Rozenberg, A Lawyer Writes:

Nick Wallis, Post Office Scandal blog:

Richard Moorhead Thoughts on the Post Office Scandal:

 

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

ADMINISTRATION OF ESTATES — Personal representative — Fees: Shepherd & Co Solicitors v Brealey, 26 Mar 2024 [2024] EWCA Civ 303; [2024] WLR(D) 146, CA

CRIME — Conspiracy — Conspiracy to defraud: R v Hayes (Tom) (R v Palombo (Carlo)), 27 Mar 2024 [2024] EWCA Crim 304; [2024] WLR(D) 151, CA

CRIME — Jury — Verdict: Yussuff v Governor of HMP Belmarsh, 27 Mar 2024 [2024] EWHC 692 (Admin); [2024] WLR(D) 149, DC

DISCRIMINATION — Disability — Housing: R (FG) v Kensington and Chelsea Royal London Borough Council, 09 Apr 2024 [2024] EWHC 780 (Admin); [2024] WLR(D) 154, KBD

HOUSING — Housing allocation policy — Local authority’s allocation criteria: R (AK) v Westminster City Council, 05 Apr 2024 [2024] EWHC 769 (Admin); [2024] WLR(D) 157, KBD

LANDLORD AND TENANT — Lease — Tenants’ right of first refusal: Prescott Place Freeholder Ltd v Batin (Nos 1 and 2) (Donovan v Prescott Place Freeholder Ltd), 27 Mar 2024 [2024] EWCA Civ 298; [2024] WLR(D) 145, CA

LOCAL GOVERNMENT — Homeless person — Suitability: Querino v Cambridge City Council, 27 Mar 2024 [2024] EWCA Civ 314; [2024] WLR(D) 153, CA

PARTNERSHIP — Dissolution — Partnership property: Procter v Procter, 09 Apr 2024 [2024] EWCA Civ 324; [2024] WLR(D) 158, CA

PRACTICE — Stay of proceedings — Jurisdiction: Zephyrus Capital Aviation Partners 1D Ltd v Fidelis Underwriting Ltd, 28 Mar 2024 [2024] EWHC 734 (Comm); [2024] WLR(D) 148, KBD

REVENUE — Corporation tax — Loan relationships: Blackrock Holdco 5 LLC v Revenue and Customs Comrs, 11 Apr 2024 [2024] EWCA Civ 330; [2024] WLR(D) 159, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

UK Human Rights Blog: Developing a new tort for climate change: Smith (Michael John ) v Fronterra Co-operative group Ltd [2024] NZSC 5, SC (NZ)

Trusts & Trustees: Clear as mud: Proprietary Estoppel after Guest v Guest [2022] UKSC 27; [2022] 3 WLR 911; [2023] 1 All ER 695; [2023] 1 FLR 590, SC(E)

Local Government Lawyer: Conditions can only be imposed if found to be necessaryWilloughby (610) Ltd v Secretary of State for Levelling Up, Housing and Communities[2023] EWHC 2553 (Admin), KBD

Nearly Legal: The Lowe down: Lowe v Governors of Sutton’s Hospital In Charterhouse [2024] EWHC 646 (Ch), Ch D

Law & Religion UK: Criminal damage and conscience: Attorney General’s Reference No 1 of 2023 [2024] EWCA Crim 243; [2024] WLR(D) 130, CA

Middle Temple Library Blog: Rohl v Parr: A blog post by Intern Natasha Southall: Rohl v Parr (1796) Reports of Cases Argued and Ruled at Nisi Prius, 27 Feb 1796

UK Human Rights Blog: Double Feature: Article 6 and extradition in Bertino and Merticariu: Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9; [2024] 1 WLR 1483, SC(E)

Local Government Lawyer: This site is not available. Try again later. R (Tesco Stores Ltd) v Stockport Metropolitan Borough Council [2023] EWHC 3154 (Admin), KBD

Law & Religion UK: Ritual slaughter again: Executief van de Moslims van België: Belgian Muslims v Belgium(Application no 16760/22); Press release, ECtHR

Local Government Lawyer: Making final determinations in the Court of Protection: VT v NHS Cambridgeshire and Peterborough Integrated Care Board [2024] EWHC 294 (Fam), Fam D

Out-Law: Court of Appeal dismisses Tesco appeal in Lidl logo dispute: Lidl Great Britain Ltd v Tesco Stores Ltd [2024] EWCA Civ 262, CA

Local Government Lawyer: Court of Appeal sets aside order that was not open to Family Court judge as matter of lawIn re J (Care Plan for Adoption)[2024] EWCA Civ 265, CA

Local Government Lawyer: High Court allows parental order application despite existence of US adoption orderIn re AB (a child)[2024] EWHC 586 (Fam), Fam D

Global Freedom of Expression: Telo de Abreu v. Portugal: expands expression: Telo de Abreu v. Portugal (Appn no 42713/15), ECtHR

Local Government Lawyer: Judge rejects challenge to decision by Assistant Coroner not to hold Article 2 inquest into death of woman in fire at homeR (Parkin) v HM Assistant Coroner for Inner London (East)[2024] EWHC 744 (Admin), KBD

A Lawyer Writes: A Pyrrhic victory? Verein KlimaSeniorinnen Schweiz and Others v Switzerland (Application no. 53600/20); [2024] ECHR 304, ECtHR (GC)

Local Government Lawyer: Adoption applicant wins appeal after judge refused to allow them to attend hearingIn re T (A Child) [2024] EWCA Civ 189; [2024] WLR(D) 127, CA

Nearly Legal: Council managing its premises is not providing a service for Equality Act 2010 purposes: R (FG) v Kensington and Chelsea Royal London Borough Council [2024] EWHC 780 (Admin); [2024] WLR(D) 154, KBD

Local Government Lawyer: Judge urges police to “carefully consider” position and role of Family Court when determining bail conditions: Nottinghamshire County Council v The Mother & Ors (Police Bail) [2024] EWHC 666 (Fam), Fam D

Oxford Human Rights Hub: The Unkindest Cut of All? The ECtHR Declines to Intervene on Religious Slaughter: Belgian Muslims v Belgium (in French) (Application no 16760/22); Press release, ECtHR

Law & Religion UK: Inaction over antisemitic threats and Article 8 ECHR: Allouche v France (Application no. 81249/17); [2024] ECHR 305, ECtHR

And finally…

Tweet of the week

is a celebration of legal learning in schools:

 

That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

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.