Recent legal news

Legislation

A new Arbitration Act has been passed. The Arbitration Act 2025 describes itself as “An Act to amend the Arbitration Act 1996; and for connected purposes.” So it’s not a complete reboot of the main legislation on this topic, but rather a tweaking to improve its operation, which was to enable parties to settle mainly commercial disputes in a confidential manner, away from the glare of publicity which open court proceedings might involve, and in a less formal process than full-metal-jacketed litigation. Procedures, if not outcomes, are generally consensual.

Although cases are still referred to the court in some circumstances, they are mainly concerned with errors in the process or conduct of the arbitration, or because the arbitrator has got the law seriously wrong. Despite these provisions, the vast majority of commercial contract cases do not come anywhere near the courts. This is good for business, and for the rule of law which underpins it, but not necessarily for the development of the common law.

Some years ago the then Lord Chief Justice, Lord Thomas of Cwmgiedd, giving the BAILII lecture in 2016, Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration, complained that the 1996 Act, and its predecessor, in 1979, had been almost too successful in diverting disputes over the interpretation of commercial and especially maritime contracts away from the courts, depriving the common law of the opportunity to develop new precedents. He said, at para 22:

“However, the consequence has been the undermining of the means through which much of the common law’s strength — its ‘excellence’ was developed — a danger not merely to those engaged in dispute resolution in London, but more importantly to the development of the common law as the framework to underpin the international markets, trade and commerce.”

There was another problem: lack of open justice and therefore scrutiny of the decision making process (para 23):

“Quite apart from this major issue, there are other issues which arise from the resolution of disputes firmly behind closed doors — retarding public understanding of the law, and public debate over its application. A series of decisions in the courts may expose issues that call for Parliamentary scrutiny and legislative revision. A series of similar decisions in arbitral proceedings will not do so, and those issues may then carry on being taken account of in future arbitrations.”

The new Act does not address these issues, nor it seems was it intended to. If anything it makes it even harder to involve the courts. According to a note on Pinset Masons’ Out-Law blog, the new Act “enhances the powers of arbitrators and limits the ability of businesses to resurrect arguments raised in arbitration”. It provides for a default rule as to the governing law of arbitration agreements, and extends both the powers and duties of arbitrators. Tribunals can make summary awards to dispose of claims or issues that have no real prospect of succeeding.

The amendments in the 2025 Act essentially update and improve the present regime, under which the majority of disputes bypass the courts. That’s not necessarily a bad thing, given how busy and overloaded the courts are; but there might be a case for some increase in the transparency of arbitral decision-making, along lines similar to those explored in the family courts in recent years, perhaps by publishing suitably anonymised arbitral rulings on interesting points of law such as the construction of standard forms of commercial contract.

See also: Legal Futures, “Keeping us ahead of the world” — Arbitration Act receives Royal Assent

Crime and Policing

In other legislation news, the government has now published its long-awaited Crime and Policing Bill. This, in parliamentary draftsperson speak, is

“A Bill to make provision about anti-social behaviour, offensive weapons, offences against people (including sexual offences), property offences, the criminal exploitation of persons, sex offenders, stalking and public order; to make provision about powers of the police, the border force and other similar persons; to make provision about confiscation; to make provision about the police; to make provision about terrorism and national security, and about international agreements relating to crime; to make provision about the criminal liability of bodies; and for connected purposes.”

There are always connected purposes, because draftspeople don’t like loose ends and, well, you never know. There is more information in the Explanatory Notes, and see also Joshua Rozenberg, A Lawyer Writes: Crime and policing. Christmas tree or Easter egg, it’s quite a bill, which links to the numerous individual factsheets that deal with particular aspects of the Bill. It’s clear the goverment want to be seen as tough on crime, tough on the annoying things about crime, especially the ones people go on about in the news. Hence all the talk about “taking back our streets”. But in the end it all comes down to resources.

Artificial Intelligence

Meanwhile the European Union’s AI Act has begun to come into effect. According to Mishcon de Reya, the two key provisions that have taken effect concern prohibited AI practices and AI literacy.

For a helpful explainer, see their post EU AI Act begins to take effect: what to know and how to prepare

One of the big concerns about large language models (LLMs) and the development of generative AI is that the material on which the model has been trained often includes, or could include, human-generated covered by copyright. The News Media Association, which represents a large number of newspaper publishers, recently ran a campaign to Make it fAIr. It draws attention to the importance of creative industries to the economy and complains that:

“Tech companies use creative content, such as news articles, books, music, film, photography, visual art, and all kinds of creative work, to train their generative AI models.

Publishers and creators say that doing this without proper controls, transparency or fair payment is unfair and threatens their livelihoods.

Yet the government wants to change the UK’s laws to favour tech platforms so they can use British creative content to power their AI models without permission or payment unless the creators specifically say ‘no’. …

We’re calling on the government to ensure creatives are rewarded properly so as to ensure a sustainable future for AI and the creative industries.”

We hope they won’t mind us copying the above creatively crafted words to report the point they are making. The point is a good one. Other publishers have also made it.

The Publishers Assocation (of which ICLR is a member) has also responded to the government’s consultation (now closed) on copyright and AI. The government wanted to put the burden on copyright owners to opt out of an assumption that their content could be used for AI purposes, failing which it would be lawful, despite the copyright, for it to be used. Most creators of content want the requirement to be an opt-in, not an opt-out.

Land law

The housing minister, Matthew Pennycook, has promised to abolish the centuries-old “feudal-era” leasehold system in England and Wales before the end of this parliament, as the government takes the next steps towards an outright ban on new leasehold developments. (In the meantime serfs and villeins may continue to work their feudal strip of tillage and pay liege homage to the lord of their manor.) For less facetious treatment of this story, see:

Other recent items

Public Law for Everyone had a post, Could it happen here? Peter Hennessy and Andrew Blick on the ultimate ‘what if’ constitutional question, discussing the the extent to which the UK’s constitutional arrangements would be capable of withstanding an “authoritarian onslaught”. The idea is perhaps not as fanciful as might have been thought ten years ago, given what has happened since.

Spotlight on Corruption reviewed Anti-Money Laundering (AML) regulation and supervision among lawyers, in a report entitled Broken Record. While there has been some improvement, the overall picture is one of “ongoing fundamental concern”. The Solicitors Regulation Authority’s failure to land major blows against large law firms despite increased enforcement ambition, and there were high rates of non-compliance with AML rules. There were inconsistencies in the powers available to sanction non-compliance, reluctance to use the sanctions that were available, and inconsistencies in the data provided by different legal sector supervisors.

The Open Data Institute published their annual review, The ODI in 2024 — Advancing trust in data.

“Throughout 2024, the importance of artificial intelligence in all aspects of our lives continued to grow. We focused particular efforts on our data-centric AI research, becoming established as a leader in the field. … We were highly active in the broader data ecosystem across 2024, keeping data on the agenda through economic, social and political upheaval.”

The Law Commission published a supplementary consultation on Contempt of Court, largely prompted by the events of the summer, when incomplete and misleading information about the Axel Rudakubana case prompted widespread misinformation campaigns, riots and public unrest. The question then arose as to the benefit of protecting the integrity of the trial of the suspect at the expense of wider social ills. As the consultation puts it:

“There are two questions that arise as a result of the events following the attacks at Southport and the subsequent disorder: (1) the extent to which misinformation and disinformation can be countered by a public authority without risking liability for contempt of court; and (2) whether there are circumstances that would justify the publication of information that would otherwise come within scope of contempt of court liability.”

The American Bar Association (ABA) has issued a strongly worded warning about current executive threats to the “four major principles of law that have guided our country for over 200 years: Defending Judges and Courts, Acknowledging the Role of the Courts, Adhering to the Rule of Law, and Respecting the Separation of Powers and the three co-equal branches of government with distinct duties and responsibilities”. See The ABA rejects efforts to undermine the courts and the legal profession

Recent case summaries from ICLR

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

CONFLICT OF LAWS — Sovereign immunity — Employment: Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine, 06 Mar 2025 [2025] UKSC 9; [2025] WLR(D) 133, SC(E)

CONTRACT — Construction — Insurance policy: Scotbeef Ltd v D&S Storage Ltd, 05 Mar 2025 [2025] EWCA Civ 203; [2025] WLR(D) 136, CA

COSTS — Discretion of court — Qualified one-way costs shifting: BB v Khayyat, 28 Feb 2025 [2025] EWHC 443 (KB); [2025] WLR(D) 131, KBD

CRIME — Sentence — Nuisance: R v Hallam (Julian), 07 Mar 2025 [2025] EWCA Crim 199; [2025] WLR(D) 144, CA

EDUCATION — School — Exclusion: R (TZA) v A Secondary School, 04 Mar 2025 [2025] EWCA Civ 200; [2025] WLR(D) 128, CA

EUROPEAN UNION — Free competition — State aid: Rex (British Gas Trading Ltd) v Secretary of State for Energy Security and Net Zero (formerly Business, Energy and Industrial Strategy), 05 Mar 2025 [2025] EWCA Civ 209; [2025] WLR(D) 135, CA

HUMAN RIGHTS — Freedom of expression — Interference with: R (GB News Ltd) v Office of Communications, 28 Feb 2025 [2025] EWHC 460 (Admin); [2025] WLR(D) 129, KBD

HUMAN RIGHTS — Respect for private and family life — Duty to disclose previous convictions: In re JR 123, 06 Mar 2025 [2025] UKSC 8; [2025] WLR(D) 141, SC(NI)

IMMIGRATION — Human trafficking — Victim: R (AAM) v Secretary of State for the Home Department, 03 Mar 2025 [2025] EWHC 447 (Admin); [2025] WLR(D) 132, KBD

MEDICAL PRACTITIONER — Medical Practitioners Tribunal — Appeal: Nathadwarawala v General Medical Council, 28 Feb 2025 [2025] EWHC 459 (Admin); [2025] WLR(D) 126, KBD

Recent case comments on ICLR

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

QMLR: Disentangling symptoms and their causes: Tuffin v University Hospitals Coventry and Warwickshire NHS Trust [2024] EWHC 3318 (KB), KBD

UK Human Rights Blog: Gambling with Consent: Free, Specific, and Informed Consent in Data Protection Law: RTM v Bonne Terre Ltd [2025] EWHC 111 (KB), KBD

Nearly Legal: Case notes in passing — adverse possession rules, sale and rent-back, and the evidential burden in service charge disputes: Brown v Ridley [2025] UKSC 7; [2025] WLR(D) 118, SC(E)

2 Hare Court: El-Khouri [2025]: Extradition Offences and the Rule of Double Criminality: El-Khouri v Government of the United States of America [2025] UKSC 3; [2025] 2 WLR 232; [2025] WLR(D) 88, SC(E)

12 King’s Bench Walk: The Importance of Precise and Particularised Points of Dispute: St Francis Group 1 Limited & Ors v John Thomas Kelly & Anor [2025] EWHC 125 (SCCO), Costs

Legal Futures: Law firm’s partnership agreement was not varied, High Court rules: Mariampillai v Sooben [2025] EWHC 394 (Ch), Ch D

QMLR: Court of Appeal Gives Guidance as to Correct Approach to Anonymity Orders Until Outcome of PMC Appeal: PMC (a child) v A Local Health Board [2025] EWCA Civ 176, CA

Mental Capacity Law and Policy: Deprivation of liberty, children, care orders, and overlooked caselaw: a tangle for the Court of Appeal: West Sussex County Council v AB [2025] EWCA Civ 132, CA

Wilberforce chambers: ‘Rep Sol’ instead of ‘Rep Ben’? When to appoint a solicitor as a representative party: National Westminster Bank PLC & Ors v Ludlow Trust Company Ltd & Ors [2023] EWHC 2532 (Ch); [2024] WTLR 239, Ch D

Tanfield chambers: Royal contemnors and video evidence: Mobile Telecommunications Co KSCP v Al Saud [2024] EWHC 3459 (Ch), Ch D

St Philips barristers: Santa? Reflections on Hirachand v Hirachand [2024] UKSC 43; [2025] 2 WLR 51; [2024] WLR(D) 565, SC(E)

Mental Capacity Law and Policy: Does the Court of Protection have jurisdiction over children? Answer yes — up to a point (even when they have moved abroad): Irwin Mitchell Trust Corporation Ltd v KS & Ors [2025] EWCOP 7 (T2), Ct of Protection

UK Human Rights Blog: Preaching hate: free speech, religion and the Human Rights Act: Sleeper v Comr of Police of the Metropolis [2025] EWHC 151 (KB), KBD

Cloisters chambers: Manifestation of belief — Higgs v Farmor’s School [2025] EWCA Civ 109; [2025] WLR(D) 87, CA

Doughty Street chambers: Court orders “short sharp mediation” — “capable of cracking even the hardest nuts”: DKH Retail Limited & Ors v City Football Group Limited [2024] EWHC 3231 (Ch), Ch D

UK Human Rights Blog: Supreme Court rules Appellants were British all along: R (N3) v Secretary of State for the Home Department [2025] UKSC 6; [2025] WLR(D) 111, SC(E)

And finally…

Witchcraft?

Many defendants are bad people, of course. “But probably none are literally witches,” reported Lowering the Bar last month, citing the New Mexico case of State v. Lensegrav, No. S-1-SC-39542 (N.M. Feb. 20, 2025). The opening paragraph seems worthy of the Opening Lines of Judgments annual competition and we will be referring it to Civil Litigation Brief accordingly. Here is goes:

“In this case of severe and pervasive prosecutorial misconduct, exacerbated by a lackluster defense, we hold that an Assistant District Attorney who uses opening statements to expose the jury to incriminating allegations from a non-testifying codefendant, repeatedly accuses a defendant of witchcraft, and relies on inflammatory and inadmissible evidence throughout the case, has knowingly committed misconduct so unfairly prejudicial and with such willful disregard for a reversal on appeal that retrial is barred by double jeopardy under Article II, Section 15 of the New Mexico Constitution.”

OK you can put away your broomsticks. That’s it for this week. Thanks for reading, and make sure you’re signed up for our email alerts. Don’t forget you can also now find ICLR on BlueSky.

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: Houses of Parliament, via Shutterstock.