Politics

In with the new…

Alex Chalk MP was appointed Secretary of State for Justice and Lord Chancellor on 21 April 2023 following the resignation of Dominic Raab MP. Chalk is a barrister and was previously Solicitor General as well as having occupied a couple of junior ministerial roles in the Ministry of Justice. His immediately previous ministerial job was in the Ministry of Defence. For a full lineup of his new team, see Russell Webster, Who’s who at the MoJ?

Chalk inherits from Raab a justice system beset with problems, including a massive backlog of criminal cases, a lack of judges and barristers to deal with them, overcrowded prisons, crumbling courts, a demoralised judiciary, and the legacy of policies designed more for political expediency than solving any of these problems.

A full analysis of the problems facing criminal justice can be found in a recent Institute For Government report, Performance Tracker 2022/23: Spring update — Criminal courts

President of the Law Society Lubna Shuja commented:

“Alex Chalk KC is the tenth justice secretary to be appointed in ten years. He inherits an even worse justice crisis than any of his recent predecessors.

Chair of the Bar Council Nick Vineall KC commented:

“Dominic Raab leaves the Ministry of Justice with the criminal justice system in a parlous state and long delays in the family courts. It is time for a fresh start.

“The court backlogs continue to hinder timely access to justice for thousands and cause misery for all those working in the justice system, while anti-lawyer rhetoric undermines public confidence and adherence to the rule of law.”

… and out with the old

Raab resigned in response to findings in an official report by Adam Tolley KC following an inquiry into allegations that he had bullied staff in the various departments of government in which he has served in recent years, including Justice and the Foreign Office. Raab did not go quietly: his churlish resignation letter was followed by newspaper articles and interviews in which he lashed out at the ill-defined forces with a sinister agenda that conspired to bring him down:

Raab’s dubious legacy as Lord Chancellor includes the ill-fated Bill of Rights Bill, an attempt to redraw the boundaries of human rights, as well as other legislative attempts to fix things that probably weren’t broken (while failing to fix what was). For someone with the reputation of being a control freak, he also seems to have been unusually incapable of taking decisive action.

A detailed charge sheet has been prepared by Joshua Rozenberg, What Raab did wrong: Not just the bullying — what about his record in government? He says:

“That Raab lasted as long as he did, while remaining deputy prime minister, demonstrates the dearth of talent among those appointed to high public office.”

David Allen Green, on his Law and Policy Blog, also assesses The significance of the resignation of Dominic Raab, who in his opinion was “perhaps the worst Lord Chancellor of modern times. (Yes, worse even than Christopher Grayling or Elizabeth Truss.)”

As to that last point, we are not sure: it would be hard to exceed the long term damage done by Grayling with his dismantling of legal aid and the probation services.

Media law

Fox outfoxed

They say truth shall have dominion. Across the pond, in the US of A, that came to pass when, as Inforrm’s latest roundup informs us:

“Fox Corporation has agreed to pay Dominion Voting Systems $787.5 million (£630m) to settle a landmark defamation suit brought by the election technology company over claims repeatedly aired on Fox News suggesting its voting machines were involved in a conspiracy to rig the 2020 US presidential election.”

It seems that Fox news presenters not only did not believe the lies about the 2020 election (claims that Dominion’s voting machines were rigged) but deliberately published them knowing them to be lies, in order to flatter their dwindling audience’s irrational expectations.

The libel claim faced a high bar: the need under US law to prove “actual malice”. This derives from the case of The New York Times Co. v. Sullivan 376 U.S. 254 (1964), when the US Supreme Court ruled unanimously that the First Amendment protected publishers as long as a false claim about a public figure was not made with “actual malice”, which it defined as “knowledge that it was false or with reckless disregard of whether it was false or not”.

According the Press Gazette:

“Internal Fox communications obtained during the discovery process and published by the Dominion team already shed rare light on the inner workings at the influential, controversial news network.

Under US law, to win a libel suit against a news publisher a plaintiff would have to demonstrate not only that an outlet spread false information but that it had acted with “actual malice” in doing so.

Despite that high bar, some commentators suggested Dominion had a better than usual chance of winning its defamation case. Judge Davis had already ruled last month that 20 statements made about Dominion on Fox News in 2020 were false.”

There is a useful (and entertaining) explainer of the case and its background in a recent episode of The Problem with Jon Stewart, Liar, Liar Network On Fire: The Legal Case Against Fox News (YouTube) in which Stewart discusses the case with RonNell Anderson Jones, Professor of Law at the University of Utah.

Judiciary

Judicial Attitudes Survey 2022

According to the fourth Judicial Attitudes Survey, compiled by Professor Cheryl Thomas KC of the UCL Judicial Institute, almost all judges feel a strong personal attachment to being a member of the judiciary and feel they provide an important service to society, but salaried judges felt this attachment more strongly than fee-paid office holders. But they don’t necessarily feel valued by government and the society they serve.

A majority of District Judges (County and Magistrates Court), Circuit Judges and First Tier Tribunal Judges said they were less respected by society in 2022 than in 2020, when the last such survey was conducted. Only 8% of salaried and only 14% of fee-paid office holders felt valued by the government.

Almost two-thirds (64%) of salaried judges said that working conditions were worse in 2022 than they were in 2020, far more so than fee-paid judicial office holders (37%). Almost every salaried judge said that the time to discuss work with colleagues (94%) and training (91%) were important working conditions for them, and three-quarters of salaried judges (76%) also said that support for dealing with stressful conditions at work was important. District Judges (County and Mags) and Circuit Judges are the most time poor, with the lowest levels of time to discuss work with colleagues.

Other recent items

Two ways to address the asylum backlog and improve access to justice

Jo Hynes on the Free Movement blog explains that, while the government’s Illegal Migration Bill will do more harm than good, there are two ways the government could address the asylum backlog and promote access to justice: by increasing the productivity of Home Office asylum decision-makers; and by simplifying and prioritising some of the procedures involved in asylum processing.

Speech by the Master of the Rolls — The future of London as a pre-eminent dispute resolution centre: opportunities and challenges

In the McNair Lecture given at Lincoln’s Inn last week, Sir Geoffrey Vos MR banged the drum for the English legal system, its incorruptible judges and a common law system that is “peculiarly well adapted to commercial dispute resolution”. But we need to remain competitive:

“To cut a long story short, there are now many more options for international business when it comes to dispute resolution. That makes the environment in which London is operating more competitive, but perhaps also more interesting and more exciting. That is certainly the case when the situation is viewed, as I shall in a minute, from a technological angle.”

By technology, he means of course blockchain, crypto, AI, and other exciting (if a teensy bit daunting) developments. But, he says,

“The prizes will, once again, go to the jurisdictions that adapt quickly enough (a) to meet the needs of those trading digitally, and (b) to make maximum, but of course constructive, use of the developments in AI.”

Game Changing Corporate Offence of Failure to Prevent Fraud: RPC Analysis and Practical Guidance

Sam Tate, Partner and Thomas Jenkins, Senior Associate of Reynolds Porter Chamberlain provide an explainer on RPC Perspectives about the new “failure to prevent fraud” offence introduced by an amendment to the Economic Crime and Corporate Transparency Bill.

“When enacted, this offence promises to become an important tool for UK economic crime prosecutors and is likely to see major changes to the compliance programmes of large companies in the UK and overseas”.

See also, on this: Joshua Rozenberg, Fraudsters Beware

Statistics concerning the judicial activity of the Court of Justice (ECJ)

A brief overview of the main statistical trends over the past year provided by Marc-André Gaudissart, Deputy Registrar of the Court of Justice, who looks at the subject matter, origin and nature of the cases brought before the Court in 2022 and provides some guidance on the data relating to the cases closed by the Court.

Vardy v Rooney: played for laughs, marked for trade

The UK Human Rights Blog reports that Rebecca Vardy — whose failed libel claim against Coleen Rooney (Vardy v Rooney [2022] EWHC 2017 (QB)) is the subject of a West End play entitled ‘Vardy v Rooney: The Wagatha Christie Trial’ — has now trademarked the expression “Wagatha Christie”, enabling her to monetise her involvement in the courtroom drama, if not the staged version, and might thereby cause the playmakers some problems.

In other news, Legal Cheek reports that the actor playing the judge in the play, which currently showing at The Ambassadors Theatre, is former barrister Verna Vyas, who specialised in criminal defence law at 4 Breams Buildings.

From Mock Trials to Real Trials…

Another tale of barristerial career development comes from the Bar Council’s blog where Eve Robinson explains how participating in the Citizenship Foundation (as it then was) Mock Trial Competition as a school pupil eventually sparked her journey to a career at the Bar.

“After the Magistrates’ competition in Year 9, I went on to participate in the Bar Mock Trial (Crown Court) Competition whilst in Year 12 and during my two years of Sixth Form, mentored the Year 9 students with their competitions too. I well and truly caught the Barrister bug, which also led me to the public gallery of the Old Bailey with my Dad one cold December day in 2011, to watch the trial of Gary Dobson and David Norris for the murder of Stephen Lawrence. For me, this competition very much planted the seed that being on my feet, in Court, was what I was going to work hard from then on in to achieve.”

Recent case summaries from ICLR

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

ADOPTION — Adoption order — Leave to oppose: In re M (A Child), 18 Apr 2023 [2023] EWCA Civ 404; [2023] WLR(D) 179, CA

CONFIDENTIAL INFORMATION — Breach of confidence — Injunction: Armstrong Watson LLP v Persons Unknown, 31 Mar 2023 [2023] EWHC 762 (KB); [2023] WLR(D) 184, KBD; [2023] EWHC 921 (KB), KBD

CONTEMPT OF COURT — Inferior court — Parole Board: R (Bailey) v Secretary of State for Justice, 05 Apr 2023 [2023] EWHC 821 (Admin); [2023] WLR(D) 173, KBD

EUROPEAN UNION — Social security — Disability living allowance: Harrington v Secretary of State for Work and Pensions, 21 Apr 2023 [2023] EWCA Civ 433; [2023] WLR(D) 185, CA

FINANCIAL SERVICES — Ombudsman scheme — Limitation: Shop Direct Finance Co Ltd v Official Receiver, 05 Apr 2023 [2023] EWCA Civ 367; [2023] WLR(D) 180, CA

INDUSTRIAL RELATIONS — Employment tribunals — Early conciliation: Clark v Sainsbury’s Supermarkets Ltd, 06 Apr 2023 [2023] EWCA Civ 386; [2023] WLR(D) 172, CA

PRACTICE — Family proceedings — Domestic abuse: A v B (Practice Note) (D v E), 05 Apr 2023 [2023] EWCA Civ 360; [2023] WLR(D) 171, CA

REVENUE — Corporation tax — Capital allowances: London Luton Hotel BPRA Property Fund LLP v Revenue and Customs Comrs, 04 Apr 2023 [2023] EWCA Civ 362; [2023] WLR(D) 168, CA

Recent case comments on ICLR

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

12 King’s Bench Walk: Negligence and sports injuries: common thread: Czernuszka v King [2023] EWHC 380 (KB); [2023] 4 WLR 26, KBD

3PB chambers: Tribunals remain “open to the difficult” … but perhaps not the persistently uncooperative: Smith v Tesco Stores Ltd [2023] EAT 11, EAT

A Lawyer Writes: Raab acted unlawfully, court confirms: R (Bailey) v Secretary of State for Justice [2023] EWHC 821 (Admin), KBD

Becket Chambers: Spousal applications for reasonable financial provision under section 1 (1) (a) of the Inheritance Act 1975: Law and procedure: Kaur v Estate of Karnail Singh [2023] EWHC 304 (Fam), Fam D

Blackstone Chambers: LLC Synesis v Secretary of State for Foreign, Commonwealth and Development Affairs: LLC Synesis v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] EWHC 541 (Admin); [2023] WLR(D) 137, QBD

Doughty Street Chambers: Dove (Part 1): Jamieson Inquests, Causation, and Conclusions; Dove (Part 2): Article 2 ECHR, Rabone, and Responsibility: Dove v HM Assistant Coroner for Teesside and Hartlepool [2023] EWCA Civ 289, CA

Drystone Chambers: What factors are relevant and admissible to establish that driving is dangerous? R v Holder (Kai) [2023] EWCA Crim 5; [2023] 4 WLR 14; [2023] WLR(D) 19, CA

Free Movement: Judicial Review and Courts Act 2022 ouster clause found effective: R (Oceana) v Upper Tribunal (Immigration And Asylum Chamber) [2023] EWHC 791 (Admin), KBD

Garden Court Chambers: Afghan children and their families abandoned in remote hotels following High Court ruling: R (HZ) v Secretary of State for the Home Department [2023] EWHC 660 (Admin); [2023] WLR(D) 162, KBD

Gatehouse Chambers: When undue influence and mutual wills collide: Naidoo v Barton; In re Estate of Naidoo [2023] EWHC 500 (Ch); [2023] WLR(D) 124, Ch D

Hailsham chambers: Wasted Costs in the Commercial Court — An Emphatic Decision in Favour of the Respondent Lawyers: King v Stiefel [2023] EWHC 453 (Comm), KBD

Inforrm’s blog: Case Law: FGX v Gaunt, Damages for “image-based abuse”: FGX v Gaunt [2023] EWHC 419 (KB), KBD

Littleton chambers: Fraud and indemnity costs — no presumption; and polemicists beware! Pisante v Logothetis [2022] EWHC 2575 (Comm), KBD

Local Government Lawyer: Adequacy of reasons and the approach to clarification: In re C (Children) [2023] EWCA Civ 334; [2023] WLR(D) 174, CA

Pink Tape: An appeal in an end-of-life case with broader application: Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331; [2023] WLR(D) 166, CA

Pump Court Chambers: Part 36: is there any value in a split liability offer? Mundy v TUI UK Ltd [2023] EWHC 385 (Ch), Ch D

Ropewalk Chambers: Referral Fees and Illegality: Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm), KBD

RPC Perspectives: Expenditure incurred on the construction of a nuclear deconversion facility did not qualify for capital allowances: Urenco Chemplants Ltd v Revenue and Customs Comrs [2022] EWCA Civ 1587; [2023] STC 54; [2022] WLR(D) 478, CA

The Secret Barrister: How do we force cowardly murderers to face up to what they have done? R v Cashman (Thomas) Sentencing remarks, Crown Ct

Transparency Project: Anonymisation of a young adult applicant for judicial review about section 20: TT v Essex County Council [2023] EWHC 826 (Admin), KBD

UK Human Rights Blog: Covid and Free Speech in the High Court: Mohammad Adil v General Medical Council [2023] EWHC 797 (Admin), KBD

ICLR news

We’re hiring!

The Incorporated Council of Law Reporting for England and Wales (ICLR) is looking for a new law reporter. It’s an important and responsible job, selecting and reporting those significant cases decided by the senior courts that change or clarify the law. To find out more: see

And finally…

Tweet of the week

is from law professor James Lee, on how to make a legal reading list more tempting:

This has the makings of an excellent parlour game for Friday afternoon tutorials.

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.

Featured image: photo of Lincoln’s Inn by Paul Magrath.