Traditional East London funeral carriage, photo via Shutterstock

Probate

Call for evidence

The Justice Select Committee has launched a call for evidence about the Probate Service, which it says has been experiencing significant delays.

“There are wider concerns about how effectively beneficiaries, executors and the bereaved are supported through the process and protected from rogue traders. The inquiry will take evidence on capacity, resources and delays across the probate service, and the impact of digitisation and centralisation, including the effectiveness of the online probate portal. The inquiry is interested in people’s experiences of applying for probate including how the administration of probate could be improved for people who are already coming to terms with the loss of a loved one.”

The online probate portal when launched was trumpeted as a major example of the digitisation of previously paper-based justice services, one of the many projects involved in the massive HMCTS Reform modernisation programme which has been running since 2016. It is repeatedly re-trumpeted as one of the bits that has actually worked well. According to HMCTS

“by December 2022 digital uptake had increased to 80% of all probate applications received online with 94% of personal applicants rating the service good or very good”.

But the Justice Committee evidently think otherwise. It wants to know “Does the probate portal provide improved access to justice and value-for-money?” However, it would be unfair to blame the digital portal for delays in processing applications which might be occurring elsewhere. Given the delays, the committee asks “Does the probate service have the necessary resources, capabilities, and expertise to process applications for probate, including complex probate, in a timely manner?”

The Justice Committee invites written submissions answering these and other questions by 22 January 2024.

Family law

Judge claims to see through transparency

Don’t be vague, ask His Honour Judge Haigh what he thinks about transparency in the family courts. He’s not a fan, though in his case meant well no doubt.

“If you want to know my view on the transparency project, it is not supportive. I have always felt these cases are deeply private, and my judgments are there really for the parents, to help them, to help the families, they are not for public consumption or to allow press and journalists to further their journalistic ambitions — [….] — I have said my piece to anyone who will listen to me about the transparency project. I have listened to what the children’s … The Youth Justice Team have said about this. And been ignored. By people who are driving this forward. And I speak as a virtual lone voice. But I strongly hold this view, it is my strongly held view. I think we are failing children by putting all this stuff on the internet, and I am very unconvinced about the motives of some of the journalists. Do not forget what they do. They sell copy. They have careers to pursue.”

To clarify: in a series of posts the Transparency Project has been able to reveal what a front-line family judge really thinks of the transparency agenda — the trend, led from the top by successive Presidents of the Family Division, over the last 15 years, towards greater open justice in traditionally secretive family courts — and which he appears to confuse with a legal educational charity, the Transparency Project (to be fair, it’s an honest and commonly made mistake). The Project (of which your present author is a trustee) was founded to promote open justice and transparency (clarity, better understanding) and legal education in a court system bedevilled by accusations of “secret courts” in which draconian life-changing decisions, even life-and-death decisions, appear to be taken without proper scrutiny or public accountability. So it was said. Hence the press towards openness. Hence, too, the President’s Transparency Review and the current activities of various committees in his Transparency Implementation Group (TIG).

The counter argument is always: what about the children? What about their right to protection from the glare of publicity? And while they certainly have rights, as do other vulnerable parties seeking privacy in the family courts, including the right to family life under article 8 of the ECHR, they need to be balanced against other rights, notably the right (under article 10) of the press to report, and of the public to read about, what the courts are doing in their name. It is not the case, as the judge appears to have thought, that the children’s interests override those of the media, simply because the case involves family law. Media access is a procedural, not a child welfare decision. This calls for a balancing exercise, according to well known principles.

All of these issues emerge with startling clarity from a reading, not only of a blog post by a journalist, Louise Tickle, who sought to report the proceedings, and commentary on the case by the chair of the Transparency Project, Lucy Reed KC, but also from a transcript of the part of a hearing from which another journalist, Suzanne Martin, was excluded and in which her motives and professionalism appear to have been questioned behind her back. (That transcript was ordered following a decision by Lieven J allowing an appeal from Judge Haigh’s decision to bar Tickle from reporting another part of the hearing.) The whole story has also been summarised and explained in a post by Joshua Rozenberg.

Lucy Reed KC: Transcript reveals what one judge really thinks of transparency

Louise Tickle: When a judge prefers his own biases to the law, all is lost

Joshua Rozenberg: Judge erred in blocking reporter

Media law

Slapp unhappy?

The Foreign Policy Centre (FPC), the Justice for Journalists Foundation (JFJ) and the International Bar Association’s Human Rights Institute (IBAHRI) held the third UK Anti-SLAPP Conference on 27 and 28 November 2023, both online and in-person in London. The theme of this year’s conference was ‘Tracking Implementation’.

The conference noted that the government had taken some limited measures to tackle the problem of Strategic Litigation Against Public Participation in the recently enacted Economic Crime and Corporate Transparency Act 2023, but speakers suggested this did not go far enough. Section 194 provides for rules of court to enable such claims (as defined in section 195) to be struck out if they appear to be an abuse of process merely to silence legitimate investigation and reporting of economic crime. The conference wanted the government to go further and provide universal SLAPPs protection, regardless of the subject matter, ideally in line with the Model UK Anti-SLAPP Law, which already has widespread support.

Moreover, by the time the case gets to court, where it might be struck out, the harm has often already been done, in terms of silencing critics and preventing public scrutiny. What was needed was more regulatory action against the solicitors and barristers who were enabling this litigation abuse. The Solicitors Regulation Authority (SRA) is investigating a number of cases of alleged abusive conduct by firms.

For further reporting of the conference, see Legal Futures: “Shamelessness” of SLAPPs has grown but still no disciplinary action

See also Joshua Rozenberg: How to slap SLAPPs

Employment law

Seasonal inappropriateness

As firms and chambers look forward to the festive gatherings they have booked, probably weeks ago, to mark the holiday season, it might be wise to remind people not just of the date and venue but also of the need not to bring ignominy, shame and even liability upon their organisation through inappropriate personal conduct while under the possible, er, alcofluence of incohol. Hic! (Shorry luv.) You get the picture.

Kingsley Napley have this timely warning: Tis’ the season to be jolly, but avoid the pitfalls! After a survey of the possible areas of concern, including discrimination, health & safety, and damage to reputation, they conclude:

“Finally, it is also worthy of note that there has been a societal culture shift over recent years in what is seen to be appropriate or acceptable behaviour. … We would recommend that such training is specifically targeted at those with managerial responsibilities. It is not about being a grinch but about being aware of risks inherent to the imbalance of power at play.”

Recent case summaries from ICLR

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

CHARITY — Cy-près doctrine — Trust funds: Attorney General v Zedra Fiduciary Services (UK) Ltd, 15 Nov 2023 [2023] EWCA Civ 1332; [2023] WLR(D) 483, CA

ENVIRONMENT — Protection — Environmental permit: R (Suez Recycling and Recovery UK Ltd) v Environment Agency, 28 Nov 2023 [2023] EWHC 3012 (Admin); [2023] WLR(D) 497, KBD

ESTOPPEL — Per rem judicatam — Issue estoppel: Ajaz v Homerton University Hospital NHS Foundation Trust, 24 Nov 2023 [2023] EAT 142; [2023] WLR(D) 496, EAT

NATIONALITY — British citizenship — Acquisition: R (Murugason) v Secretary of State for the Home Department, 16 Nov 2023 [2023] EWCA Civ 1336; [2023] WLR(D) 475, CA

PRACTICE — Case management — Alternative dispute resolution: Churchill v Merthyr Tydfil County Borough Council, 29 Nov 2023 [2023] EWCA Civ 1416; [2023] WLR(D) 498, CA

RATING — Non-domestic rates — Rateable occupation: Total Sprint Ltd v Swale Borough Council, 29 Nov 2023 [2023] EWHC 2968 (Admin); [2023] WLR(D) 499, KBD

TELECOMMUNICATIONS — Electronic communications networks and services — Regulation: Sky UK Ltd v Office of Communications, 15 Nov 2023 [2023] CAT 70; [2023] WLR(D) 487, CAT

Recent case comments on ICLR

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

Panopticon blog: “Exemption means Exemption” doesn’t cut it for the Court of Appeal: aggregation of exemptions is permitted under FOIA: Department for Business and Trade v Information Commissioner & Anor [2023] EWCA Civ 1378, CA

Free Movement: Upper Tribunal failed to properly assess whether error of law was material in asylum appeal: ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282, CA

Free Movement: Late evidence from the Home Office can be admitted in an appeal where the appellant was aware of it: Kanhirakandan v The Secretary of State for the Home Department [2023] EWCA Civ 1298, CA

UK Human Rights Blog: Is an Artificial Neural Network a computer programme ineligible for patent protection? Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks [2023] EWHC 2948 (Ch), Ch D

Guildhill Chambers: Back to the drawing board for patient autonomy? Informed consent following McCulloch: McCulloch v Forth Valley Health Board [2023] UKSC 26; [2023] 3 WLR 321, SC(Sc)

Free Movement: Court of Appeal dismisses appeal on interpretation of nationality law: Rex (Murugason) v Secretary of State for the Home Department [2023] EWCA Civ 1336; [2023] WLR(D) 475, CA

Free Movement: Court of Appeal says deportation of mother of British child not “unduly harsh”: FN (Burundi) v Secretary of State for the Home Department [2023] EWCA Civ 1350, CA

Landmark Chambers: High Court criticises redaction of junior civil servant names in government disclosure: R (IAB) v Secretary of State for the Home Department [2023] EWHC 2930 (Admin); [2023] WLR(D) 485, KBD

Local Government Lawyer: When is a resignation not a resignation? Omar v Epping Forest District Citizens Advice [2023] EAT 132; [2023] WLR(D) 454, EAT

Electronic Immigration Network: Court of Appeal: ‘Very significant obstacles to integration’ is an objective test: NC v Secretary of State for the Home Department [2023] EWCA Civ 1379, CA

Inforrm’s Blog: Davidoff v Google LLC, A comprehensive restatement of the principles governing Norwich Pharmacal Applications: Davidoff v Google LLC [2023] EWHC 1958 (KB), KBD

Law & Religion UK: Headscarves at the ECJ again: OP v Commune d’Ans (Case C-148/22); EU:C:2023:924, ECJ

Devereux chambers: Sizing up the competition — The Upper Tribunal considers the public authority VAT exemption: Northumbria Healthcare NHS Foundation Trust v Revenue and Customs Comrs [2022] UKUT 267 (TCC); [2022] STC 1869, UT (TCC)

New Square Chambers: Deaths, daughters-in-law, and delay in 1975 Act claims: Archibald (estate of) v Stuart [2023] EWHC 2515 (Ch), Ch D

St John’s Buildings: CPR witness statements — lost in translation? Afzal v UK Insurance Ltd [2023] EWHC 1730 (KB), KBD

Mountford Chambers: Bad Optics: The High Court Focuses on Panel Member’s Apparent Bias: Suleman v General Optical Council [2023] EWHC 2110 (Admin), KBD

Out-Law: UK appeal court dismisses £1.3m award over share purchase agreement wording: Decision Inc Holdings Proprietary Ltd v Garbett [2023] EWCA Civ 1284; [2023] 2 All ER (Comm) 800; [2023] WLR(D) 452, CA

Panopticon blog: “Exemption means Exemption” doesn’t cut it for the Court of Appeal: aggregation of exemptions is permitted under FOIA: Montague v Information Comr [2023] EWCA Civ 1378; [2023] WLR(D) 490, CA

Nearly Legal: Saying you are broke isn’t enough to avoid a duty — suitable accommodation and resources: R (Elkundi) v Birmingham City Council [2023] UKSC 45, SC(E)

Old Square Chambers: Applicability of Section 33 Limitation Act 1980 to claims brought pursuant to the Fatal Accidents Act 1976: Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB), KBD

Gatehouse Chambers: Contemnor required to attend an in person hearing for cross examination: Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 2234 (Comm); [2023] WLR(D) 415, KBD

And Finally…

Tweet of the week

is obiter dicta on the doubtful use of AI for legal research

That’s it for now. Thanks for all your tweets and toots and threads. May your blue sky remain unclouded.

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.