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The Times

Tuesday, October 25 2016

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

New Brief Premium

  • Court modernisation threatens judicial independence, argues Bar chief Chantal-Aimee Doerries, QC
  • Breaking up is costly to do – family courts head for crisis


  • Government backs down over libel costs
  • Survey: Businesses ignorant of consumer contract law
  • Judge dismisses bid to extradite TV star on murder charge
  • Taxman ‘failing to use powers’ to crack down on avoidance
  • MPs call on Obama to block hacker extradition
  • Lawyers condemn South Africa’s withdrawal from criminal court
  • Comment: Fast-track payouts for birth injuries – a poor sticking plaster
  • Blue Bag diary: Opening shots in legal battle over press freedom

Tweet us @TimesLaw with your views.

Story of the Day

Government backs down over libel costs

Ministers have backed down over controversial plans to make newspapers pay libel costs even when they win cases, report Jill Sherman and Frances Gibb in The Times.

The proposal would have allowed anyone to claim that a local or national publication had published false and damaging allegations, knowing that the defendant newspaper would probably have to pay court costs -- often running to millions of pounds -- even if it won the case.

Westminster sources revealed last night that the “punitive elements” of Section 40 of the Crime and Courts Act “will not go ahead”.

The change of tack came on the eve of a decision to approve a new regulatory body. Today the Press Regulation Panel -- established after the Leveson inquiry into the media -- is set to endorse Impress, which has few members and is funded by the former motor-racing mogul Max Mosley.

Most national newspapers, including The Times, Daily Mail and The Daily Telegraph, have instead signed up to a voluntary independent body, Ipso, which is not recognised by the government.

Ministers had hoped to cajole newspapers into registering with the new body by threatening to implement Section 40 for those who refused. Instead Karen Bradley, the culture secretary, opened the way yesterday for a more lenient approach.

See Blue Bag below

News Round Up
Survey: Businesses ignorant of consumer contract law

Most British businesses are ignorant of laws that protect consumers against unfair terms of contract, the competition watchdog revealed yesterday.

Some 54 per cent of businesses surveyed said they did not fully understand the rules covering the fairness of contractual provisions – with nearly a fifth admitting to never having heard of the provisions.

Researchers at the Competition and Markets Authority(CMA) found that only 45 per cent of business executives claimed to have a good understanding of the rules. While nearly a fifth, 18 per cent, had never heard of provisions regarding unfair terms of contract.

The CMA said that many businesses assumed that a signed contract was final without realising that terms could not be enforced against a consumer if they were found to be unfair. Smaller businesses were also routinely guilty of copying terms from competitors or larger companies, incorrectly assuming that they would be automatically fair and legally binding.

The CMA study found that 67 per cent of UK businesses sold to consumers, with most of these using some form of terms and conditions. The rules on using unfair terms are set down in the Consumer Rights Act (CRA) 2015. Yet only 15 per cent of businesses said they were familiar with the legislation.

“Consumers have a right to be treated fairly – and businesses need to know that they can’t rely on their terms and conditions if they’re not fair,” said Paul Latham, a director at the CMA. “We know that the majority of businesses want to do the right thing by their customers, but it’s worrying that many businesses are not familiar with the law.”

Leon Livermore, chief executive of the Chartered Trading Standards Institute, said: “Consumers often have little choice but to accept terms and conditions, so it’s vital to know that they’re getting a fair deal.”

The CMA yesterday issued guidance for businesses setting out their obligations.

Judge dismisses bid to extradite TV star on murder charge

A judge yesterday threw out what he called a “dodgy” extradition case against a television quiz show star who had claimed that he killed a homeless thief in Amsterdam almost 30 years ago.

CJ de Mooi (pictured), a regular on the BBC Two show Eggheads, claimed in an autobiography that he punched a knife-wielding mugger and threw his body into a canal while sleeping rough in the Dutch capital in 1988.

But a judge in London dismissed the case because the Dutch authorities had not issued a domestic warrant in the Netherlands.

Last year de Mooi, whose real name is Joseph Connagh, said: “I fully suspect I killed him.” as he recalled the incident in his book. The quiz show star wrote: “I was in a phone box and this old guy, obviously a massive drug user, came up behind me with a knife in his hand. He told me to turn around, open my bag and give him whatever was inside. “I punched him so hard in the face, knocked the knife out of his hand and threw him in the canal. I fully suspect I killed him. I’ve no idea what happened to him.”

Dutch police launched an investigation and issued a European arrest warrant for de Mooi, 46, who was arrested on arrival at Heathrow airport last month. He was wanted in Holland for questioning over accusations of manslaughter, murder, assault and assault by battery.

Yesterday the European arrest warrant was discharged at Westminster magistrates’ court. Granting the application, Judge Khalid Quereshi said: “It was a classic case where in the absence of a domestic warrant an EAW warrant should not have been issued. It’s a dodgy case.

“In the circumstances, in the absence of a domestic warrant and the absence of any decision to charge, I dismiss the European arrest warrant in the name of Joseph Connagh.”

The judge ordered that a £5,000 security paid by de Mooi should be returned to him.

Taxman ‘failing to use powers’ to crack down on avoidance

Tax officials are failing to use existing tools against tax avoidance schemes while seeking to expand their powers, City of London lawyers claimed yesterday.

Customs and Revenue has issued fewer than five conduct notices to promoters of tax avoidance gambits since the power was introduced two years ago, according to RPC, a Square Mile practice that is rapidly becoming the bane of the taxman.

The lawyers claimed that not only was HMRC not taking full advantage of its ability to issue conduct notice, it was also failing to invoke another weapon, the general anti-abuse rule, which came into force under the Finance Act 2013.

According to Adam Craggs, a partner at RPC, it is understood that no cases have been brought under the rule. “The huge range of swingeing powers HMRC has been given in recent years may have helped its image,” said Craggs, “but to date they have been little used as an enforcement tool, and some may question whether public time and resources could have been better spent.”

Conduct notices are designed to be used against “high risk” promoters who are involved in what it considers to be abusive tax avoidance. Notices can be issued to promoters who satisfy certain conditions, allowing HMRC to impose draconian conditions. Crucially, the taxman can levy fixed penalties of between £5,000 and £1 million for failure to comply with conditions set down in the notices.

“Before granting HMRC yet further powers,” said Craggs, “parliament should consider very carefully whether such powers are actually needed and ask HMRC to explain why some of the powers it has been granted in recent years have been under-utilised.”

An HMRC spokesman defended the level of use of tax avoidance rules so far, saying that they were ”introduced to change promoter behaviour. They are working as intended and we have already seen significant movement out of the risky behaviour the rules were designed to prevent.”

He pointed out that the anti-abuse arrangements came into effect after July 2013, and it was therefore early for any cases to be referred to the supervising board. But, he said, the rule was “very much working and has had a strong deterrent effect in preventing people from entering into arrangements within its scope”.

MPs call on Obama to block hacker extradition

President Obama should block the extradition of an autistic British man accused of hacking into US military computers, more than 100 MPs said yesterday.
The cross-party group of 105 backbenchers has written to the US president voicing “deep concern for the safety” of Lauri Love, 31.

According to the Press Association, the MPs point out in the letter that Love has “a long history of serious mental health issues, depression and some episodes of psychosis”. They call on Obama to halt the extradition before he leaves office at the beginning of next year.

US authorities have been fighting for Love – who lives with his parents near Newmarket, Suffolk – to face trial over charges of cyberhacking, which his lawyers say could mean a prison sentence of up to 99 years if he is found guilty.

Love is alleged to have stolen huge amounts of data from US agencies including the Federal Reserve, the US Army, the Department of Defence, Nasa and the FBI, in a spate of online attacks in 2012 and 2013. The case has echoes of that of Gary McKinnon, another alleged cyberhacker with Asperger’s, whose extradition was eventually blocked by Theresa May, then home secretary, after a decade-long fight.

In their letter to the US president, the MPs wrote: “Mr Love would be the first UK-based computer hacker to be extradited and denied the opportunity to face a full prosecution in the UK. “The UK criminal justice system is equipped to bring justice through sentencing and rehabilitating people who are adjudged to have committed these crimes.”

Lawyers condemn South Africa’s withdrawal from criminal court

South Africa’s government has damaged the country’s “fight against impunity” and severely damaged the development of its justice system, leading lawyers said after its withdrawal from the world’s criminal court.

It was reported last week that Maite Nkoana-Mashabane, South Africa’s foreign minister, had signed the notice of withdrawal after Pretoria refused to arrest President al-Bashir of Sudan on war crime allegations.

Lawyers criticised the government for taking an executive decision without the backing of the country’s parliament.

The move “would be enormously damaging to the fight against impunity, and the need of victims to seek accountability”, said Mark Ellis, director of the International Bar Association. “South Africa was one of the leading African countries in establishing the permanent court with a mandate to address atrocity crimes, yet it may be one of the earliest to walk away.”

The head of the London-based association went on to say that if the decision holds “it would be an extraordinary and detrimental development for both international justice and for South Africa”.

Individual international human rights lawyers also criticised the move. Kirsty Brimelow, QC, of Doughty Street Chambers in London, pointed out that South Africa was the second African country to announce withdrawal from the court after Burundi signalled the same move several days before.

However, she said, South Africa’s decision “is more significant than that of Burundi, which could be sidelined as a country seeking to protect itself. The concern with South Africa’s decision is that it could precipitate other members of the African Union to leave the ICC.

“South Africa’s decision not only plays its part in weakening international law at a time when it most needs to be strengthened but is a blundering backward step in history. Ultimately it is the people who have been victims of atrocities committed against them by the state who suffer.”

In Brief

Vaz to join justice select committee despite stepping down as home affairs chairman – The Times

Robot predicts outcomes in European human rights cases – Peer J Comp Science

Christian bakers lose appeal over gay marriage cake – The Times

Former Dewey finance chief admits to lesser charge – New York Law Journal


Fast-track payouts for birth injuries – a poor sticking plaster Caroline Klage

Proposals for parents to sidestep the courts and receive fast-tracked compensation when their babies are injured during birth are nothing more than a sticking plaster that fails to address negligent care.

But more worrying, the plan raises the possibility that parents will be fobbed off with inadequate amounts of compensation.

A brain injury at birth can result in a child requiring complex, life-long care and any compensation received must adequately provide for those needs. In civil negligence claims, identifying and quantifying a child’s needs is a painstaking process, with experts advising on what is needed and every item claimed needing to be backed up with evidence.

Against this background, the plans from Jeremy Hunt, the health secretary, raise many questions. Who will advise on and calculate the amount of compensation payable? If the damage caused by the negligence turns out to be greater than anticipated, will the parents have recourse to more compensation?

Accelerating the process for children that sustain life-changing injuries during birth should be encouraged, but not with a one-off quickie payment that does not fully cover the cost of caring for and supporting a child who has suffered a life-changing injury.

Sometimes with subtle brain injuries the harm that has been caused at birth will not be immediately obvious and it may only be when a child begins to struggle academically and/or socially – and in comparison with peers – that the legacy of the accident emerges. The real risk is that an early, seemingly generous, payout to parents at a vulnerable time may ultimately prove to be woefully inadequate.

Hunt argues that through this scheme parents will be able to access funds quickly. However, the current system already allows for this. As soon as the NHS Litigation Authority has admitted liability for negligence, injured children and their families can access interim payments of compensation to fund bespoke care and therapy packages. Their cases are then usually only settled when a firm prognosis can be given, which guards against the risk of under-settlement.

While the focus on transparency and learning from mistakes is to be encouraged, this is no different to the NHS’s duty of candour, which was supposed to tackle the “blame culture” head-on after the inquiry into the Mid Staffs scandal.

This scheme is a distraction when the NHS is facing cuts. What is needed is a focus on better staffing in maternity units, better training and better communication between staff to prevent accidents occurring and mistakes being repeated.

The litigation authority must exercise better judgment and admit liability earlier so that children injured at birth can gain access to interim payments to fund much-needed immediate care, with claims only settling once a firm prognosis can be given, rather than encouraging parents to accept, without legal advice, an early one-off payment that may never be enough.

The proposal may shave much off the NHS budget, but at what cost to our children?

Caroline Klage is a partner at Bolt Burdon Kemp, a law firm in London

Blue Bag

Opening shots in legal battle over press freedom

If the state of today’s letters page in The Times is anything to go by, the row over whether the Press Recognition Panel should herd newspapers into the arms of a regulator approved by the state – in the form of the Max Mosley-funded Impress – is just heating up.

The cast of characters already weighing in includes Sir Alan Moses, the former Court of Appeal Court judge and chairman of the Independent Press Standards Organisation, Jodie Ginsberg, the chief executive of Index on Censorship, Gavin Millar, QC, a Matrix Chambers barrister, and Mark Stephens, a media law partner at Howard Kennedy, a London law firm.

With the threat hanging over newspapers that don’t play ball with so-called state recognition of having to pay costs in defamation cases even if they are on the winning side, a battle royal over the freedom of the press looms. Check out the opening rounds here.

End of world nigh, claim City lawyers

Lawyers in the Square Mile should brace themselves for the autumn edition of City Solicitor, the quarterly newsletter of the City of London Law Society.

The cover image of a Nasa-style photograph of a swirling storm is the dramatic backdrop for a portentous line invoking the “chaos theory”, which reads: “Something as small as a flutter of a butterfly’s wing can ultimately cause a typhoon halfway round the word.”

The Brief was tempted to trouble the science desk with that supposition and then thought better of it. Just what the newsletter’s editor, John Abramson, general counsel at Travelers, the US insurance company, is on about is a bit unclear. But there’s a fair chance it’s something to do with Brexit.

“Whilst some believe that the people of this country may be sick of experts,” writes Abramson, who is likely to fall into the expert category himself, “we take the contrary view and speak with those in the know, both in this country and further afield.”

Returning to those fluttering butterflies, Abramson says: “We are reminded that each and every single one of our actions triggers a plethora of reactions and effects.”

They may not be butterflies, but the worker bees at City of London law firms will have never known they were so important.

Quote of the Day

“The experience did more for me than fulfil my sense of civic duty – it re-established my faith in humanity and gave me a small flicker of hope that, actually, we all might just be able to get along in future.”