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The Times

Tuesday, February 28 2017

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

Today

  • Clinical negligence move 'will deepen NHS funding crisis'
  • Hopkins libel case could change Twittersphere
  • Thousands spent on beefed up security for judges
  • Slater & Gordon: share price slide continues
  • Court deals poker player one more hand in £7.7m game
  • Criminals paid £1m after delayed parole proceedings
  • Judge wins plaudits after writing to 12-year-old
  • Comment: Those bots will want employment rights
  • Blue Bag diary: Unpicking the legal niceties of Denial

Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.

 
Story of the Day

Rate change will deepen NHS funding crisis, say insurance lawyers

Health service funding will be thrown into a deeper crisis by the lord chancellor's move yesterday to change the method for calculating compensation awards, defendant insurance lawyers have warned.

The Forum of Insurance Lawyers predicted Liz Truss's announcement that the government would slash the the discount rate for compensation awards from 2.5 per cent to minus 0.75 per cent would “add to the problems of an underfunded NHS creaking at the seams. The most likely outcome in addition to increasing premiums is a return to a more adversarial system of litigation where major heads of damage will be challenged.”

The justice secretary managed to draw a clear line between claimant and defendant clinical negligence lawyers over the issue. She acknowledged that such a dramatic reduction to the rate that courts must consider when awarding compensation for future financial losses in the form of a lump sum in personal injury cases would have “significant implications across the public and private sector”.

Truss said that the government was “committed to ensuring that the NHS Litigation Authority has appropriate funding to cover changes to hospitals’ clinical negligence costs”. She added that the Department of Health would work with general practitioners and medical defence organisations to ensure that appropriate funding was available to meet additional costs to GPs.

The Medical Defence Union has already sounded warnings that family doctors will be the most adversely affected by the move, as their insurance rates are expected to rise dramatically as a result. GPs pay their own professional indemnity insurance in contrast to hospital doctors, whose premiums are generally picked up by NHS trusts.

However, the Association of Personal Injury Lawyers, a claimant organisation, described the move as “long overdue”, claiming that the reduced rate would mean that “people who suffer severe, life-changing injuries can now be assured that the compensation needed to look after them is calculated correctly and is sufficient to provide care for the rest of their lives. It is what they need and deserve.”

Back on the other side of the fence, Nigel Teasdale, president of the Forum of Insurance Lawyers, which represents defendant law firms, said that Truss’s decision was “extremely concerning” and one that “will have significant ramifications for the insurance industry, consumers and the NHS”.

Teasdale said: “The announcement has all the hallmarks of a rushed decision and the government’s current approach seems disjointed at best.” He called for the rate to be “a fair reflection of the real world, rather than just one option of index linked government securities rarely used in practice”.

Defendant lawyers welcomed Truss’s indication that she would review the reduced rate in a consultation that will take place in the next six months to a year.

 
 
News Round Up
Hopkins libel case could change Twittersphere

Two high-profile media lawyers who fought side by side in the Fleet Street phone hacking claims are at opposite sides of the ring in one of the biggest libel cases to come to trial for some time.

Mark Lewis, a partner at Seddons, is squaring off against the Kingsley Napley partner Charlotte Harris as their clients go to battle over a claim that could have far reaching implications for social media.

In the red corner of libel court No 13 in London’s Royal Courts of Justice is Jack Monroe, a campaigning journalist and cookery writer, who is suing Katie Hopkins (pictured), a Daily Mail columnist.

Monroe, who is represented by Lewis and the barristers William Bennett and Greg Callus from 5RB chambers in Gray’s Inn, claims that Hopkins accused her in a tweet of vandalising a war memorial.

In the blue corner, Hopkins, who is represented by Jonathan Price from Doughty Street Chambers in London as well as Harris, is understood to be arguing that the tweet concerned did not bear a defamatory meaning and that even if it did, it could not have caused serious harm to Monroe’s reputation.

Officiating over the scrap – which kicked off yesterday and is understood to be listed to finish this afternoon – is Mr Justice Warby, who is sitting without a jury. Commentators suggest that the trial is the first to consider the impact of the new “serious harm” test in the context of a claim involving publication on Twitter.

That test was brought in by the Defamation Act 2013 and will be a crunch point in this action. It is thought that the defence is likely to argue that even if the meaning of the words are defamatory, no serious harm would have been caused because Hopkins’ followers are likely already to have a low opinion of Monroe, while Monroe’s followers would not believe Hopkin’s tweet to be true.

It is expected that judgment will be reserved today.

Thousands spent on beefed up security for judges

Judges are now so fearful for their safety that tens of thousands of pounds of public money has been spent on installing security measures at their homes and training them in how to combat attacks on social media.

Figures from the Ministry of Justice show that nearly £25,000 was spent on upgrading security at the homes of four judges between 2014 and 2016.

Judges are also being trained in how to use social media sites so that they can protect themselves against online abuse and preserve their privacy. Many judges will have had threats hurled at them across the courtroom, but in the age of Facebook and Twitter some are as concerned about being hounded in the virtual world. The recent Judicial Attitude Survey found that judges were fearful both of their personal safety as well as of attacks online.

The survey found that 48 per cent of female judges and 36 per cent of male judges feared for their safety outside of court, while more than half of judges feared for their personal safety in court.

In the financial year 2014-15, nearly £21,000 was spent on safety improvements at a judge’s home under figures released to the Press Association under the Freedom of Information Act. The following financial year, almost £4,000 was spent on installing security at the homes of three judges.

A judge who worked in Britain’s family and civil courts told the Press Association on condition of anonymity that one man whose children had been removed from his care had threatened to kill the judge and tried to smuggle a knife into court.

Slater & Gordon: share price slide continues

Masochistic observers of the Slater & Gordon share price were treated to another low yesterday as the groundbreaking legal services business closed on A$0.12 – a 6 cent drop in only five days.

Triggering the latest plunge were financial results that showed a 38 per cent drop in income over the last year in the UK for the Australian practice.

The figures triggered reports that the business – which is one of just two publicly-listed legal services companies in the UK – will not be able to settle bank debt that comes due next year. A report on the Legal Futures website highlighted the significant restructuring that has been forced on Slater & Gordon in the UK since it took over the London law firm Russell Jones & Walker in 2012. Staff numbers have tumbled by 20 per cent and the business has shut 18 offices, taking its present total to 30.

Slater & Gordon’s business model – which is heavily reliant on lower value personal injury claims – has been suffering since the UK government announced reforms to the small claims limit for such cases. That move has taken lawyers out of more modest claims.

Slater & Gordon also faces large-scale litigation – it has until June 19 to file claims in relation to its costly 2015 takeover of scandal-ridden Quindell, an insurance business. The legal practice ultimately wrote off about £540 million on the Quindell deal. Its share price was A$7.85 just before it completed the takeover.

Court deals poker player one more hand in £7.7m game

The UK’s top judges will rule on whether it is possible to be an honest cheat in a case that could deal a professional poker player £7.7 million in winnings.

Phil Ivey, a former world poker tour title winner, is challenging a Court of Appeal ruling that he cheated during a game played at Crockfords casino in London in 2012. The outcome could mean a big win for the card player, and it will determine the law on what constitutes cheating in gambling and whether it must involve dishonesty.

The dispute centres on a version of James Bond’s favourite card game, Baccarat, and the practice of edge-sorting. The tactic enables players to predict when certain high-value cards will be drawn.

The casino alleges that Ivey persuaded the croupier to rotate certain cards by claiming he was superstitious, allowing him effectively to arrange the pack into high and low-value cards. Ivey was told that his winnings would be wired to him but he found later that only his £1 million stake had been returned.

In what has been called the biggest legal battle in casino history, Ivey, 40, challenged Genting Casinos UK, which owns the Mayfair club and about 40 other casinos in the UK, but in 2014 a High Court judge dismissed his case.

And last November the Court of Appeal agreed, ruling that Ivey’s “edge-sorting” skills amounted to cheating – despite the fact that he was not dishonest. Two of the three appeal judges ruled that the casino did not need to prove dishonest intent on Ivey’s part, but “because of [Ivey’s] plan to play using the knowledge obtained from the reorienting of the cards under his direction, those matters amounted to interference with the process by which the game was conventionally played”.

Now three Supreme Court Justices – Baroness Hale of Richmond, Lord Wilson of Culworth and Lord Hughes of Ombersley – have considered Ivey’s bid to appeal against that decision and agreed to deal him another hand. It will be some months before he knows whether his luck is in.

Criminals paid £1m after delayed parole proceedings

Criminals have been paid more than £1 million in taxpayer-funded compensation because delays in parole proceedings breach their human rights, a report shows.

Offenders whose cases are held up can claim compensation under human rights laws – even if they are ultimately kept behind bars.

The Parole Board for England and Wales paid £1.1 million in compensation claims to prisoners from April 2011 to March last year as a result of delayed hearings, an official spending watchdog disclosed yesterday. Some £554,000 was paid in 2015-16 – more than six times the annual sum recorded three years earlier, reflecting a huge rise in claims.

The National Audit Office said delays meant that some prisoners may have spent longer in jail than they would have if their parole hearing had been held sooner. Those who experience delay can claim compensation under the Human Rights Act once their case is concluded.

Convicted offenders can claim at a rate of about £50 per month of delay if they are turned down for parole. If they are released following a delay, they can claim at a rate of about £650 per month. The board received 463 private law damages claims in 2015-16, compared with 89 in 2014-15.

Judge wins plaudits after writing to 12-year-old

A family court judge has been praised after writing a letter to a 12-year-old boy at the centre of a dispute between his parents explaining why she had not done what he wanted.

Recorder Lorraine Morgan took the unusual step of outlining her thinking in “child-centred” terms after making a ruling on the boy’s case at a private family court hearing in Salisbury, Wiltshire.

The judge had been asked to make decisions about when the boy, who lives with his father, should see his mother. She decided that he should see his mother at specified times. The boy had spoken to the judge during the hearing and told her that he wanted a flexible arrangement.

The judge wrote to him: “I expect you are wondering what the point was of coming to see me about this if I didn’t do what you wanted.”

The Children and Family Court Advisory and Support Service (Cafcass), a specialist organisation set up to safeguard the interests of children embroiled in the family court proceedings, also backed the move.

Details of the letter emerged last week when the boy’s father mounted an appeal against the judge’s ruling at a public hearing in the family division of the High Court in London. The man told the appeal judge, Mrs Justice Roberts, that Recorder Morgan’s ruling on when the child should see his mother was wrong. Mrs Justice Roberts disagreed and dismissed the appeal. She also praised Recorder Morgan’s letter – saying it was written in “child-centred terms” and was “very insightful”.

In Brief

Lutfur Rahman to face disciplinary hearing – Law Gazette

Surviving arm of King & Wood Mallesons shakes up Chinese management – Legal Week

Quebec government lawyers to challenge back-to-work legislation in court – Montreal Gazette

Clarification

Tony Blair, the former prime minister, has asked us to clarify that it was not his government that awarded compensation to Jamal al-Harith, born Ronald Fiddler, as reported in The Brief yesterday. Instead the compensation was agreed by the Conservative-Liberal Democrat coalition government in 2010 and announced in parliament by the then justice secretary Ken Clarke.

 
 
 
Byline
Comment

Before you know it, the bots will want employment rights Jane Amphlett

With learned economists warning that the rise of artificial intelligence will cost millions of UK jobs, affecting virtually every sector of the economy, it is natural to worry more about whether a robot will be stealing your job than whether it should be allowed to join a trade union.

Even the word “robot” comes from the Czech word for “slave” – hardly a promising beginning for those arguing for robots to have legal rights.

But as AI becomes increasingly sophisticated and harder to distinguish from human intelligence, the calls for a legal and ethical framework around robot use are becoming louder and it is even possible that this could extend to basic employment rights.

The European parliament passed a resolution this month calling for robots to be granted legal personhood, to enable them to participate in litigation as either claimant or defendant. It has also called for an ethical framework to be developed for the ethical design, production and use of robots.

These proposals are now being examined by the European Commission and would arguably represent the first step towards granting robots basic legal rights.

One area that any ethical code will need to grapple with is how robots should be used in the workplace. It is entirely possible that human staff could interact with robots via email without necessarily realising that they are not dealing with a human being. Arguably, it would be unfair for human workers to be required to interact with AI unknowingly; it is possible that disclosure could become an ethical or even a legal requirement.

At the same time, given that AI bots tend to learn from interaction with humans, employers using robots will probably wish to set rules for human-bot interaction to prevent bots learning offensive behaviour.

Microsoft’s “Tay” chatbot offered a salutary lesson: launched on Twitter in March last year and designed to mimic the speech patterns of a 19-year-old girl, within hours Tay became an expletive-spouting, genocide-approving misogynist – hardly the ideal colleague. The closer that AI comes to passing the Turing test, the more compelling the case for rules governing its treatment in the workplace.

The idea of robots having employment rights is obviously still something of a leap. But it is worth bearing in mind that the notion of human employees having rights is quite a recent one, with most basic statutory rights having developed only in the latter half of the 20th century.

Future generations may be as shocked at our cavalier treatment of robots as we are at the idea of the Victorians sending children up chimneys – that is, if the robots have not already taken over by then.

Jane Amphlett is an employment law partner at Howard Kennedy, a London law firm; Alexandra Mizzi, an associate at the firm, contributed to this article

 
 
Tweet of the Day

They are using falcons to kill of the pigeons at Chelmsford Crown court today 🙀 https://t.co/NjUo3OuutI

Jerry Hayes @jerryhayes1

 
 
Blue Bag

Unpicking the legal niceties of Denial

The Brief likes to let the dust settle on big film releases (no, we are not chiming in on the La La Land v Moonlight farrago at the Oscar) but instead focusing on Denial, which one of the co-editors of this bulletin finally caught up with.

Our own lawyer at The Times provided a very good analytical review of the film several weeks ago, but readers will doubtless be gagging to know which tiny legal profession inaccuracies were committed by the filmmakers.

So over to our anorak-clad reporter with sellotaped spectacle frames. First, big minus points for forcing Andrew Scott, who plays Anthony Julius – the Mishcon de Reya partner representing the US historian Deborah Lipstadt as she defends a libel action brought by the Holocaust denier David Irving – to say “discovery” instead of “disclosure”.

Only moments later, the same character is lumbered with suggesting a witness will be “subpoenaed”, while farther down the line in the drama the solicitor is concerned that if he does what his client asks him to do, he will be “disbarred” as opposed to “struck off”.

Keeping tabs on Julius

But perhaps most embarrassing for Julius when he attended the gala screening was the outfit inflicted on his character. Julius is an accredited higher court civil law advocate, but as far as the filmmakers are concerned he left all the submissions in Irving v Lipstadt to Richard Rampton, QC, of One Brick Court in the Temple.

Nonetheless, he appears in court kitted out in what look like the tabs worn by women solicitors in the county court. Presumably, if Julius wanted to demonstrate that he was a high court advocate, he would have gone robed and wigged as solicitor-advocates are entitled to do.

Or would he? The practice direction that brought solicitor and barrister dress more or less in line in the High Court came into force in 2008 – four years before this trial. So that point is open to debate.

Red judges are sexier

What is far less likely to be open to debate is the outfit imposed on Alex Jennings, who played Sir Charles Gray, the judge who heard the case (without a jury). The filmmakers opted for formal red robes of a High Court, usually criminal court judge, presumably because they look more impressive.

In Mr Justice Gray’s court, there is a veritable game of musical chairs. The client for some reason sits in front of counsel, with Rampton and his junior sitting side by side. And the in-house lawyers at Penguin, the publisher of Lipstadt’s 1994 book, might feel slightly aggrieved: they do not get a look in as far as the script writers are concerned.

On the more accurate side, it was good to see a shot of the judge having tea and biscuits from fine china before handing down judgment (which, according to the film, he wrote in longhand). Likewise, the dedication which Richard Rampton’s character showed for fine wines and Scotch whiskey was comforting. One trusts that it is an entirely realistic representation of life at the Bar.

 
 
Quote of the Day

“I’m a bit baffled as to why a reasonable reader of Twitter would assume that a tweet aimed at person X was simply a misdirected criticism of person Y when the tweeter goes on to describe person X as social anthrax, as opposed to saying, for example, ‘awfully sorry I meant person Y’.”