Month: November 2015

Hard on the heels of my post on access to justice when legal costs are high come two updates.

First, in the UK, the Solicitors Regulatory Authority (SRA) has published a position paper, proposing a new simplified model for principles-based regulation of the solicitors’ profession. A timeline of reform of that profession over the last decade is set out in the image at the top left; click on it (or here) for a bigger version.

Second, the Seanad yesterday continued – and came close to completing – its consideration of the Legal Services Regulation Bill, 2011. Given the controversy that has attended earlier stages of this Bill, the lack of fanfare yesterday and today is remarkable. Perhaps this is the way reform now begins, not with a bang but with a whimper.

I have had occasion on this blog to repeat the old adage that justice is open to all – like the Ritz Hotel. I was reminded of it by two headlines I saw this morning.

The first is from today’s Irish Times:

Judge says courts ‘fearfully expensive’ and ‘accessible to few’

The court system is “fearfully expensive”, “alien” and “truly accessible to increasingly few”, a High Court Judge has said. The courts were a forum that should be engaged only as “a last resort”, Mr Justice Max Barrett added. … “Almost a hundred years after the opening salvos that led to the creation of our present Republic, we have now an expensive court system that remains alien to many and truly accessible to increasingly few.”

Update: Barrett J made these remarks in Traynor v Guinness UDV Ireland [2015] IEHC 732 (24 November 2015) [1], permitting the case to proceed, but recommending that the parties resolve the matter “collaboratively if possible, by mediation if not, by expert decision if necessary and, only as a very last resort, in this fearfully expensive forum” (id).

The second is from the Brief (a daily email newsletter from the Times, which will be made available later in the week here):

We can’t afford lawyers, says public

Lawyers and legal advice are well beyond the budgets of ordinary people, a survey published this week has found.

Some 70 per cent of respondents to research conducted by Citizens Advice said they would not be able to afford a lawyer to advise on a problem or dispute. Only about 10 per cent were confident they could stump up the cost of legal fees.

Other conclusions from the Report are that 1 in 7 don’t have confidence in the justice system, that low levels of support and advice are putting off some people from seeking to solve their problems, that more and more people are going to court without a lawyer, that negative experiences are leading to negative opinions of the justice system, that people’s bad experiences and perceptions of justice are putting them off using it, and that, overall, only 2 in 5 (39 per cent) people believe that the justice system works well for citizens. Also published today is a Report Card on Barriers to Affordable Legal Help in the US, which makes very similar points. The American Bar Association has established a Commission on the Future of Legal Services to “propose new approaches that are not constrained by traditional models for delivering legal services and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all”.

The recent Canadian Bar Association report on its Legal Futures Initiative – entitled Futures: Transforming the Delivery of Legal Services in Canada (pdf) – made a series of recommendations around flexibility in business structures, including the adoption of alternative business structures, and new models for legal education. In Australia, recent reforms in New South Wales and Victoria are intended to create a common legal services market, underpinned by a uniform regulatory system, to promote efficient and cost-effective administration of justice. Canada and Australia are on a journey down the same road travelled recently in the UK, where the destination was the Legal Services Regulation Board established by the Legal Services Act 2007.

Also on that road is the Legal Services Regulation Bill. If it improves the problems identified by Barrett J, by reducing legal costs, then its (long delayed, but now imminent) enactment cannot come soon enough. And it will be a necessary endeavour. Confidence in the administration of justice is at the heart of the rule of law. Access to justice is a constitutional fundamental (Greenclean Waste Management v Leahy (No 2) [2014] IEHC 314 (05 June 2014) [23] (Hogan J, upholding after the event legal costs insurance as serving important needs within the community by facilitating access to justice for persons and entities who might otherwise be denied it). Of course, the Bill (heavily amended, and now far more modest than the position recommended in Canada, or obtaining in the UK, New South Wales, and Victoria) on its own will be an insufficient remedy for these problems, but it is a start it might at least be a good start, and it may even be half the work. But that is all that it will be. Far more will need to be done. Much will depend on the Legal Services Regulatory Authority established under it. For that, we shall have wait and see. And, meantime, our expensive court system will remain alien to many and truly accessible to increasingly few.

Prof Deirdre Curtin (Professor of European Union Law, European University Institute, Florence; pictured left) will deliver the Irish Society for European Law‘s 13th Annual Brian Walsh Memorial Lecture on the above topic.

It will take place at 6:30pm, tomorrow, Thursday, 26 November 2015, in the Bar Council of Ireland Distillery Building, 145–151 Church Street, Dublin 7 (map here), and it will be chaired by the Hon Mr Justice Frank Clarke (Judge of the Supreme Court). CPD points will be available. Registration is required.

In advance of tomorrow’s event on the future of copyright, I thought I’d write a few words about where we are now with copyright reform in Ireland and the EU. The twin legislative bases for Irish copyright law date from the turn of the millennium: the Copyright and Related Rights Act, 2000 (also here) and the EU Copyright Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society; the InfoSoc Directive). In Modernising Copyright, in October 2013, the Copyright Review Committee recommended various changes to the 2000 Act to adapt it better for the digital age. The EU Commission is moving towards making recommendations with a similar aim.

In January 2012, the EU Commission began a consultation process on reform of the InfoSoc Directive (SEC(2011) 1640 final) (11 January 2012). In parallel, it considered copyright licensing, intermediary responsibilities (notice and action) and private copying levies (pdf). Although the probable conclusions of the consultation process were leaked in 2014, they were never formally published. Among their number seems to have been a recommendation that the exceptions to and limitations on copyright provided by the InfoSoc Directive should be harmonized at a European level, so that every state should provide for the same exhaustive exceptions and limitations. I had mixed feelings about this. On the one hand, this would have been good for copyright users, who could make greater use of copyright works. On the other hand, it would have prevented competition between members states to attract inward investment from information technology companies on the basis of a more attractive copyright policy than that available in competing member states; (this was the basis on which, in Modernising Copyright, the CRC recommended that all of the InfoSoc exceptions and limitations be incorporated into Irish law). Moreover, I was dismayed that the list of exceptions and limitations would be exhaustive and closed, without the possibility of a safety value to take account of technological developments.

(more…)

According to Plutarch, in his famous Lives of the Noble Greeks and Romans, Theseus, mythical king of Athens, after many labours and adventures (shown left), including the slaying of the Minotaur, returned to Athens, where his ship was kept in the harbour as a memorial for several centuries. The Athenians repaired and restored it over time, so that eventually every part of it had been replaced. Theseus’ paradox raises the question of whether something that has had all of its parts replaced remains the same thing. The same conundrum arises with the allegorical axe which has had both its head and its handle replaced several times. The Legal Services Regulation Bill has been amended so much during its labyrinthine journey through the Houses of the Oireachtas that I am reminded of these stories.

Many of its proposals were prefigured by the UK’s Legal Services Act 2007. Writing this morning in the Brief (a daily email newsletter from the Times, which will be made available later in the week here), Dame Janet Paraskeva made two points about the Act which resonate in the context of the current Bill. First, she points out the promise of the Act has not always been fulfilled “not … by any shortcoming in the legislation but by a lack of will to make the practical changes on the ground that would remove obstacles to choice.” That is a cautionary tale for the implementation of the Bill, if (and, as now seems likely, when) it is finally enacted.

Second, she argues that the full separation of regulatory and representative functions is one significant piece of unfinished business in the implementation of the 2007 Act:

When regulatory and representative functions are muddled, so are the purposes and impacts of the two activities. … In the operation of the legal services market, and in the delivery of legal services, where the responsibilities and activity of representative and regulatory bodies overlap, there is uncertainty and at times additional, unnecessary burdens that hurt legal businesses and the functioning of the market. … Clarity of separation of roles gives confidence to consumers and certainty to the regulated community. …

This separation of regulatory and representative functions is also a significant element of the Bill. It will establish a Legal Services Regulatory Authority, to “regulate the provision of legal services by legal practitioners” and to “ensure the maintenance and improvement of standards in the provision of such services in the State” (section 12(1) of the Bill as passed by the Dáil (pdf)). For so long as this remains, then the Bill will not have changed out of all recognition, and I don’t think that Theseus’ Paradox will apply. Dame Janet’s column stands as a warning that setting this out in legislation is only the beginning of the story; there are many labours to follow to ensure that its promise is fulfilled.

THE FUTURE OF COPYRIGHT

Tuesday, 24 November 2015 – 18:00 to 19:30

FREE – PLEASE REGISTER

Paccar Theatre, Science Gallery, Trinity College Dublin.

Digitisation of creative works and exponential growth of web-based communications have made the enjoyment of music, films, books, TV and much more, almost ubiquitous. Alongside this, fast internet and the increasingly wide use of smartphones and portable devices has enabled users to exchange and easily share these files. Yet, the body of law that has traditionally aimed to ensure an economic incentive and reward to content creators and producers – broadly defined – has suffered for more than fifteen years from an identity crisis.

Join me in conversation with my Trinity colleague Giuseppe Mazziotti in a discussion around the commercial, technological, cultural and societal implications of the current review of the copyright framework undertaken in the context of the EU Digital Agenda, where European policy makers are seeking to ensure a more effective, uniform and acceptable definition of copyright’s scope and of its online enforcement techniques [see COM(2015) 192 final (pdf)].

The occasion for this talk is the publication by the European Parliament of a Review of the EU copyright framework [available here; pdf] which was co-authored by Giuseppe Mazziotti. The Parliament has already adopted a Report recommending copyright reform; and a legislative proposal is due very soon from the Commission. Moreover, in an Irish context, there will be an assessment of the current state of play relating to Modernising Copyright, the 2013 Report of the Copyright Review Committee (pdf here).

Admission to the event is free, but registration is advised.

The Guinness Storehouse claims to be Ireland’s most popular tourist attraction. As the city is out of the running to become European Capital of Culture, 2020 (a title it last held in 1991), and as the Web Summit is moving to Lisbon from next year, tourist attractions like the Storehouse are probably glad to know that Dublin seems to be taking London’s mantle as Capital of Defamation, as the destination of choice for libel tourists seeking a congenial jurisdiction in which to bring a defamation action.

This is according to a new report from Thomson Reuters (see press release (via Inforrm’s blog) | The Guardian | The Independent | The Times (sub req’d) | Irish Legal News). Thomson Reuters have published research in the past about the numbers of defamation cases in London, arguing that the number of defamation cases against media groups halved in the five years from 2008/09 to in 2012/13, and that the UK’s Defamation Act, 2013 would bring further changes to the UK’s legal landscape. It is unsurprising, then, that their most recent report continues this theme. The headline on the press release for the report is that the number of defamation cases has fallen by a third in the last year; and a sub-head explains the drop by reference to the impact of the 2013 Act. However, a post on Inforrm’s blog expressed quite severe doubt the methodology behind the statistics.

The press reports have focussed on the finding that the number of defamation cases relating to social media is the only category showing an increase (The Guardian | The Independent). Not for the first time, it seems that England’s difficulty is Ireland’s opportunity: the Times (sub req’d’ see also Irish Legal News) adds that Dublin and Belfast might take advantage: “Damages awards in the Irish capital routinely hit the hundreds of thousands, while on average they are in the tens of thousands in London. In Belfast, the 2013 legislation is not applicable.”

(more…)

While accepting a Chicago Tribune 2015 Literary Award last week, Salman Rushdie robustly rejected the wave of “safe space” censorship that is currently breaking upon college campuses:

The university is the place where young people should be challenged every day, where everything they know should be put into question, so that they can think and learn and grow up. And the idea that they should be protected from ideas that they might not like is the opposite of what a university should be. It’s ideas that should be protected, the discussion of ideas that should be given a safe place. The university should be a safe space for the life of the mind. That’s what it’s for.

(more…)