Category Archives: Legal practice

Documenting death

My article, Documenting Death is in a Time Warp, has now been published by the Law Society Gazette.

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Small claims of IP infringement

As a member of the UK-based Society of Legal Scholars, IP Draughts receives a copy, every few months, of the society’s journal, Legal Studies.

When he receives his copy, he skims the contents page looking for an article that focuses on practice-based issues in the field of IP or commercial law. Often he finds nothing of interest. Many of the articles seem to be academics talking to one another, and citing one another, in a closed loop.

The latest edition – volume 39 No 1 March 2019 – is different. It includes an article reporting on empirical research about the use of the small claims track (SCT) of the Intellectual Property Enterprise Court. It seems that this track or court is favoured by professional photographers to claim royalties for use of their photos without permission.

The correct citation for the article is: Cooper E, Burrow S (2019) Photographic copyright and the Intellectual Property Enterprise Court in historical perspective. Legal Studies 39, 143-165. IP Draughts doesn’t know whether the article is available to non-members, but with the trend to open-access scholarship he hopes it will become generally available soon.
The authors are from the School of Law of Glasgow University. The article is stated to be partly based on Sheona Burrow’s unpublished 2017 PhD thesis, Access to Justice in the Small Claims Track of the Intellectual Property Enterprise Court (IPEC): An Empirical Enquiry into Use by Creative SMEs.

The article is topped and tailed with a suitably academic focus on the theoretical framework for ‘property rules’ and ‘liability rules’, and with a discussion of certain historical developments on the subject of newspapers paying photographers for use of their photos. For IP Draughts, who is not part of the academic world, these discussions are of only passing interest, though he notes that the former topic is reminiscent of the Manchester Manifesto, mentioned briefly in an early article on this blog.

Where the article comes to life for IP Draughts is in its analysis of the cases brought in the SCT between October 2012 and 31 December 2015. Such cases do not usually make it on to BAILII, his usual source for reported case law, presumably because they are considered of low importance. And yet, anyone advising a client on an IP infringement matter in England and Wales needs to understand what the SCT is for, how it works, and how it is different from larger cases brought in the fast track and multi-track of IPEC, or even larger cases brought in the Chancery Division (including the Patents Court).

Here are a few points, in no particular order, that jumped out from a lengthy and thoughtful article:

  1. During the period studied, 261 claims were dealt with by SCT, of which 79% concerned copyright infringement. Of these, a majority (144) concerned the infringement of photgraphic copyright, of which 133 were about unauthorised use of a photo on a website. 122 of the claims (46% of the total of 261) were by freelance professional photographers or their agents.
  2. The SCT is the forum of choice for such photographers. It replaced an earlier route that they tended to choose, which was to issue an invoice for unpaid royalties and then bring a money claim in the County Court.
  3. In the vast majority of cases, the photographers were successful in their claims. They tended to seek damages rather than an injunction.
  4. These actions often involve claims of breach of moral rights as well as copyright. For example, it has been held in SCT cases that the right of attribution is breached when metadata is stripped out from the online image.
  5. Damages are often calculated by reference to a “going rate”. In some cases there is an uplift for flagrant breach, often by way of a 100% uplift on damages.

IP Draughts would be interested to read Dr Burrow’s PhD thesis. He idly wonders why there isn’t a branch of high-quality scholarship that avoids all the baggage of the “academy” and just focuses on research that affects practical issues.

 

 

 

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How clear are our judges?

Long-term readers of this blog will remember that IP Draughts had a phase of running text through the Bla Bla Meter. “Bla bla” is, he thinks, a polite version of the word that the creators of the tool had in their minds. A low score is good, a high score bad.

Court judgments deal with complex issues, and it is not always easy to reduce those issues to very simple language. But it can be done. In 2016, Peter Jackson LJ famously wrote a judgment in a family law case so that the children concerned in the case could understand it. His bla-bla score? A phenomenally good 0.07.

This was an exceptional case, and IP Draughts wouldn’t expect this approach in most cases. He found that some of the senior judges that he most admired had scores in the 0.16 to 0.19 range, while some others strayed into the .20s.

IP Draughts thought it would be interesting to see how the latest batch of judges to be appointed to the UK Supreme Court score, based on a random selection of passages from their judgments in the Court of Appeal. Lord Sales, Lady Arden and Lord Kitchin are good lawyers, but are they good writers? The results are in:

In the R v General Medical Council case (2018), Lord Justice Sales scored 0.18 and Lady Justice Arden scored 0.17. In the Nestle v Cadbury (2017) case, Lord Justice Kitchin scored 0.16 in one passage and 0.19 in another.

All very good scores. For comparison purposes, IP Draughts tested parts of the speeches of Lords Sumption, Briggs and Hodge in the Warner Lambert v Generics (2018) case in the Supreme Court. They all had similar scores in the 0.17 to 0.19 range.

IP Draughts stresses that this is not a measure of the quality of the decision, just the way it is expressed. But he is biased in favour of people who make an effort to express themselves simply and clearly.

By way of contrast, the judgment of Marcus Smith J in the CMA v Concordia International case (2019) scored 0.25. A reasonable score by an intelligent judge, but not fantastic.

According to this BBC news report, some judges in India have had their judgments sent back to them for rewriting, because the Indian Supreme Court found them unintelligible. The report quotes as an example the text below:

However, the learned counsel…cannot derive the fullest succour from the aforesaid acquiescence… given its sinew suffering partial dissipation from an imminent display occurring in the impugned pronouncement hereat wherewithin unravelments are held qua the rendition recorded by the learned Rent Controller…

The summum bonum of the aforesaid discussion is that all the aforesaid material which existed before the learned Executing Court standing slighted besides their impact standing untenably undermined by him whereupon the ensuing sequel therefrom is of the learned Executing Court while pronouncing its impugned rendition overlooking the relevant and germane evidence besides its not appreciating its worth. Consequently, the order impugned suffers from a gross absurdity and perversity of misappreciation of material on record.

IP Draughts put this text through the Bla Bla Meter and was disappointed to discover that it only scored 0.25. It should have been off the scale! IP Draughts has been in touch with the people who run the Bla Bla Meter. They acknowledged that there are some areas where the algorithm doesn’t work well, and that the above example should have received a much higher score.

Just for fun – though he may regret it – he put a couple of US Supreme Court judgments through the test. He randomly alighted on SAS Institute v Iancu, Director USPTO (2018) and tested extracts from the judgments of Gorsuch J and Breyer J. One scored 0.28 and the other 0.29. The consistency between their scores suggests that a different drafting style is favoured in the US Supreme Court.

Finally, he decided to put the famous Florence speech (2018, about Brexit) of Theresa May, the British Prime Minister, through the test. You might think that a politician would speak very plainly and have a score of less than 0.10. Her score? 0.21.

Oh, and this blog article (excluding the quotation from the Indian judge)? 0.06 – phew!

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Solicitor ordered to repay £22M

First, a warning. This article has nothing to do with IP law. But the story it describes is shocking, at least to IP Draughts. It affects all of us who practise in a profession whose “brand” is based on honesty and integrity.

Three years ago, the Solicitors Regulation Authority closed down the law firm, Blavo & Co. Solicitors Limited, and placed restrictions on the practising rights of several of its staff. The firm’s managing partner was Mr John Blavo. From a search on the Law Society website today, it seems that Mr Blavo continues to be a solicitor but is not practising. The SRA website doesn’t appear to show any intervention in the case of Mr Blavo, though it does reveal sanctions against about a dozen of the firm’s staff. IP Draughts wonders why Mr Blavo was not subject to the same restrictions as other members of staff in his firm, and why he has been allowed to remain as a solicitor, in view of the facts described below.

On 21 December 2018, Mr Justice Pepperall’s judgment in the case of The Lord Chancellor v Blavo & Co Solictors Ltd & Anor [2018] EWHC 3556 (QB) was published. The judge ordered Mr Blavo to repay over £22 million that had been paid to the firm for legal aid work on mental health cases. In the words of the judge:

The shocking allegation at the heart of this case is that Blavo & Co. made dishonest claims for payment on the legal aid fund for thousands of cases where it was not entitled to any fee.

Elsewhere, the judge noted that:

…the firm grew rapidly and, by 2015, operated from 18 offices throughout England and Wales.

…at its height, [Blavo & Co] was the second or third largest legal aid firm in England and Wales.

…on the balance of probabilities, I find that the practice of making fraudulent claims on the legal aid fund was endemic at Blavo & Co.

The facts described in the case report are shocking, and on an industrial scale. But what strikes IP Draughts particularly is the chaotic way in which both the firm and the Legal Aid Agency (LAA) operated. The judge notes the evidence of LAA witnesses who, keeping an open mind at the outset of their investigations, considered it possible that the discrepancies between the solicitors’ files and the records of the LAA were due to errors on the part of the LAA. That this was a plausible prima facie explanation for the discrepancies is itself shocking.

The primary fault in a case like this must rest with the individuals concerned who made inappropriate claims for funding to the LAA, closely followed by the people who ran the firm and allowed this situation to arise. But others should share the blame.

To IP Draughts, this case has the fishy smell of the government seeking to reduce its management responsibilities, and reduce costs, with a policy decision to place legal aid work in the hands of a small number of factory-scale firms of solicitors. This reminds us of other areas of activity where the government does this, such as placing outsourcing contracts with firms like Carillion, now in liquidation. It also has echoes in the banking collapse of 2008, where some firms were perceived as “too big to fail”.

But we shouldn’t take comfort from this, as if blaming the government absolves the solicitors’ profession from its own share of blame. It is not the first time that a major legal aid firm has gone under. In the past, the SRA’s response to these types of events has been  to increase the requirements for solicitors to adopt formal processes. In IP Draughts’ view, this is only part of the picture, and can be counterproductive if applied in an unthoughtful way. Bureaucracies measure what can be measured. What is also needed is to reinforce the traditional ethos of the profession. This intangible quality can only be supported by creating and maintaining a common sense of purpose within the profession. This is a long-term project, appealing to hearts and minds, not spreadsheets.

IP Draughts has no information on whether Mr Blavo has the resources to pay £22 million to the Lord Chancellor, or meet earlier costs orders arising from the closure of his firm. But he is not holding his breath. In his view, this latest saga should make all of us reflect on what solicitors need to do to maintain or restore the trust between the legal profession and its “stakeholders” including clients and public funders.

 

 

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