Edward Fennell’s LEGAL DIARY

Friday 15 January 2021 Edition 41

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK

SO WHAT ARE ‘UK VALUES’?

So whose justice is protected here?

There has been widespread condemnation this week of David Perry QC for agreeing to act in Hong Kong for the prosecution of human rights activists including distinguished figures such as Martin Lee (known as the former British colony’s ‘father of democracy’). Lord Falconer of Thoroton, the ex-Labour Lord Chancellor said that Perry ‘could not continue in that role and remain consistent with the values of the UK.’

Meanwhile Mike Lynch, the boss of Autonomy, is at risk of being extradited to the US despite the Serious Fraud Office deciding that there was nothing worthy of prosecution in his case. This has strong echoes of the NatWest Three case when Andy Burnham, ex-Labour Home Office Minister and now the Mayor of Manchester, despatched to America three British subjects who had seemingly done nothing wrong under UK law. Among many others Nick Clegg spoke in their defence. So how exactly are these extraditions ‘Consistent with the values of the UK’ – especially when compared with the British Government’s inertia over Anne Sacoolas (the American woman alleged to have been driving the car which killed motorcyclist Harry Dunn) ?

“As the US enters a new administration under Biden, perhaps there is an opportunity to correct this system,” suggests Bambos Tsiattalou of specialist criminal defence firm Stokoe Partnership Solicitors.

One can but hope.

The LegalDiarist

In this week’s edition

THE LEGAL DIARY OF THE WEEK

+ Brick Court hits One Hundred

+ Leppard changes his spots to Black Cube

+ Discriminatory Technology

+  Deborah Rhode RIP

– LEGAL PRO BONO STORY OF THE WEEK

More domestic abuse victims than ever helped by NCDV

  • LEGAL ANALYSIS OF THE WEEK

Is there a role for litigation in the NHS’s Covid-19 response?

+ LEGAL QUOTE OF THE WEEK (from the House of Lords)

The legal cost of medical negligence

– LEGAL CAMPAIGN OF THE WEEK

Use the law to finish off fake news

– APPOINTMENTS OF THE WEEK

– PODCASTS AND BLOGS OF THE WEEK

from FORSTERS

LEGAL DIARY OF THE WEEK

Brick Court Hits One Hundred

Brick Court Chambers, one of the top sets in the Temple, is committing itself to raising £250,000 for charity as a way of marking its centenary year. The primary focus of the “Centenary Challenge” will be social mobility, with £100,000 each being raised for the Sutton Trust and IntoUniversity – charities that are working to improve the representation of under-represented groups in both higher education and in the workplace. Their work will be more important than ever in 2021.

“Whilst our principal aims are deliberately wider than the legal profession, the need remains great within the legal sector too, and Brick Court will also be raising £50,000 for the Access to Justice Foundation and Advocate (formerly the Bar Pro Bono Unit),” said a spokesperson for the chambers. It will also be raising £50,000 for the Access to Justice Foundation and Advocate (formerly the Bar Pro Bono Unit).

The set traces its origins back to 1921 when William Jowitt, one of the pre-eminent commercial practitioners of his day and later Lord Chancellor (in the post-war Attlee government), established chambers of his own at 1 Brick Court in the Middle Temple. In recent years it moved to a new home at 7-8 Essex Street.

Among a number of products linked to the celebrations will be a history written by Charles Hollander QC, a centenary podcast series featuring former and current members of chambers in conversation and

Centenary ‘panel debates’ on topics of general interest.

Leppard changes his spots to Black Cube

Move along please – nothing to see here

Black Cube, the corporate investigations agency, has pulled off a major coup by recruiting to its board Adrian Leppard CBE (above) who was the national UK policing lead for cyber and economic crime for five years before becoming Commissioner of the City of London Police in 2016. With his extensive experience investigating the most serious national fraud and cybercrime affecting the UK, Leppard is a key figure within London’s financial centre and has a strong network of relationships across banking and industry.

Commenting on his new role with Black Cube, Leppard said, “It is a fact that corruption and dishonesty exists in the corporate sector, and in some parts of the world it has unfortunately become almost commonplace. Unless these practices are challenged, they grow to become endemic, influencing large parts of society. Law enforcement is often ineffective in these areas but people who have been defrauded or victimised deserve to be defended.

“The search for the truth in these environments is challenging and costly but I have been struck by the level of professionalism I have seen within the operations at Black Cube. Their lawful methods are conducted with the same level of diligence and integrity that I have seen previously in my role in law enforcement.”

Given London’s uncertain future as a financial centre in the post-Brexit world it will be fascinating to see which path the war on fraud now follows.

Discriminatory Technology?

A new report from Hogan Lovells has highlighted that increasing reliance by businesses on technology – especially artificial intelligence – is making them vulnerable to accusations of bias and discrimination. Research for the report How to prevail when technology fails, canvassed the views of 550 business leaders to discover how companies might mitigate the legal fallout from technology incidents.One of the findings was that the lack of awareness about issues relating to bias meant that 45% of businesses surveyed globally, and nearly 40% in the UK, do not check technology supplied to them for racial and gender bias. 

Stefan Martin, partner at Hogan Lovells, said, “The use of AI  in employee hiring decisions or in the provision of access to goods and services creates significant legal risk.  We have already seen cases brought  under the Equality Act 2010 where businesses have inadvertently discriminated against protected groups through the use of flawed AI.  Businesses need to be alive to the risks that exist in this area.  They also need to take active steps to assess those risks and to protect themselves from them when technology fails or is shown to be biased in its use or application.  It is illegal to make hiring or lending decisions based on race, gender or sexual orientation, yet algorithms make assumptions based on the data sets they are trained on, which are not always sufficiently diverse.”

Mind you human beings are also still likely to fail this test. As reported earlier this week, a middle aged male applicant for a post at Guy’s and St. Thomas’s NHS Trust was rejected – despite being the top performer in the selection process – on the grounds that he was ‘nothing like the young woman’ who previously held the job. He received £7k. in compensation.

For more go to: https://litigationlandscape.hoganlovells.com/litigation-landscape/home/

 Deborah Rhode RIP

Human rights lawyers on both sides of the Atlantic are mourning the death earlier this month, aged 68, of Professor Deborah Rhode, the Ernest W. McFarland Professor of Law at Stanford Law School and America’s most frequently cited scholar in legal ethics.

Regarded as being one of the contemporary giants in her field she was particularly well know for her book, In the Interests of Justice: Reforming the Legal Profession. At the heart of many of the ethical dilemmas facing lawyers was, she said, a fundamental conflict of interest. “The clash between lawyers’ responsibilities as officers of the court and advocates of client interests creates the most fundamental dilemmas of legal ethics. All too often, the bars resolve this conflict by permitting over-representation of those who can afford it and under-representation of everyone else.”

LEGAL PRO BONO STORY OF THE WEEK

More domestic abuse victims than ever helped by NCDV

With anxieties growing daily about the impact of the Covid lockdown on domestic violence the National Centre for Domestic Violence reports that it has helped, free of charge. 4165 victims of domestic violence in England during 2020.

Unsurprisingly this figure is 50% higher than NCDV’s previous record set in 2019 when the organisation was able to help 3049 victims and more than twice the figure from 2018.

Every month NCDV receives about 8000 calls from people suffering from, or at severe risk of, domestic abuse, including controlling behaviour. Most of these callers, though by no means at all, are women who have been referred by the police and other domestic abuse support agencies. NCDV’s ability to help many thousands of victims secure civil law ‘Non Molestation Orders’ quickly is an extremely effective counter to domestic abuse: if abusers breach the terms of the Order it constitutes a criminal law offence punishable by up to five years in prison.

“This pro bono effort goes right to the heart of our purpose as an organisation,” said Mark Groves, the NCDV chief executive. “Without the quite extraordinary dedication of our pro bono team many thousands of victims would simply not get the legal support they need and deserve.

“From the outset our standing policy has been to make no charge whatsoever to any victims who reach out to us. But those callers who cannot afford a solicitor and who cannot get legal aid funding quickly still need to get vital legal protection in place.

“It is when these victims find they don’t qualify for legal aid and simply cannot afford a solicitor that we can step in and help them pro bono.”

For more on NCDV go to @ncdv.org.uk

LEGAL ANALYSIS OF THE WEEK

Is there a role for litigation in the NHS’s Covid-19 response? asks Nicola Wainwright, JMW Solicitors

Nicola Wainwright

The Covid-19 pandemic has brought staff shortages within the NHS into sharp focus. Those shortages have been made worse by staff being off sick or becoming burned out and patient numbers escalating to record levels.

The quality of patient care during this pandemic is being severely affected even though staff are doing their absolute best. It is not only affecting patients with Covid-19, but also those with other serious, potentially life-threatening conditions.

At the end of 2020, I commissioned a YouGov survey of UK healthcare professionals to look at the role of litigation in medical decision-making. It revealed that many decisions about patients’ care are being determined by staffing levels and the availability of NHS resources, rather than patients’ best interests.

In cases I have worked on, staff shortages have contributed to patients not being seen when they should have been, necessary surgery and/or treatment being delayed, reviews being rushed, important information being missed, and key elements of care not being provided.

Explanations needed—

Patients will be grateful to staff members and teams, who they can see are doing their best in unprecedented circumstances. However, that does not mean they will not want answers as to the role resourcing and systemic failures played in any failures in care.

The Government has suggested that if litigation was reduced that would help improve care, but our survey showed litigation is not actually even in the top factors affecting the care that is given. Litigation is often the only way for patients and their families to get answers.

The NHS has accepted that it can learn from past mistakes to improve care. It is important that the effects of the lack of staff and other resources on patient safety, which has been demonstrated so clearly and tragically by Covid-19, are carefully considered and learnt from so that future care and pandemic-preparedness can be improved.

For further contact: https://www.jmw.co.uk/london/people/nicola-wainwright#:~:text=Nicola%20is%20a%20specialist%20clinical,out%20of%20our%20London%20Office.

BUT MEANWHILE from yesterday in the HOUSE OF LORDS

Medicines and Medical Devices Bill

Debated on Thursday 14 January 2021

report day 2

Lord Hunt of Kings Heath 

(Lab) [V]

My Lords, I want to come back to the debate on clinical negligence… 

 “We have reached a very serious position, with an exponential rise in clinical negligence costs. Twenty years ago, contingent liability was £3.9 billion; it is now £83 billion. Even allowing for inflation, I hardly think that we have become 20 times more negligent over that period. Indeed, the Minister, Nadine Dorries, told the House of Commons in a Written Answer last November:

 “The continued rises in clinical negligence costs are eating into resources available for front-line care”.

It is not delivering for patients and their families, either. There are huge delays in getting cases settled and huge lawyers’ fees, in a quite remarkable situation where the NHS ends up paying damages in 80% of litigated clinical negligence claims. There is something wrong in the way we deal with these cases.

 “There have been endless reviews over the past 20 years, but precious little has happened. Seventeen years ago, an NHS redress scheme was unveiled by the then Chief Medical Officer, Sir Liam Donaldson. Legislation followed in 2006 but, 14 years later, it has yet to be implemented—and I doubt it ever will be. Since then, there has been much debate about the sustainability of Section 2(4) of the 1948 Law Reform (Personal Injuries) Act, which essentially promotes increased costs because it provides that there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the NHS. In other words, the NHS tends to pay twice.”

So there!

LEGAL CAMPAIGN OF THE WEEK

USE THE LAW TO FINISH OFF FAKE NEWS

The end of the Trump regime might signal a radical new approach by Governments to cleanse the general media of fake news. University of Exeter legal experts are now arguing that restrictions on freedom of expression to reduce the spread and adverse impact of fake news are inevitable. Their research has shown such restrictions can be introduced legally, and must be introduced by the government rather than social media platforms in order to protect the public and democracy.

Dr Rebecca Helm and Professor Hitoshi Nasu from the University of Exeter Law School have analysed different regulatory responses to fake news and associated misinformation  – information correction, content removal or blocking, and criminal sanctions – to see which of these methods is likely to be effective in reducing the harmful effects of misinformation and compliant with existing law.

The study describes how traditional methods of information correction and removal or blocking of fake content may not be effective in combating misinformation due to influential psychological biases. These biases, motivated cognition and confirmatory bias, mean that once a person has been exposed to misinformation which supports their existing beliefs they are likely to endorse this information and once this has happened it can be hard to convince them the information is not true.

Criminal Sanctions? ——

For this reason, Dr Helm and Professor Nasu argue the best way to reduce the harmful effects of fake news is likely to be to prevent its creation in the first place, and that criminal sanctions may be the most effective way to do this. Criminal sanctions for the deliberate creation and spread of fake news may therefore be appropriate when used carefully and to protect the public.

The study says criminal sanction in this context can be justified when used for specific cases, with precision, combined with safeguards to protect freedom of expression by ensuring that the accused or convicted have the opportunity to prove the truthfulness of their information.

Dr Helm said: “The recent situation in the USA, where riots were fuelled by unproven allegations relating to election fraud, is indicative of a wider trend in modern society, where certain types of expression involving misleading information may be challenging rather than enhancing democracy

“The spread of misinformation is having a distorting impact on the democratic decision-making process as well as having serious negative effects on public health, national security, and public order.

“Effective action must be taken now to protect society and to ensure citizens can make choices in line with informed preferences rather than misleading but psychologically compelling misinformation.”

Professor Nasu said: “The growth of social media has brought manifold problems as well as benefits to modern societies. One of the biggest challenges to the government is to decide how to strike an appropriate balance between combating fake news and respecting freedom of expression’.

The study warns that although criminal sanction may be an effective way to combat fake news, this does not mean that it should be used widely due to the chilling effect it has on the socially beneficial free flow of information.

The full article of this study can be accessed through the University of Exeter website at https://ore.exeter.ac.uk/repository/handle/10871/124088

APPOINTMENTS OF THE WEEK

RPC has hired Tom Purton as a senior Partner in the firm’s expanding Commercial practice. Formerly with Travers Smith, Purton co-founded and led the firm’s Commercial, IP and Technology Department for ten years.  He has a wealth of experience across retail, leisure, real estate, financial and business support services.

Arc Pensions Law has appointed Kris Weber as its new Legal Director for its London office. Kris joins from Slaughter and May, where he was a solicitor in their pensions team. Kris has over 25 years’ legal experience, advising both trustees and employers on the full spectrum of pensions law issues and has been a partner at several firms including Charles Russell Speechlys and Wedlake Bell. 

Dentons has appointed Paul Jarvis as CEO for its UK, Ireland and Middle East region. A banking and finance partner based in the firm’s Abu Dhabi office, where he will remain as he takes on his new role of CEO, Paul joined the firm as a trainee in 1999 and has served as Middle East Managing Partner since 2016.

Enoch Evans LLP has appointed Graham Beesley as the firm’s new practice director. Graham has had twenty years of senior finance and operational experience at law firms in the North West of the country. Most recently, Graham worked for Liverpool-based Bermans where he was a practice manager and board member with responsibility for the firm’s core business support services.

PODCASTS AND BLOGS OF THE WEEK

from FORSTERS

PODCAST BREAKING GOOD

We strongly recommend the new Forsters’ podcast Breaking Good as an innovative and accessible approach to the complexities of family law. Broadcaster Marcus Brigstock does an excellent job as an intelligent layman asking sensible questions of Forsters team of family lawyers led by Jo Edwards.

The secret, of course, lies in getting the right balance between providing enough detail to make the listener genuinely better informed without overloading them with so much that they turn off. With the light touch of many BBC Radio 4 consumer programmes Breaking Good does this very neatly. So definitely worth a listen – even if you are not planning a divorce.

Marcus Brigstock with Jo Edwsrds of Forsters and guest

You can listen to episodes of Breaking Good here, as well as subscribe on your favourite podcast services.

BLOGS

Leasehold Enfranchisement Government Statement – 7 January 2021 by Damian Greenish

The Law Commission published its Report on enfranchisement valuation – ’Report on options to reduce the price payable’ – in January 2020 and its comprehensive Reports on enfranchisement, commonhold and right to manage in July 2020. On 7 January 2021, MHCLG issued a Press Release setting out initial government thinking on those Reports (or at least certain elements of them).

What is Capital Gains Tax (CGT)? By Elizabeth Small and Olly Claridge

CGT is a tax on the gain in value made when an individual disposes of a capital asset such as a residential property. Elizabeth Small Oliver Claridge discuss.

Flexible working from home and the second home abroad by Elizabeth Small

The long-cherished dream of many people, i.e. cashing in the South London three-bed semi and buying the gorgeous villa with sea views (and good broadband) before retirement, is now a tangible possibility – or is it?

Covid may still be with us but legal business is returning to (almost) normal so please send your news, views, stories and insights to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday 8 January 2021 Edition 40

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK

– CAPITOL ATTACK MORE THAN JUST VANDALISM

Defending the sanctity of the law Courtesy of Getty images

The storming of the Capitol in Washington this week will bookend Donald Trump’s Presidential career. But the scale of the shock to the American psyche is so signifiant because it was an assault, as one US politician put it, on ‘hallowed ground’.

Western secular societies no longer revere the historic ‘sacred spaces’ of churches and cathedrals. Instead, encouragingly for lawyers, the places where politicians gather to ‘make law’ have come to fill that gap with the legislative process itself having an almost sacramental status.

The Fall of the Priests and the Rise of the Lawyers’ (Bloomsbury) by Philip R Wood QC (Hon) formerly of Allen & Overy traces the way that law has supplanted religion in holding society together. By attacking the Capitol Trump’s insurgents were tearing down America’s very faith in itself.

The Legaldiarist

In this week’s edition

– THE LEGAL DIARY OF THE WEEK

+ ‘In Her Words’ from The Next 100 Years

+ Baker McKenzie’s ‘Levelling Up’?

+ Domestic Abuse Bill lacks stranglehold

+ Surveillance WFH

– ONES TO WATCH

+ The Political Jury from Gresham College

+ Post Brexit Competition Enforcement from BIICL

THE LEGAL DIARY OF THE WEEK

In Her Words

The Next100 Years project, which celebrates the advances of women in the law, shows no sign of running out of steam with the publication of the book ‘In Her Words’ which is described as ‘A unique snapshot of women in the legal profession from around the world at a defining point in their history’.

Consisting principally of photographs of women lawyers which were taken during the project’s global Face the Future ‘photography day’ back in March 2019 the book is a validation of the width of women’s participation in the legal industry. The images are accompanied by written reflections from each individual about their journey in the profession and their hopes for the future.

To order go to https://first100years.us11.list-manage.com/track/click?u=88b273ce621586ba86aaa5812&id=c618a47040&e=30ef329c7d

Lure of London undermining regional levelling up?

Kate Stonestreet

Congratulations to Kate Stonestreet who has just been announced by Baker McKenzie as its new Global Chief Operating Officer. As well as being further evidence (see the story above) of women advancing to the most senior ranks in top law firms it is also significant in terms of British regionalism.

Part of the Government’s ‘levelling up’ agenda lies in increasing opportunities for those hailing from outside of London and the South East. Encouragingly, Stonestreet gained her degree at Northumbria University and has deep northern roots. As she herself commented, “Coming from a small village in Yorkshire in the North of England and joining the firm in a relatively junior role in Hong Kong, I am a story of what is possible at Baker McKenzie.”

Having been recruited in 1995 Stonestreet subsequently enjoyed a global career. But success inevitably led her to London where she has been based since 2004.

This highlights, however, the conundrum of regional ‘levelling up’ in the law where bright young people from the regions inevitably seem to head to the capital. Successful women lawyers can support other women. But must successful lawyers from the regions inevitably leave their roots to transform into ‘southerners’? As the co-lead on the firm’s social mobility program that might now be a question for Stonestreet to mull over.

Domestic Abuse Bill still insufficient?

Sarah Jane Lenihan

With the Domestic Abuse Bill going through the House of Lords this week Sarah Jane Lenihan of Stowe Family Law, points out that this will include, for the first time,  a statutory definition of domestic abuse which will include emotional, coercive and controlling behaviours and economic abuse. “All of which we have seen a rise in during the pandemic” she adds.  

Among other things the Domestic Abuse Bill removes the defence of ‘rough sex’. However, as Lenihan points out, there remains much debate as to whether the bill really goes far enough given that it fails to make ‘non-fatal strangulation’ a separate offence.

“Changes should be implemented promptly, particularly as we continue to live in lockdown conditions,” says Lenihan. “We need new legislation to be passed and implemented as soon as possible to help support the victims once they find the strength to seek help.”

The Surveillance Trap

Will WFH turn computers into spies in the bedroom?

Now we are back in lockdown and facing ever greater WFH can we expect a rise in the use of surveillance techniques by employers eager to keep track of what we’re getting up to (or not, as the case may be).

According to Tim Jones, head of the employment team at West Midlands law firm Higgs & Sons, great care needs to be taken in the introduction of such systems. “It’s expected that the pandemic will be the catalyst for lasting change in the workplace culture,” he says.“This is a big change for the UK and it’s completely understandable that some employers will have concerns about productivity levels and potential distractions.”

Although some software can be useful in showing how members of staff are using their time, Jones is urging businesses to be very mindful of the requirements of Article 8 of the European Convention on Human Rights which affordsemployees the right to private and family life. Now incorporated into UK law by the Human Rights Act 1998 it means that covert surveillance is subject to tight controls. “The question is, how can this law be reconciled with employee surveillance happening in their private homes?” asks Jones.

Any measures introduced must be “necessary and proportionate to a legitimate aim” says Jones. This could include assessing an employee’s productivity and performance, reducing the risk of misconduct, limiting the businesses’ exposure to liabilities and protecting confidential information of the business.

So might this be one of those areas where UK laws could start to deviate from our friends’ across the Channel. Need to keep an eye on it.

UPCOMING EVENTS – ONES TO WATCH

THE POLITICAL JURY

Monday evening 11th January 6pm-7pm (online or watch later)

Thomas Grant QC

Serving on a jury is one of the most stimulating but excruciating undertakings one could imagine. And thanks to its secrecy (at least in the UK) it is largely terra incognita even to researchers. But that will not stop Thomas Grant QC, Visiting Professor of Politics and Law at Gresham College, from reflecting on the patchy history of the jury system in England on Monday evening (11th January 6pm-7pm, online or watch later) in his lecture on The Political Jury as part of the college’s Politics of the Courtroom series.

“The arc of the jury’s development has been, in broad terms, to entrench its independence from the judge and the litigants, and entrench its freedom of decision making, and to make it more representative of the nation from which it is drawn,” says Professor Grant.

One of the points Grant will examine particularly is the willingness of juries to disregard judges’ directions in order to ‘do justice’. But sometimes judges are just as confused by the evidence as the juries. Certainly the Legaldiarist’s own experience of jury service has borne out Professor Grant’s observation that, “If the system we have means that some people are acquitted who should have been convicted, because a jury was baffled by the evidence or bamboozled by the advocacy of defence counsel, then so be it. The alternative is infinitely worse.”

To register go to https://www.gresham.ac.uk/lectures-and-events/political-jury

COMPETITION ENFORCEMENT POST-BREXIT

Monday 25 January 2021 | 16.00 – 17.00 

Now that Brexit’s ‘done’…..

The British Institute of International and Comparative Law presents a panel discussion on Competition Enforcement after Brexit: Agreements, Unilateral Conduct and State Aid

This is the second BIICL panel discussion on competition enforcement post-Brexit and will consider the enforcement issues that arise as a result of Brexit in unilateral conduct and state aid enforcement as well as enforcement against anticompetitive agreements, It will provide an overview of the competition enforcement relationship between UK and EU post Brexit.

Chair

Sir Jonathan Faull, Brunswick Group

Speakers

  • Alexandros Stratakis, Van Bael & Bellis
  • Ann Pope, Competition and Markets Authority
  • Helen Jenkins, Oxera 

This event is convened by Professor Ioannis Kokkoris, Co-Director of the Competition Law Forum, BIICL and Centre for Commercial Law Studies, QMUL

The event is free but pre-registration is required. For more information, go to: www.biicl.org/events

AND FINALLY

As 2021 gathers pace do – and we talk about more than Covid (possibly) – please send in your news, views and legal analysis and commentary to

fennell.edward@yahoo.com

We look forward to hearing from you for next week’s edition.

Edward Fennell’s LEGAL DIARY

Friday December 18th 2020 Edition 39 Xmas/New Year

Diary news, commentary, insights, appointments, blogs, webinars and arts from the legal world

SHORT THOUGHT FOR THE WEEK

Still Christmas shopping in Milan?

You’ll be pleased to know that the Legal Diary has no year-end philosophising to offer its reader. However there are plenty of other people and institutions in the legal world who do. Among a number that I have read over the past few days one that sticks out is from Italian law firm BonelliErede (not least because it appeared under an image, above, of the beautiful Galleria Vittorio Emanuelle II in Milan).

This year more than any other, courage, strength and tenacity have been crucial to get us through the trying times we are living in,BonelliErede said, and certainly northern Italy has seen more than its fair share of the Covid catastrophe. The firm adds that, ‘Our daily commitment is aimed at becoming closer to our clients and the communities to which we belong. We do so in a sincere spirit of service both to those we work with and to the communities and countries we operate in.’

Admirable sentiments which, perhaps, other law firms would share. But one of the few good pieces of news at the end of this year is the vindication of the many Sub-Postmasters who were wrongly accused (and often convicted) of theft with dire personal consequences following the malfunction of the ‘Horizon’ Post Office computer system. The Post Office now accepts there was ‘an affront to the public conscience’ in the way the cases were conducted. Maybe, at the end of this awful year, the lawyers who pursued these innocents should review their actions in the light of the sentiments espoused by BonelliEredi.

A Merry Christmas to you (but I fear little chance of a Happy New Year).

The LegalDiarist

Good Bye ….for Now

This is our final Legal Diary for this year and the Christmas/New Year period. If we survive the next few weeks we hope to be back next year on Friday January 8th.

Do send your news, views and insights regarding the year ahead post-Brexit to

fennell.edward@yahoo.com

And do circulate this to your colleagues and friends.

IN THIS WEEK’S EDITION

THE LEGAL DIARY OF THE WEEK

– Xmas E-Cards have more fun

– CMA wants further change to the legal profession

– Self-congratulatory Xmas messages

– Law students work pro bono

– Client-service apps for distributed law firms

WEBINARS FOR NEXT YEAR

+ BIICL

+ BDB PITMANS

THE LEGAL DIARY OF THE WEEK

Have yourself a non-Covid little Christmas card

Now that the traditional law firm Christmas card is as dead as last week’s Covid rules it has been entertaining and encouraging to see how much inventiveness is going into the e-card (or at least some of them). Among the images that struck me this year are the dragged-up partners at Hughes Fowler Carruthers.

Love those bow ties that bind

But maybe this self-mocking is a British thing. US firm Cadwalader could hardly come up with a duller more virtue-signalling image than its minute passport photo assemblage of the crew-shot. But maybe the way it has selected a snowflake to ’cancel’ some of the faces is an ironic joke. (Somehow I suspect not).

Meanwhile Farrer & Co’s clever quiz featuring reputation-damaging headlines was a lot of fun (although we were slightly surprised to read that ‘the Reputation Management team at Farrer & Co would like to bid a very fond farewell to 2020’ – most of us would say good riddance).

Choice picks of the press

Further change signalled for legal profession

Andrea Coscelli, Chief Executive of the CMA

Meanwhile back in the real world it looks like another review of the current framework for legal services is on the cards following the Competition and Markets Authority’s latest recommendations in the wake of Professor Stephen Mayson’s report earlier this year.

Already the CMA’s assesment is winning aupport from some of the key players. “Although the legal services sector is becoming more competitive, there are still areas requiring intervention in the interests of consumers that can only be achieved by legislative reform,” said Professor Chris Bones, the chair of CILEx (the Chartered Institute of Legal Executives).

Professor Bones went on to say that lawyers needed to be regulated by the work they do rather than their professional title.“The rigidity of the current framework does not recognise large pockets of existing providers, and without additional flexibility risks excluding also those novel technologies and solutions that lawtech can bring for the benefit of consumers and healthy consumer choice.”

Professor Bones added that the legal profession had much to be proud of but that the CMA’s recommendations should “help open it up to the large swathe of the population increasingly denied access to otherwise affordable and effective legal representation.”

Meanwhile there is also appreciation that the CMA has recognised recent improvements. ‘It is very encouraging that the CMA has concluded that there is already progress on better information for consumers following the measures we introduced two years ago,” commented Sheila Kumar, Chief Executive of the Council for Licensed Conveyancers (CLC). “We have begun work with other regulators on the next step, to identify quality information that can guide consumer choice. We will also be keeping compliance by CLC regulated practices under regular review in the consumer and client interest.”

So as Andrea Coscelli, the CMA’s CEO observes, “It is positive to see changes that have already been made, but more progress is needed.

We encourage the Ministry of Justice, the Legal Services Board and other legal services regulators to continue to work towards reform and to make sure the sector works well for consumers long into the future.”

For more see https://www.gov.uk/government/news/cma-publishes-review-of-progress-in-legal-services-sector

Darlings, you’ve all been wonderful

As usual we have an array of end-of-year commendations, congratulations and self-congratulations from law firms and organisations linked to the law. Some of these, however, might best be kept for internal consumption only. They are probably sincere but they might look gauche to an outside observer.

One such came from John Rogers, Chief Executive of Skills for Justice the organisation which oversees training for policing and law enforcement, community justice and offender management, courts tribunals and prosecution.

I have been extremely proud in the way that our staff at Skill for Justice have responded to the pandemic,” he says. “At heart, we are a values-based organisation, and our values of respect, innovation, passion, and integrity have never been more evident in the way our staff work, than in the last eight months. They have focused on how we can best support those providing front-line services, and have quickly adapted our own services to provide continuity, and the most effective support possible through the pandemic – and I know from the feedback we have received that this has been very appreciated.”

Put this alongside yesterday’s observations from Amanda Pinto QC, Chair of the Bar Council, who said: “The backlog of cases in the Crown Court increased quarter on quarter, with greater numbers of trials being put off for longer. An overall increase of 20% in time from receipt to completion of cases is very worrying because it includes those cases that do not even involve a trial. Even in the magistrates’ courts, where significant inroads have been made to achieve more cases disposed of than received, the outstanding caseload remains a phenomenal 43% higher than the same period last year.”

So, yes, no doubt everyone has worked hard and tried to do their best. But at this stage in the war against Covid maybe more prudent just to admit how tough it is.

Students’ Pro Bono work ramped up by Covid

Perhaps law students are one group whose contribution to countering the effects of Covid has been under-appreciated. According to The Law School Pro Bono and Clinic Report, just published byLawWorks and CLEO (the Clinical Legal Education Organisation ), the pandemic has strengthened students’ enthusiasm for pro bono volunteering, and also required them to adapt to LegalTech in order to maintain delivery for vulnerable people. According to the report, law schools are doing more pro bono work than ever before. Over 90 per cent of student respondents said that the law school they attended carried out pro bono work, with 75 per cent of law schools  reporting that their institutions plan to extend existing pro bono work opportunities.

I know law schools recognise the importance of having a law Clinic and offering pro bono work experience for students,” said Penny Carey vice Chair of the Committee of Heads of UK Law Schools. “This not only equips students with employability skills, but also strengthens the university’s relationships with its local community – from the law firms who will be employing students, to charities that need support, and to the public who need access to justice. It is heartening to hear the clinic students surveyed rating ‘helping others’ as equally as highly as improving their CV.”

It is pointed out that the findings come at a critical time in the evolution of legal education, as regulatory and training requirements are overhauled. From next year in England and Wales, the Solicitors Regulation Authority (SRA) will introduce the new Solicitors Qualifying Exam (SQE), which will include a requirement for work-based learning that can be undertaken in clinics. It will eventually replace the current route to practice – the Legal Practice Course (LPC).

A Feel-Good experience at Christmas?

Nigel Clark of nexa

It’s anyone’s guess what the practice of law will look like come December 2021. Will WFH be so-last-year? Or will the office commute have become a long-lost memory.

What does seem likely though is the inexorable growth of ‘distributed’ law firms. A good example is nexa law which has seen its lawyer head count grow by 300% during 2020. nexa’s Co-CEO Nigel Clark says that he is committed to completely re-imagining what it’s like to work in law in the UK.  We want to save clients time and give them a feel-good experience,” he says.

One of the ways of doing this is by the greater use of lawtech with client-service apps now likely to be the next big thing. nexa already has its own app available on Apple’s App Store and on Google’s Play Store. “The first priority for the app was to save time and hassle with onboarding new business or individual clients; a process that used to require laborious certification of documents and other KYC (know your customer) and AML (anti-money laundering) requirements,” says Nigel Clark.

Possibly worth checking out if you have any slack time VAHing (vegetating at home) on Christmas Day.

AND SOME WEBINARS TO LOOK FORWARD TO……

from the British Institute of International and Comparative Law

Teaching International Law Webinar Series

8 January – 23 April 2021 (online)

The practice of teaching international law is conducted in a wide range of contexts across the world by a host of different actors – including scholars, practitioners, civil society groups, governments, and international organisations. It is somewhat surprising, therefore, that reflections and collaborations on the practice of teaching international law remain relatively rare.

In recent decades, notable contributions concerning international legal pedagogy include: comparative analyses of how different national communities of international lawyers construct their understanding of international law, regional and national reflections on the teaching of international law, critical perspectives on the politics of teaching international law, as well as reflections on the professionalisation of international legal education, teaching techniques, and the use of new technologies for teaching international law.

This series composed of 10 webinars over 5 sessions will explore some of these issues and developments. Bringing together teachers of international law from across the globe, and who apply a range of techniques and approaches to their teaching, the series is sure to inform and inspire.

Webinars

  • Central Issues from the Periphery
  • Teaching International Law in Asia
  • Tools and Techniques in Teaching International Law
  • Teaching IHL in Crisis: A Strategic Response for Troubled Times
  • The Promises and Perils of the Pedagogy of International Law in the Philippine State of Exception
  • Critical Perspectives on Teaching International Law
  • New Directions in Core Subjects of International Law Teaching
  • The International Law Teacher

Pricing and Registration

This webinar series is free to attend but pre-registration is required.

For more information, please visit: www.biicl.org/events

BDB PITMANS’ WEBINAR INVITATION:

‘COVID-19 VACCINES – WHAT DO THEY MEAN FOR EMPLOYERS?’

Thursday 14 January @ 9.00 am

After the chaos and disruption caused by COVID-19, the news that a vaccine is being made available offers hope that we may soon be able to return to some form of normality.

The availability of a vaccine will raise a number of important and potentially complex workplace issues for employers. BDB Pitmans Employment Team would like to invite you to our first webinar of 2021 where we will consider a range of questions on this topic including:

  • Can employers require employees to be vaccinated?
  • Can an employee’s refusal be a disciplinary offence?
  • Do employees have to disclose if they’ve been vaccinated?
  • Can vaccinations be taken into account when considering sick pay?
  • What discrimination risks could vaccinations pose?
  • Can employers require employees to return to the office once they are vaccinated?
  • Can employers buy the vaccine and give it to their employees?

This will be an interactive session where you will be able to ask questions of our expert panel and we would welcome any advanced questions. If you would like to submit one, please click here.

Register for your place by clicking here or by using the RSVP button on this mailing.

The session will be held using Zoom, a link will be sent to you in your registration confirmation email and will be resent on the morning of the webinar.

We hope you can join us.

Follow us @BDBPitmans #ThinkTalkLaw

To register go to:

https://sites-bdbpitmans.vuturevx.com/59/2121/landing-pages/rsvp-(blank).asp?sid=c6528f91-3176-44bd-a629-d73ab4268011

Happy Christmas – and Best Wishes for a Great Brexit!

Edward Fennell’s LEGAL DIARY

Friday December 11th 2020 Edition 38

Diary news, commentary, insights, appointments, blogs, webinars and arts from the legal world

SHORT THOUGHT FOR THE WEEK – BUSY, OR WHAT?

The latest figures for activity in the legal sector shows a bewildering variation of fortunes. The stand out figures are that property and insolvency work has crashed (by 31% and 18% respectively) while tax has grown by almost 14% and commercial work is still very healthy.

How this will shake out over the next six months remains to be seen once Brexit and the Covid-cure are factored in.

But it’s a funny old world and while crime and litigation are allegedly the hardest hit sectors of all anecdotal evidence suggests a rather different picture. For example, one highly respected and experienced criminal barrister outside of London described the state of play as follows:

I’m working harder than ever at the moment, with a tsunami of work coming my way. The CPS have taken their in-house advocates out of court for the next six months so we are having to cope with cases that haven’t been properly prepared or dealt with and most are way out of date. They demand written Advices on evidence, etc., like yesterday.”

So there are already winners and losers emerging from this crisis. And where any single individual ends up looks like a complete lottery.

The LegalDiarist

IN THIS WEEK’S EDITION

LEGAL DIARY OF THE WEEK

+ Political nouse in law firms

+ Data protection post-Brexit

+‘Leasehold Enfranchisement’ tome finally arrives

+Irwin Mitchell’s cuddly image

LEGAL GUIDE OF THE WEEK – Eversheds Sutherland’s Guide to Public Inquiries

LEGAL INSIGHT OF THE WEEK – Do we have to be Covid-jabbed?

COURT REPORT OF THE WEEK – Inaccessibility of British Courts

LEGAL VIDEO OF THE WEEK – Lady Dorrian

THE LEGAL DIARY OF THE WEEK

Political Nouse

Need a guided tour?

Much is being made of the recruitment by DLA Piper of Andy Tyrie – now, of course, Lord Tyrie – the former chair of the Competition and Markets Authority. It is certainly part of a growing trend for highly experienced politicians (or those with political skills and experience) to be signed up by law firms. Above all, it reflects the widening of the skillsets offered by top firms who recognise that clients want more than just legal advice – they want strategic law counsel. As DLA Piper itself says, ‘[Lord Tyrie’s] appointment is a reflection of increasing client need to operate in fast-changing regulatory environments, where understanding and adapting to political opportunity and risk is as important as receiving high quality legal and regulatory advice. Businesses are, as a consequence, looking to their law firms to provide support that goes beyond traditional legal services. This is a trend that is here to stay.’

In the midst of the Brexit crisis, however, it would be hard to judge whose opinion could be trusted. Almost nobody has better political or legal credentials than Ken ClarkeQC – now Baron Clarke, the former Chancellor of the Exchequer and holder of most other top jobs in Cabinet – but just a few days ago he tweeted regarding the Brexit negotiations “I understand EU officials are trying to track down Noel Edmonds to help facilitate a ‘deal or no deal’ decision. Mr Blobby is already in attendance from the UK government.” When such incisive insider insights come for free who needs to pay for them via a law firm?

Date protection: I’ll show you mine if…..

As we all sit on the edge of our seats waiting for Sunday’s decision on that deal here’s an interesting contribution from Kennedys around the issue of data protection post-Brexit.

Looking ahead the firm comments that once an EU adequacy decision has been obtained (on the UK’s level of data protection), the UK should adopt “a much more pragmatic approach to adequacy criteria and adequacy decisions for third countries than the EU does.” The firm goes on to say that while there is a balance to be struck between the rights and freedoms of individuals and the free flow of data across borders, the EU adequacy decision-making process has, in its view, been too bureaucratic and conservative. “In 25 years, the EU has made 13 adequacy decisions, seven of which relate to small states which are adjacent to the EU. Only two of those countries are in the top 10 trading partners of the EU.

“More than 100 countries globally have data privacy laws, and while those laws vary widely in their level of protection for personal data, and very few offer a truly equivalent standard of privacy protection under the GDPR, there are many jurisdictions that the UK could declare adequate without significantly compromising the rights and freedoms of UK citizens.”

Whether this is the freedom for the UK to set its own rules that Boris has in mind remains to be seen. But it is certainly an interesting example of what that freedom might mean.

Big Red Christmas Book

This being the season of good cheer my spirits rose earlier this week as a large box arrived on my doorstep from Thomson Reuters. In years gone by such boxes often contained (although not necessarily from Reuters) a jolly, small bottle of gin or something similar. Imagine then my feelings when what emerged was a jolly heavy copy of the seventh edition of Hague’s ‘Leasehold Enfranchisement’ edited by Anthony Radevsky (Barrister, Inner Temple) and Damian Greenish (Consultant Solicitor to Forsters LLP).

However my initial disappointment swiftly changed to wonder at the sheer size of the endeavour of the book. As Martin Rodger QC comments in his foreword, this is the fifth revision of the work in two decades and reflects the torrent of new rules and regulations in this complicated field.

Having a family member who not so recently wasted several thousands of pounds in trying to pursue a commonhold the LegalDiarist had some direct interest in the subject. Again as Martin Rodger observed, “Commonhold has not yet caught on and an alternative approach involving extensive changes to enfranchisement has been recommended.” Added to which, he says, “Along with many more egregious abuses, the cost of exercising enfranchisement rights has contributed to a wider climate of dissatisfaction with leasehold tenure.”

So while I cannot suggest that Reuters will intoxicate me this Christmas I can say they are keeping me hot under the collar.

IMage Rites

Wow! I almost smashed my boiled egg to smithereens at Monday breakfast time when I saw the family-friendly ad from Irwin Mitchell in The Times.

First it was the firm’s strap line which I had not noticed before ‘Expert Hand – Human Touch’. Are you sure this is a law firm we’re talking about here? And then there was the image – a stay-at-home dad jiggling a small blond child on his knee. ’Protect what matters most’ it proclaimed ‘In challenging times we are here for you, your family or your business’.

This is not law firms – or at least Irwin Mitchell – as we are accustomed to seeing them. Mind you the ad also carried on it the logo of ‘England Rugby’ with the slogan ‘Official legal partner’. That’s more like it. I reckon those headbangers are much more IM’s style and will be giving them plenty of work in the years to come.

 LEGAL GUIDE OF THE WEEK THE PRACTICAL GUIDE TO PUBLIC INQUIRIES

Avoid getting lost in the maze

Eversheds Sutherland’s Public Inquiries & Investigations team, together with Dr Emma Ireton of Nottingham Law School have authored a new guidebook The Practical Guide to Public Inquiries, as a stage-by-stage guide on the process of public inquiries,

 Aimed at legal practitioners, participants, witnesses and those with an interest in public inquiries the book offers practical advice and guidance on the functions, processes and procedures of a public inquiry. Based on the team’s considerable experience from inquiries such as the Bloody Sunday Inquiry, Mid Staffordshire NHS Foundation Trust Inquiry, Leveson Inquiry and Grenfell Tower Inquiry it provides guidance on the life-cycle of a public inquiry. The topics covered range from the appointment of the chair to selecting an appropriate venue, to using experts and publishing inquiry findings.

“We know first-hand how challenging public inquiries can be, often dealing with personal, emotional and sensitive topics,” commented Isabelle Mitchell, a principal associate at the firm. “With this context, it’s crucial public inquiries are facilitated in a proper and professional way, and we hope the book goes some distance in ensuring this by offering very real, practical advice.”

Meanwhile Sir Robert Owen, Chair, Litvinenko Inquiry observed, “The authors are to be complimented on an impressively comprehensive and authoritative guide to public inquiries. It addresses every aspect of their establishment and conduct, and provides clear guidance supplemented by eminently practical checklists, a boon to the busy practitioner. Such a guide is much needed, and will prove invaluable to all those involved in the wide range of statutory, non-statutory and other forms of inquiry that have become such a feature of our public life.” 


More information about The Practical Guide to Public Inquiries is available here.

LEGAL INSIGHT OF THE WEEK : COVID JAB – WHOSE RIGHT TO DECIDE?

Sarah Calderwood

Sarah Calderwood, Human Resources and Employment Lawyer at Slater Heelis discusses some of the legal issues which might surface in the months to come and what the rules are when it comes to employers asking staff to get the vaccination.

This week has brought exciting advancements in the treatment of Covid-19 and as the first 800,000 doses of the vaccine are rolled out in the coming weeks, the UK public is beginning to ask about their rights and whether their employer can force them to be immunised.

Under current health and safety legislation, employers have a duty to protect the health of employees, anyone on their premises and anyone else effected by the business. Existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation. Here are some of the other questions that might arise:

 Does my employer need to know if I have been vaccinated against Covid-19?

 “Employers may have to make data protection considerations as the Information Chief Commissioner’s Office (ICO) has confirmed that an employee’s health information is special category personal data. In the context of vaccinations, a permitted ground for processing special category data would be for heath purposes. However, employers must ensure they are handling their employee’s data with care and the ICO advises that employers only need to obtain confirmation whether the employee has had the vaccine and collecting any more data is unnecessary and excessive.”

Can my employer add an immunisation clause to my contract?

 “If employers want to make the Covid vaccine a contractual requirement, changes in the terms of the contract would need to be agreed by staff. Employers enforcing this change without employees’ express and implied agreement would be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. Employers could find it difficult to show this change in terms as reasonable and may struggle to introduce this type of agreement for existing employees.

“If employers were to introduce an immunisation clause into new starters’ contracts, it would have to be in a reasonable manner which would include consultations with any employees worried about the vaccine for any reason.”

 Employers cannot force their staff to get the vaccine or discipline those who refuse to do so.

 “Overall, vaccinating employees without their consent would be criminal assault and probably be a repudiatory breach of contract. Although there is no case law, dismissing an employee because they do not want a Covid vaccine would likely be considered unfair dismissal as it is unusual for an employer to force staff to undergo a medical procedure. Vaccine requirements could also subject employers to discrimination claims as individuals may not be able to get vaccinated on health or religious grounds.”

 What can an employer do to encourage vaccination?

 “Employers who are keen for their staff to be immunised should write a non-contractual policy outlining the benefits of getting the vaccine and any arrangements for staff to be immunised. Any employees who refuse the vaccine could be met privately to explain the benefits again, but employers should not force or discipline staff who refuse.”

Sarah Calderwood is a Human Resources and Employment lawyer at Slater Heelis with over 17 years advising on employment related issue. To find out more, visit the website .

COURT REPORT OF THE WEEK: DIFFICULTY OF ACCESS TO BRITISH COURTS  

Leeds Combined Courts – One of the few to pass muster

A new report from Bolt Burdon Kemp highlights deficiencies in courts’ lay-out and facilities for serving the disabled

British courts are highly user-unfriendly when it comes to the disabled and those with special needs according to an investigation by specialist lawyers Bolt Burdon Kemp The new research assessed 444 courthouses in England, Wales and Scotland on 11 accessibility criteria, namely the availability of: 

  • Disabled parking
  • Accessible toilets
  • Lifts
  • Hearing loop systems
  • Interview rooms 
  • Baby changing facilities
  • Video conference facilities
  • Wireless internet access
  • Witness support facilities
  • And offering wheelchair access and allowing assistant dogs into the building

The main finding of the research was that only 2% of courthouses across Britain were able to meet all 11 of the criteria listed above. This is a total of eight courthouses, three of which are based in the South West of England: 

  • Aberystwyth Justice Centre (Wales)
  • Leeds Combined Court Centre (North East England)
  • Manchester Civil Justice Centre (Civil and Family Courts) (North West England)
  • Plymouth Combined Court (South West England)
  • Taunton Magistrates’ Court, Tribunals and Family Hearing Centre (South West England)
  • Weston-Super-Mare County Court and Family Court (South West England)
  • Wigan and Leigh Magistrates’ Court (North West England)
  • Worcester Combined Court (Midlands)

According to the research:

Over three-quarters of courthouses (84%) are not fully accessible for wheelchair users. 

People who use wheelchairs or other mobility aids, or suffer from chronic pain or fatigue, may find it difficult to navigate courthouses. Particularly so if the courthouse is large or is made up of several floors, requiring both time and effort that could become exhausting. Not to mention any lack of availability of functional lifts if hearings are taking place on upper floors.  

In fact only 16% of courthouses in England, Scotland and Wales are fully accessible, offering wheelchair access, disabled parking and accessible toilets. Again the South West leads the way, with 30% of its courthouses being fully accessible:  

To help those who might have to grapple with the court system Bolt Burdon Kemp has created an interactive walkthrough of a typical British courthouse. The experience is intended to help people with hidden and visible disabilities prepare for their upcoming hearing. It also takes into account people with care responsibilities – another demographic that may find it difficult to attend court hearings. 

See the new interactive experiencewhich guides you through the stages of attending a typical British courthouse hearing, with a focus on people with hidden and visible disabilities.

LEGAL VIDEO OF THE WEEK – LADY DORRIAN 

See LEGALLY HERS new film interview with of Lady Dorrian, sponsored by Ashurst

As the Lord Justice Clerk, Lady Dorrian is the most senior woman judge in Scotland. Her appointment to this role made history in 2016 as no woman had ever served at this level in the Scottish legal system before.

Leeona Dorrian’s status as a trailblazer began decades prior when she became the first woman to serve as Advocate Despute in the Faculty of Advocates

The LEGAL DIARY looks forward to being back next week for our last edition before a Christmas/New Year break – so do send in your seasonal stories, insights and information to

fennell.edward@yahoo.com

And a happy Brexit to you all.

Edward Fennell’s LEGAL DIARY

Friday December 4th 2020 Edition 37

Diary news, commentary, insights, appointments, blogs, webinars and arts from the legal world

SHORT THOUGHT FOR THE WEEK – SO WHERE DO WE GO FROM HERE?

Anyone in?

Law firms Burges Salmon and Herbert Smith Freehills (along with big name supermarkets) are earning plaudits for doing the right thing by handing back their furlough funding. Meanwhile Clifford Chance is now being celebrated for its role in deploying IP expertise to speed through approval of the anti-Covid virus in what might be seen as ‘Dambuster’ terms.

So when the dust settles on this terrible crisis it will start to become evident who has ‘had a good Covid’ and who has ‘done well out of Covid’ – in much the same way as happened to individuals and industries after the world wars.

In keeping with the talk of ‘building back better’, business is now looking forward to what the new ‘new normal’ will be like. But as the LexisNexis Bellwether report (see below) illustrates, some fundamental questions have arisen not least for law firms. Is WFH viable long-term? Should the capacity to operate solo and be a self-starter loom larger in recruitment? These and many other questions remain to be resolved.

The LegalDiarist

IN THIS WEEK’s EDITION

+ THE LEGAL DIARY OF THE WEEK

– LexisNexis Bellwether Report

– Travers Smith ‘London Business’ report

– Peace Palace pays off

– Farrer’s lawyer in Pro Bono award at DadsHouse

– Bird & Bird takes flight with digital assets

+ LEGAL INSIGHT OF THE WEEK – THE COVID HACK

+ WEBINARS OF THE WEEK from BIICL and 42 Bedford Row

LEGAL DIARY OF THE WEEK

Big waves but less stormy weather ahead suggests latest Bellwether Report

With an anti-Covid19 vaccine now almost on our doorsteps law firms are starting to feel rather more positive about the future according to the latest Bellwether Report from LexisNexis which was published yesterday.

Ironically most concern is now focusing on the issues arising from homeworking and whether, overall, it is a good or bad thing for lawyers’ effectiveness and motivation. How quickly to get back into the office and whether we should do so at all will now be weighing heavily on managers’ minds.

The findings of the survey include:

  • The devastating impacts of COVID have started to ease and firms are regaining their confidence.  4 in 5 firms believe they will be in business for the longer term.
  • 49% say COVID is one of their top 3 worries, down from 63% at the height of the pandemic.
  • With move to homeworking, 58% flag staff welfare as one of their top concerns. 3 out of 4 lawyers are now experiencing feelings of isolation and a lack of motivation.
  • Miscommunication or insufficient communication is a growing problem for homeworkers – 44% see this as a problem, compared to 26% in March. 
  • 1 in 4 firms are implementing cuts – 23% versus 4% during first lockdown.
  • 73% of respondents see COVID as an opportunity to drive change and innovation.
  • 40% of firms are changing their practice area base, whether that be becoming more generalist or specialist, with the majority deciding to specialise.

“Law firms have worked exceptionally hard over the last 6 months to continue practicing and supporting their clients,” said Marin Daley, Small Law lead at LexisNexis. “The relief and positivism in this latest Bellwether is notable.  However, it is clear that with one problem receding, the future is still uncertain.”

The report can be downloaded from: www.lexisnexis.co.uk/Bellwether2020

In-House fret over challenge of virtual team work

Who needs the Tube when you’ve got teams?

Meanwhile a report published this week by DLA Piper on the role of In-House legal teams  – the WIN (What In-house lawyers Need) Insights Report – has also highlighted the importance of new ways of working. “Since the global pandemic began, many in-house legal teams’ priorities and working practices have changed,” commented Andrew Darwin, the firm’s Global Co-Chairman. “It is encouraging to see a shift towards a more strategic and advisory role, which is hoped will continue as we all return to normality. However, with fewer resources, teams are under pressure to deliver more for less.  How to build and maintain internal and external relationships in the virtual world has become much more of a focus along with the prioritization of health and wellbeing of team members.”

In-house teams realise that now, more than ever, developing relationships is key to securing their future. However, this is clearly made more difficult when working remotely. As a result, the report goes on to say, in-house lawyers now value collaboration tools most when it comes to the tech that’s helped whilst remote working Indeed, 80% are expecting the speed of technology adoption to increase to help them achieve something akin to in-person human interaction, rather than focusing purely on efficiency, as has traditionally been the case in legal innovation.

For a full copy of the report please download here.

Maybe it’s a London thing

Opening up after the Campden Lockdown – Greener, fairer?

Along the same theme of ‘life after Covid’ Travers Smith has partnered with the CBI and University College London to produce this year’s London Business Survey, which shows reasons for longer-term optimism, and demonstrates that London businesses have set their sights on ‘rebuilding a fairer, greener and more inclusive economy in the wake of the Covid-19 pandemic’. This is despite the fact that two thirds of firms in the capital experienced lower output this year.

Key Findings from the report include:

Brexit

  • Almost one third of respondents (32%) said they were unprepared for the impact of a possible no-deal Brexit – and 58% said Covid-19 had impeded their Brexit preparedness.
  • A trade deal with the EU, including comprehensive services coverage, was a priority for London’s recovery with more firms (72%) than any other factor. 

 Covid

  • Four out of five respondents (80%) said their output had been impacted by the pandemic. 68% had yet to see trade return to normal (even before the second national lockdown) and 34% expected to still be operating below normal levels in a year.
  • Companies operating in arts, entertainment and recreation face a tough outlook. 94% of respondents from this sector have yet to see a recovery, and three quarters (75%) expect their business to still be suffering in 12 months’ time.  

Priorities

  • Investing in innovation and technology (55%), supporting employees’ mental health and wellbeing (53%) and supporting new ways of working (51%) were immediate priorities for most respondents.
  • In the longer-term, improving diversity and inclusion (58%), developing or enhancing sustainability and net-zero strategies (53%) and supporting social mobility (45%) were the most common goals.

“I hope that the survey findings will provide a good template for how we can start to rebuild London’s economy and support businesses in the capital to unlock their potential in the post-Covid world,” said Travers Smith’s Senior Partner Kathleen Russ.

View the full report at https://www.traverssmith.com/media/6484/cbi-london-business-survey-2020-december-2020.pdf

Mash up of food bank and legal advice charity gets Farrers on the Pro Bono shortlist

In the pink, Farrers partner Simon Bruce along with DadsHouse founder Billy McGranaghan and supporters at the DadsHouse law clinic

Congratulations to Simon Bruce, Senior Counsel in the family team at Farrer & Co, for being shortlisted for the ‘Best New Pro Bono Activity’ Award at this week’s LawWorks Pro Bono Awards for his involvement in the charity, DadsHouse.

Inspired by Simon, DadsHouse now offers free advice on issues from child contact to financial disputes, at a time when the family courts are facing unprecedented pressure and families are in crisis in the wake of the pandemic. In the six months since it opened back in the Spring, the DadsHouse’s law clinic has helped over 100 fathers and mothers in need of legal support.

Significantly DadsHouse was actually established primarily as a foodbank but it became apparent that many of its clients were also in need of family law advice. It was also the first charity in Europe to offer fathers temporary accommodation during separation, divorce and bereavement. 

“Initially when dads and mums come to use our food bank, sometimes as a referral from social services, they have no idea that we are more than a food bank,” explains DadsHouse founder, Billy McGranaghan. “We have started to see these parents come to us increasingly for support through our law clinic as well.”

Peace is good for business


All we are saying is give….. the Peace Palace some credit

 A recent study by Decisio (funded by the Carnegie Foundation) shows that the Peace Palace in The Hague – which houses two of the most important Courts in the world, the United Nations International Court of Justice and the Permanent Court of Arbitration – contributes very positively to the international economy. According to the report “By solving conflicts in the courtroom, the Courts in the Palace help avoiding billions of damage and loss as a result of warfare.”

Although it is difficulty to quantify exactly how much money is saved by ‘giving peace a chance’ the report posits three different scenarios ranging from solving one small-scale conflict (thereby saving 18 bn. Euros) through to solving four small-scale conflicts and two large-scale conflicts (thereby saving 500 bn. euros).

Keeping the peace is also a big jobs generator, says the report, not least for the Dutch hosts. Apparently the Peace Palace accounts for more than 720 jobs (of which 229 are within the Palace) and the institutions located at the Peace Palace annually spend 120 million euros in the Netherlands, contributing an added value of 70 million euros to the Dutch GDP. (So nice work if you can get it).

More widely, however, the researchers state that ‘a high rule of law score saves money, brings trust and investments and prevents people from getting stress-related diseases’.

“In the Peace Palace, international jurisdiction, cultural heritage and international relations come together on neutral ground and the fruits of these endeavors are made accessible to a broad public,” explains Mr. Piet Hein Donner, chairman of the board of the Carnegie Foundation and former Minister of Justice of the Netherlands. “We can be proud of this, but at the same time, we also have an obligation to maintain this successful concept for future generations.”

In other words, peace is for keeps, not just for Christmas.

The full report can be read and downloaded on the website of the Peace Palace.

Link: https://www.vredespaleis.nl/wp-content/uploads/2020/12/Decisio-Economic-and-social-impact-of-the-Peace-Palace.pdf 

Bird & Bird takes flight with digital assets

It’s another sign of the times that technology-led Bird & Bird has just launched a new cross-practice group to deliver what they call ‘a coherent firmwide strategy to help clients across all sectors and jurisdictions build and implement effective digital rights and assets strategies’.

The argument for the new group is strong. “Digital information, data, content, currencies and online reputations are a valuable part of the asset base of many of our clients,” the firm says. “These digital assets are often essential to the effective understanding, management, operation and growth of organisations, and at the forefront of their thinking as they look ahead to a world of interconnected devices and ultrafast connectivity. Good digital asset management is commonly a core component of compliance and positive reputation management in regulated industries. Investors, buyers and financiers are taking an increasingly keen interest in how digital assets can be leveraged, and many businesses – especially those that are strongly digital – are progressively valued on the scale and potential of their digital assets rather than purely traditional metrics.”

So, as we have seen this week in spades, goodbye bricks-and-mortar. Welcome to the new world of digital rights and assets.

LEGAL INSIGHT OF THE WEEK – HACKING COVID CURE

In the wake of theof the alleged international vaccine supply chain cyber hack, Mark Tibbs Cyber Intelligence Director at Mishcon de Reya  observes:

 “Following the development of viable vaccines, many nations are now in a race to vaccinate their populations and this news is a sign that intelligence priorities have changed. Previously in the year, vaccine research organisations were targeted but this new development suggests now attackers are seemingly interested in not just how the vaccine is made or works, but how to store and distribute it effectively. There appears to be a sense that those who can vaccinate fastest and most effectively have a lot to gain, even though the process should not be seen as a race.

 “Our research into cybercrime this year shows that the reduced economic impact from COVID-19 will be the biggest driver of increased cybercrime. We expect to see cyber criminals begin to use the vaccine to push malicious e-mails and other attacks, as they have with other issues such as lockdown and stimulus packages.”

WEBINARS OF THE WEEK

IT’S A LAWYER’S LIFE: WHAT MAKES A GOOD LAWYER?

Wednesday 9 December at 6.00pm

A webinar full of advice, tips and anecdotes from a distinguished panel including Sir Anthony Hooper (former Court of Appeal Law Lord), HHJ Vera Mayer (senior Family court judge), HHJ Edward Connell (Criminal Court judge), Barrister Joanna Hardy chaired by Gemma Taylor QC and Rehna Azim.  To register and receive a personal invitation, please follow this link:                https://us02web.zoom.us/webinar/register/WN_1YbJ18C9Tj6JnvmRBqJ0GA  

Annual Harry Weinrebe Memorial Lecture: Inclusivity and the Law: Do We Need to Prohibit Class Discrimination?

10 December 2020 | 16.00 – 17.30 (UK time)


This year, the Harry Weinrebe Memorial Lecture will celebrate Human Rights Day by highlighting the key cross-cutting human right: the right to be free from discrimination. The debate will focus on the issue of inclusivity within the legal sphere to assess whether the current grounds prohibiting discrimination under human rights law are sufficient to ensure equal treatment before the law and, more widely, in our societies. In particular, experts will discuss whether the existing prohibition of discrimination based on social origin under human rights law should be strengthened and, if so, how?
 

Chair
Joshua Rozenberg 

Speakers

  • Professor Geraldine Van Bueren QC, British Institute of International and Comparative Law
  • Michele Statz, University of Minnesota
  • Alexandra Wilson, 5 St Andrew’s Hill 
  • Professor Sandra Fredman FBA, QC hon, University of Oxford


Event convened by Kristin Hausler, Dorset Senior Research Fellow in Public International Law and Director, Centre for International Law BIICL

Pricing and Registration

This event is free to attend but pre-registration is required below.https://www.biicl.org/events/11444/harry-weinrebe-memorial-lecture-inclusivity-and-the-law

We are already looking forward to next week’s edition so please send your news, views and insights to

fennell.edward@yahoo.com

And do pass this on to colleagues and comrades

Edward Fennell’s LEGAL DIARY

Friday November 27th 2020 Edition 36

Diary news, commentary, insights, appointments, blogs, webinars and arts from the legal world

SHORT THOUGHT FOR THE WEEK

– FEELING ‘FERVENT’ ABOUT THE LAW?

Is this how the Government would like to see the Supreme Court – A vacant space?

Yesterday the CityUK launched its tenth annual report on the state of London’s corporate law industry. On the whole it was upbeat (see below) despite Brexit and the Corona crisis. But more interesting in some ways was the jousting on the margins between James Palmer (the top man at Herbert Smith Freehills and chair of the legal sector group at CityUK) and the Lord Chancellor, Robert Buckland.

James Palmer commented that in recent times the government’s rhetoric had been ‘less than supportive of legal services’ – the rule of law is crucial, he said, justice is of core importance. In other words a stinging challenge to the next speaker. Trying to retrieve the situation a few minutes later Buckland insisted that he wanted to reassure the audience of the government’s commitment to the rule of law – a principle to which he ‘fervently adhered’ (said with Welsh passion).

Buckland seems an honourable man. He probably meant it. Whether that is true of all his cabinet colleagues remains to be seen.

The LegalDiarist

IN THIS WEEK’S EDITION

+ Legal Diary of the Week

– CityUK annual report

– Legal Services Board report

– Family law awards from LexisNexis

– Quiz along with the Liberty Choir

+ Legal insight of the Week: Recruiting paralegals

+ Case of the Week: Halliburton – Comment and Webinar

+ Blogs of the Week from Hogan Lovells

LEGAL DIARY of the Week

All’s Well with the Law, says CityUK

Still standing head and shoulders above other legal centres?

A 9.00 a.m webinar yesterday morning to mark the publication of the CityUK’s annual overview of UK legal services brought together a perky Lord Chancellor, a robust incoming Master of the Rolls, an upbeat arbitration chief and an energised representative of the city solicitors to spread a comfortable feeling that however many tough tiers might be in the rest of Britain the legal profession is still doing very nicely thank you very much.

The theme of the CityUK report ‘Legal Excellence: internationally renowned’ was that London has enjoyed a decade of success and despite the doomsters and the question-mark over Brexit the market could continue to flourish – provided that lawyers kept on innovating and focused on staying highly competitive.

Amidst a mass of impressive financial details the stand-out figures were that revenue generated by legal activities in the UK has trended strongly upwards over the past decade, reaching £36.8bn in 2019, a 3.9% increase on 2018, adding to a total growth in revenue of 44% between 2010-2019.

As Miles Celic, Chief Executive Officer, TheCityUK, said, “The sector has continued to steam ahead, consolidating the UK as one of the world’s leading centres for legal advice and expert dispute resolution.” Celic went on to highlight the importance of the UK continuing to build on its early leadership position in LawTech innovation.

This was the major point taken up by Sir Geoffrey Vos, currently Chancellor of the High Court. but taking over as Master of the Rolls in January. Most of the shortcomings in the current system, he seemed to suggest, could be sorted out by digitisation. Small civil claims which often drag on for years would benefit enormously from a move to legal tech. Arguing for an ‘online justice system available to all’ he suggested that the ‘slow justice’ system currently prevalent represented a cost to the economy which would be a drag on national competitiveness.

Catherine Dixon, Director General of the Chartered Institute of Arbitrators, was able to revel in the way that the arbitration process was well suited to operating remotely and was able to mitigate the absence of face-to-face contact. While Jennie Gubbins, the Senior Partner at Trowers & Hamlins explained that after an uncertain start following the arrival of Covid the firm soon adapted to the new ways of – demonstrating, once again, the adaptability and resilience of law done London-style.

Significantly Clifford Chance announced this week that it intends to launch next year a new curriculum to extend lawyers’ understanding of technology and its applications on client matters. At long last it seems that old breach between the two cultures of arts and technology is breaking down. Thank you Digital!

On the other hand….State of Legal Services 2020

Mind you, let’s not get carried away by how marvellous it all is. The Legal Services Board also had a ‘ten year’ report out this week – State of Legal Services 2020 – which looks at matters from a rather different angle – and, indeed, picks up on some of the points made by Sir Geoffrey Vos. As it comments

  • 3.6 million adults in England and Wales have an unmet legal need involving a dispute every year
  • More than 1 in 3 adults (36%) have low confidence that they could achieve a fair and positive outcome when faced with a legal problem
  • Nearly nine in ten people say that “law is a game in which the skilful and resourceful are more likely to get what they want”

It also highlights that

+ Many people and businesses lack the capability and confidence to recognise legal problems and get help.

+ Comparison websites and customer review sites are not well established.

Strategically the LSB says that the public is looking for

Better services – giving consumers the information and tools they need to drive stronger competition, creating the right conditions for providers – including those yet to enter the market – to redesign legal services that respond to their needs. It also entails regulators fostering responsible innovation that commands the trust of both the public and legal professionals.’

Again it looks like lawtech would be the only way forward to achieve any of this. “There is an opportunity for the sector to reinvent itself and embrace a culture that puts the needs of consumers at its heart,” claims Dr Helen Phillips, Chair of the Legal Services Board,  “If we are successful, we will reduce unmet need and provide a much more equal experience for consumers.  Shopping around will be the norm, and people will find it easier to find and compare providers and reward firms offering high quality and affordable services. Consumers will consistently trust the advice they get, knowing an independent and effective regulatory system is providing the essential protection they need. That system will be equipped to respond to the changing market, provide better value for money and support innovation.  If consumers receive poor service, whatever type of provider they use, they will be able to complain to an independent body and obtain quick and fair redress.”

Well, one can just hope.

NOTE: The LSB report is available in two volumes, a narrative section and an extensive evidence compendium.

Just click to connect.

POST SCRIPT The LSB report also underlines the importance of greater diversity within the profession to which the Chartered Institute of Legal Executives comments.
“We’re realistic, we can’t change the profession single-handedly. All legal professional bodies must act as one, and supported by government, should convene and implement a joint campaign committing to clear diversity targets for the legal services sector impacting themselves, law firms, commercial/public and third sector employers. This needs to be focused specifically on the retention and development of lawyers from under-represented groups. Unless all corners of the profession come together, we will fail to deliver a more diverse and inclusive profession.”

It’s Family-favourites at LexisNexis awards

Frances Hughes, name partner at Hughes Fowler Carruthers

Congratulations to Hughes Fowler Carruthers for winning the NexisLexis award of ‘Family Law Firm of the Year: London’ at a virtual event earlier this week.

Andy Sparkes, Director of Legal Markets at LexisNexis, said of the awards, “The pressures of the last year have been extreme.  For many people across the country, social isolation, bubbling and quarantine hasn’t just been an inconvenience.  It has been a stressful, unsafe and life changing experience. Looking after the vulnerable, protecting children and bringing legal justice to those in need is one of the unspoken chapters of this pandemic.  When we celebrate the success of family law practitioners this year, more than ever before, we are thinking of the human stories.”  

Among other firms who featured in various categories were Irwin Mitchell (Family Law Partner of the Year, Ros Bever), Family Law in Partnership – FLiP (Resolution Team of the Year) Shakespeare Martineau (Family Law Firm of the Year: Midlands and Wales), Jones Myers (Family Law Firm of the Year: North) and Corbett Le Quesne (Family Law Firm of the Year: South).

Among the family law barristers Coram Chambers did particularly well.

The full list of finalists and winners and more information on the annual event can be found on the Family Law Awards website familylawawards.co.uk. A video of the event can be found here: https://vimeo.com/483694562

Sing along to Liberty

THE LIBERTY CHOIR Photo courtesy of Mark Harrison

 Are you free on Monday evening at 8.00 pm (30th November)?

Well a lot of people are NOT free – they are stuck in jail but you can help them by participating in ‘The Big Give’ quiz virtual fund-raiser for the Liberty Choir for just a £5.50 registration.

Singing in a choir (along with baking for Britain) seems to be the national obsession at the moment and the former (if not the latter) also appears to be having a big impact on the prison community.

The development of Liberty Choirs within the prison estate, bringing together inmates and outside volunteers, is proving immensely beneficial to both groups. Uniquely ex-prisoners are also involved thereby creating a social spectrum which acts as a bridge between being inside and outside. As the charity explains, “It provides a joyful social benefit to prisoners and ex-inmates and in doing so aids in the rehabilitation of people who are often very vulnerable. Not only that, the Liberty Choir is also beneficial to the non-inmates who take part: by providing a social experience to those who would otherwise never see the inside of a prison, it breaks down social barriers in both directions and benefits the whole of society.”

The goal now is to have a Liberty Choir in every prison in the UK, with a network of community choirs which prison graduates could join to support them in their journey towards rehabilitation. “Liberty Choir sows the seeds of recovery within prisons – and helps to stave off despair that is leading to record figures of self-harm and suicide – and nurtures hope which can flourish when the graduates re-enter society,” says the charity. “It’s a fun, purposeful activity which changes lives.”

To find out more go to libertychoir.org

and for the quiz go to

https://us02web.zoom.us/webinar/register/WN_amkciGm-T1KzJiRYFDvHNg

LEGAL MANAGEMENT INSIGHT OF THE WEEK – PARALEGAL PROMISE

Amanda Hamilton

With recruitment of trainees uncertain and the growing use by firms of legaltech the role of paralegals is becoming increasingly significant. But how should firms recruit them? Here are some top tips on interviewing candidates by Amanda Hamilton, CEO of National Association of Licensed Paralegals

Most solicitors presume that paralegals are law graduates who want to be solicitors. Well, that is just not so! There are many qualified and experienced paralegals who have no degree but have been trained and/or gained qualifications through different routes.

Tip 1: spread your net wider than just law graduates

The presumption that a Law Degree gives an applicant the monopoly on competency, compared with someone who has no law degree but does have a paralegal-specific qualification and/or five years’ relevant legal experience on the job, is simply wrong.

Tip 2: the attitude and look of an applicant cannot be ignored

Remember that old adage about first impressions – well, they’re usually correct!

As an employer, I’ve interviewed many applicants for various roles. My assessment of the individual starts from the moment they walk through the door. I’m assessing their demeanour, the way they dress and whether or not they make eye contact. This tells me a lot about the individual. Dress code these days appears to have gone out of the window but for most, it shows respect if an individual has made an effort. Eye contact is so very important – there is nothing more uncomfortable than sitting opposite an applicant who is looking everywhere else but you.

Tip 3: has the applicant done their research and do they ask questions?

What’s the point of an applicant sitting before you, and several of your colleagues, who has nothing to say? There is no excuse for not researching a potential employer and asking a few pertinent questions – although preferably not ‘how much will you pay me dear?’ which one applicant asked me as her sole contribution when asked if she had any questions! To this my answer was: ‘don’t call us, we’ll call you!’

ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. 

See: http://www.nationalparalegals.co.uk

STAND-OUT CASE OF THE WEEK: HALLIBURTON

Landmark name, landmark case

HOT NEWS – THE DECISION OF THE SUPREME COURT

Following the Supreme Court’s decision this morning on the Halliburton case there has already been much comment and discussion about this controversial case which will continue into the days ahead.

See below two of the quickest comments off the block plus notice of a webinar on Monday from 39Essex.

Leigh Crestohl, partner and head of the international arbitration practice at Zaiwalla & Co. says:

“The Supreme Court today dismissed Halliburton’s appeal of its application to remove a court-appointed chair of an arbitration tribunal in a dispute between it and Chubb relating to a liability insurance policy. It has been almost four years since Halliburton made its application to the English Court, and over one year since the Supreme Court heard arguments in the appeal.

“The independence and impartiality of the ultimate decision-makers is a vital component of natural justice, and private arbitration cases are no different in that sense from cases tried by judges in the Courts. The Judgment from the UK’s highest appellate Court has been eagerly awaited by the international arbitration community. By its nature, arbitration tends to create greater potential for challenges to the impartiality of arbitrators, and international practice on these questions is neither uniform nor entirely consistent.

“Whilst it remains true that the English Court is reluctant to intervene in arbitration cases, the Supreme Court has sought to provide clarity on the English law position on impartiality in cases of multiple appointments in related arbitrations. It will take some time before the practical effect of this guidance is known, including the impact, if any, on London’s position as a premier venue for the resolution of international disputes, which may assume even greater importance post-Brexit.”

Neil Newing, Counsel at Signature Litigation says:

“For many in the global international arbitration community, the previous decisions in this case were perceived as being made to protect those members of the English Bar who have made a living from accepting the type of repeat appointments at issue in this case, in niche areas such as shipping and insurance.  The Supreme Court’s decision is, unfortunately, unlikely to change that perception.  

While the Supreme Court has importantly confirmed the arbitrator’s duty of disclosure, nonetheless in dismissing the appeal and thereby permitting the continue practice of multiple/repeat appointments, it has departed from the position that one would encounter before leading arbitral institutions (such as the International Chamber of Commerce, and the London Court of International Arbitration) and which international users of arbitration may expect to find in a modern arbitration jurisdiction.  While this may be a relief to some members of the English Bar, it may adversely affect the confidence of the global community in England and Wales as a seat for arbitration. 

With the use of arbitration on the rise, particularly in the light of challenges that may be faced in enforcing court judgments abroad following Brexit, it is disappointing that the Supreme Court has not taken this opportunity to bring the English courts into line with international best practice and cement England and Wales’ position as one of the foremost jurisdictions for arbitration.”

 WEBINAR OF THE WEEK HALLIBURTON

HALLIBURTON – THE DECISION OF THE SUPREME COURT

THE IMPLICATIONS FOR INTERNATIONAL ARBITRATION

A webinar from 39 Essex Chambers

featuring  Edwin Glasgow CBE QCPaul Darling OBE QCDavid Brynmor Thomas QCDavid Bateson *Karishma VoraRuth KeatingVivek Kapoor 

30th November 2020

After today’s Halliburton judgment, join members of the Commercial, Construction & International Arbitration Group based in London and Singapore to discuss, from UK and international perspectives:

Does the maxim “Trust me I’m an Arbitrator” still hold good?”

The speakers welcome any questions in advance which you can send to marketing@39essex.com. There will also be an opportunity to ask questions using Zoom’s Q&A.

Date and Time

Monday 30th November @ 9.30am (UK)

Click HERE to register.

There is no cost for the webinar.

PLEASE NOTE: These webinars are hosted by Zoom.

BLOGS OF THE WEEK – BREXIT from Hogan Lovells

Just in case you had forgotten – amid shedding tears over Covid – we also have Brexit to look forward to. Here’s a selection of Blogs from Hogan Lovells to keep you up to speed.

Beyond Brexit transition – a new UK national security investment screening regime

Beyond Brexit transition – the impact on state aid

Beyond Brexit transition – the CMA’s role post-Brexit

Beyond Brexit transition – the impact on corporate law and corporate transactions

Beyond Brexit transition – the impact on procurement

Beyond Brexit transition – the impact on IP

Beyond Brexit transition – continued uncertainty for construction projects

Beyond Brexit transition – possible VAT benefit for securitisations

Beyond Brexit transition – VAT on cross-border movement of goods

Beyond Brexit transition – Brexit uncertainty creates an opportunity for European investment by Japanese companies

Beyond Brexit transition – interpretation of retained EU law

Beyond Brexit transition – bilateral investment treaties

Beyond Brexit transition – litigation and the enforcement of judgments

Beyond Brexit transition – the impact on freedom of movement

All being well we’ll be back next week – if only we had crossed the water to the Isle of Wight! –

so please continue sending your news, views, insights and images to

fennell.edward@yahoo.com

And do forward on to friends and colleagues.

Edward Fennell’s LEGAL DIARY

Friday November 20 2020 Edition 35

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK

GRENFELL, A MORAL AND LEGAL FAILURE?

On Desert Island Discs this morning Sir Kier Starmer highlighted that the Grenfell tragedy demonstrated what politics was was all about. Meanwhile the current Grenfell inquiry might do the same for law. Certainly the revelation in the past few days that Celotex, the manufacturer of the fatal cladding materials, had cheated to ensure its product met the regulatory requirements on flammability almost beggars belief. Jonathan Roper, the former assistant product manager, has admitted complying with acts which were “completely unethical” and a “fraud on the market” – but the responsibility goes much wider than this young man.

Celotex clearly had, corporately, a profoundly irresponsible approach to its legal and regulatory obligations. This is now being exposed by the forensic examination undertaken by inquiry barrister Richard Millett QC. No doubt at the end of it all there will be calls for better regulation. But the moral failure by those involved goes beyond regulation. Solving that might be the even bigger challenge.

The LegalDiarist

In this week’s edition

+Legal Diary of the Week

Beirut Explosion Inquiry needed

– Green light for money laundering?

– Social Mobility Employer Index

– Need to slow down the traffic

+ Appointment of the Week – Colin Costello at Freshfields

+ Legal Analysis of the Week – The ICO Ticketmaster case

+ Court Case of the Year – BCA vs. BoE

+ Webinar of the Week – Ethnicity Matters from Wedlake Bell

+ Art Law of the Week – Restrictive Covenants

LEGAL DIARY OF THE WEEK

Beirut explosion victims demand justice

This is what corruption looks like

The demand that there should be an independent and impartial fact finding mission into the catastrophic explosion of ammonium nitrate in August in Beirut is now gaining traction.

As a starting point international legal charity Legal Action Worldwide (LAW) has compiled a report on what happened on the day of the accident and the events leading up to it. This is a prelude to what should be an international investigation to establish the facts of the explosion as well as the root causes which include a vacuum of rule of law and lack of effective governance resulting in gross human rights violations which can (and often do) amount to serious crimes against vast numbers of Lebanese civilians’.

Among a number of demands LAW is asking ‘That victims are ensured representation and participation in any proceedings arising from

investigations, including civil or criminal proceedings before a competent court or tribunal, or any public inquiry.’

To see the full report go to: http://www.legalactionworldwide.org/wp-content/uploads/2020/11/REPORT.pdf

Carry on money laundering?

Some time ago the Financial Conduct Authority signalled its resolve to use criminal powers to deal with the most egregious breaches of money laundering regulations. Nonetheless the latest figuresfrom the FCA reveal that half of its investigations into breaches of money laundering regulations have been discontinued since the beginning of 2020.

As Eversheds Sutherland points out, current money laundering legislation provides for both civil and criminal enforcement. “This means the relevant regulator may open a criminal or a civil investigation into Anti-ML systems and controls issues, and that any finding or admission may be dealt with using criminal or civil sanctions.”

However, the FCA’s figures reveal:

  • Only one single track criminal investigation into breaches of the MLR is now ongoing.
  • It is currently investigating six dual track investigations into breaches of the MLR
  • Five single and two dual track investigations into breaches of MLR have been discontinued since January 2020

“Whatever the current figure for open investigations into financial crime matters, the FCA’s response makes plain that the vast majority of its investigations into potential breaches must be solely civil in nature,” says the firm. Who said London wasn’t the money laundering capital of the world?

Clifford Chance absent from this years Social Mobility Employer Index

Has Clifford Chance dropped the ball over social mobility?

The publication of this year’s Social Mobility Employer Index highlights the contribution that the legal industry is now making to ‘levelling up’ with 30% of the Top 75 recognised organisations coming from the legal sector. With the exception of Whitehall Departments, the Inner Temple and Radcliffe Chambers, however, they are all firms of solicitors. There may, of course, be perfectly good reasons why barristers’ chambers find it difficult to participate in this kind of exercise but it does not help their cause collectively in trying to change their image of social elitism.

From the solicitors’ side Clifford Chance is the only member of the Magic Circle not to appear in the list. Meanwhile the other top firms have some impressive claims to their credit. For example, as recently announced, Freshfields aims to factor in racial diversity when building disputes teams. It also has other impressive initiatives such as the Freshfields Stephen Lawrence Scholarship Scheme which is designed to address the disproportionate under-representation in large commercial law firms and other City institutions of black men from less socially mobile backgrounds.

Meanwhile Slaughter and May’s Law Springboard project, delivered in partnership with charity upReach, is designed to improve access to the legal sector for high potential undergraduates from less advantaged backgrounds across all UK universities. It has already led to the firm hiring future trainees from the first cohort. And ‘Lead in to Law’, which is delivered with equal opportunities agency Rare, provides twenty 16 to 18 year olds from less advantaged backgrounds with work experience, insight opportunities, mentoring and university visits. The next step, of course, is actually to get the disadvantaged on to the career ladder.

Here’s the full list.

For a clearer view and the full report go to


 http://www.socialmobility.org.uk/index/


Clarke Willmott says Slow Down

Speaks for itself

Road Safety Week 2020 has unveiled some shocking statistics leading to lawyers calling for tighter road safety measures. And while the press has featured some appalling motor accidents in recent weeks – leaving parents and children alike devastated – these sensational cases are merely the tip of the iceberg. Excessive speed is now held responsible, in whole or in part, for 11 deaths or serious injuries on UK roads every day That is why Clarke Willmott LLP is now backing the “No Need to Speed” campaign organised by the road safety charity BRAKE.

Philip Edwards, a partner and serious injury expert at Clarke Willmott said, “BRAKE has commissioned research that has produced some shocking results, which should provide food for thought for all road users.”

 The research revealed that, amongst male drivers, 28% have admitted to driving in excess of 100mph. There have been incidences where the Met Police caught a driver doing 152mph in a 30mph zone, and the highest speed recorded was a motorist apprehended by Nottinghamshire police doing 180mph.

Edwards added, “The examples BRAKE has highlighted represent reckless behaviour and it is only a matter of time before someone who drives like that will take a life or cause someone serious injury. Speeding, or more particularly driving too fast for the conditions, of any type, increases the risk of people suffering needless heartbreak.”

 Research by RoSPA shows that speed dramatically increases the consequences of the collisions; of pedestrians who have been killed when hit by a car, 85% died in a collision that occurred at impact speed of less than 40mph, 45% at speed below 30mph and only 5% at speeds below 20mph.Joshua Harris,  the Director of Campaigns for BRAKE added, “The voices of the bereaved and injured help us all to understand that getting somewhere a few minutes earlier is never worth the risk.”

APPOINTMENT OF THE WEEK

COLIN COSTELLO AT FRESHFIELDS

As the world waits for all-change in Washington various ‘end-of-era’ job changes are underway. One which is attracting particular interest is the recruitment by Freshfields Bruckhaus Deringer US LLP of Colin Costello as ‘Committee on Foreign Investment in the United States’ (CFIUS) client advisor.

Costello joins Freshfields from the Office of the Director of National Intelligence (ODNI), where he served as the Acting Director of the National Intelligence Council’s Investment Security Group. In this role, he was the Intelligence Community’s primary representative to CFIUS and managed critical intelligence input into every CFIUS review since March 2013.

While at ODNI, says Freshfieds, Mr. Costello developed the threat analysis methodology used by the Intelligence Community (IC) to analyze CFIUS transactions and other foreign investment-related regulatory filings. He also coordinated the analysis of over a dozen IC agencies to develop the threat assessment that forms the core of every CFIUS review and played an active role in informing deliberations over, and implementation of, the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) and corresponding regulations.

“Colin is a stellar addition to our national security team, having played a highly consequential role in the CFIUS process for the better part of a decade,” said Freshfields partner Aimen Mir who also has a background at ODNI. “At a time when government scrutiny of investment flows is at a historical high, our clients will benefit tremendously from the real-world, direct insight that Colin brings from having shaped the outcome of hundreds of CFIUS cases.”

He also brings, of course, the experience of serving in a Trump-led government – in itself a unique experience one imagines and rather different, one hopes, from life at Freshfields.

LEGAL ANALYSIS OF THE WEEK

SORTING OUT THE ICO TICKETMASTER FINE

The penalties were inevitable in this ‘salutary tale’ says James Castro-Edwards, Head of ProDPO, an outsourced Data Protection service of law firm Wedlake Bell.

On 13th November, the Information Commissioner’s Office (ICO) fined Ticketmaster UK Limited £1.25 million for failing to keep the personal data of up to 9.4 million of its EEA customers (1.5m in the UK) secure, in breach of the General Data Protection Regulation (GDPR). As a result of the ensuing fraud, Barclays Bank reported that around 60,000 individual card details had been compromised, Monzo Bank reported that 6,000 cards had to be replaced and Ticketmaster received approximately 997 complaints alleging financial loss and/or emotional distress.  

This was caused by a chat-bot on the Ticketmaster website, that was designed to deal with web visitors’ questions. The chat-bot was hosted by a third party, Inbenta Technologies, Inc., and installed on a number of Ticketmaster’s web pages, including its payment page. An attacker was able to insert malicious code to Inbenta’s servers, which enabled them to collect customers’ payment details. The stolen information included name, payment card number, expiry dates and CVV numbers; all the details that were necessary to make a fraudulent transaction.

The ICO found that Ticketmaster had failed to implement security measures that were appropriate to the level of risk. It did not accept Ticketmaster’s claim that the attack was of a novel type; the risk of injecting malicious code to a chat-bot was well established within the cyber and payment card security industry and widely published. Ticketmaster ought reasonably to have been aware of the risk at the time it implemented the third-party chat bot.

The potentially enormous rewards for a criminal that obtains payment card details meant that the likelihood and severity of an attack on Ticketmaster’s payment page were both high. Further, Ticketmaster could have employed a range of technical measures that were available, in order to mitigate or remove the risk. Ticketmaster reportedly intends to appeal the ICO fine. However, it is difficult to avoid the conclusion that this was a widely-known type of attack and would have been relatively simple to prevent. e-Commerce businesses should consider this a salutary tale.  

COURT CASE OF THE YEAR – BCV v BoE

Hoping for gold on the streets of London

 In what is rapidly becoming a ‘box set’ of court appearances the existential issue of who is the rightful President of Venezuela was back in the news this week. Focused on the Bank of England’s holding of substantial gold reserves on behalf of the Banco Central de Venezuela (“BCV”) the question to be resolved, before the money can be handed over, is whether ithe legitimate President is, in the red corner, Nicolas Maduro or, in the blue corner, Juan Guaidó.

So far, you might say, the Maduro/BCV camp advised by Zaiwalla & Co. is winning on points having succeeded in October in its Appeal of an earlier Judgment of the High Court. As a result, the Guaidó Board was required to pay BCV’s legal costs. However no money was forthcoming from the Guaidó side by the due date on the grounds that the sanctions in place against Venezuela by the United States prevented them.

In response Mr Vineall QC on behalf of BCV highlighted this week that it is the laws of the United Kingdom that the Guaidó Board must comply with, rather than US law. Strong point! Indeed, Mrs Justice Cockerill stated that the Guaidó Board would need to return with “better excuses” than what they have presented so far for their failure to comply. Moreover if they fail to pay the costs order without better reasons the Guaidó Board will be in “all sorts of trouble.”

The case, as they say, continues.

WEBINAR PROMOTION

WEBINAR BRIEFING FOR NEXT WEEK from WEDLAKE BELL

ROUNDTABLE AND LIVE Q&A: IN THE RACE FOR BUSINESS SUCCESS – ETHNICITY MATTERS

Webinar and Live Q&A: In the race for business success – ethnicity matters

Wedlake Bell has partnered with pay gap specialist Spktral for a live webinar (12 – 1pm, 26 November) giving practical advice on how businesses can promote diversity, including key considerations to bear in mind when preparing for ethnicity pay gap analysis.

Promoting diversity & inclusion (D&I) in your workplaces doesn’t just make financial sense. The Black Lives Matter movement has highlighted how important it is for CEOs and the Boards of corporates and employer brands to ensure that the issue of ethnic D&I is now at the top of their agendas –and a good starting point is ethnicity pay gap analysis.

During the webinar the following topics will be discussed:

  • Behaviours to tackle and steps to take to protect your business and become a leader in diversity;
  • The difference between positive discrimination and positive action;
  • How to prepare for ethnicity analysis, including data gathering and categorisation (use of “BAME”);
  • Risk areas – pre-empting and addressing these;
  • Likely impact of BLM on the workplace.

Who should attend this workshop?

As well as HR, finance and senior management involved in the ethnicity analysis process and employee relations issues, this is an essential session for board members and business leaders who take ultimate responsibility for workplace culture and the associated risks.

To register your interest, please email events@wedlakebell.com

 ART LAW OF THE WEEK

RESTRICTIVE COVENANTS: WANT TO MAKE YOU SCREAM?

Reading anything about the business aspects of the art world would quickly disillusion almost anyone about the morality of galleries and art agents. Hence the legal topic which particularly seems to be gripping people at the moment is the use of restrictive covenants in the primary art market.

As an article in the current edition of artnet News points out

‘Artworks are [being] sold to buyers with a legal clause, sometimes buried in the terms printed on the back of the invoice, which restricts the ability of the buyer to re-sell the work by auction or sometimes imposes a complete ban on any form of resale for a fixed period. Some include an obligation on the buyer to re-offer the artwork back to the original seller before reselling it. While there are many variants, the covenant will typically say something along the following lines: “For a period of 5 years from the date of the purchase the Buyer agrees not to offer the Artwork for sale at auction”

However as the article goes on to say, “The enforceability of these clauses has not yet been tested by the UK Courts. Once they are tested we will know for sure whether or not they are enforceable – and in what circumstances.”

Roland Foord, a disputes specialist at Stephenson Harwood, is quoted as saying that he does not think that such contractual terms would be enforceable. However, that might not be the point. According to the article one of the reasons that the UK courts have yet to test these arguments is that galleries employ the more effective deterrent of blacklisting clients who ignore these covenants. “It’s effectively the market’s own regulatory mechanism,” Foord says. Cue ‘The Scream’. You can sell but you’ll never buy art in this town again.

We look forward to being back next week so do send your stories, comments and legal analysis to

fennell.edward@yahoo.com

and keep well. Remember it is only 57 weeks to Xmas 2021!! Whooppee.

Edward Fennell’s LEGAL DIARY

Friday November 13 2020 Edition 34

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK

– DIVIDED WE STAND?

Not just a flag of convenience

News that The Law Society of Ireland has decided that England-and-Wales-qualified solicitors will no longer be able to obtain Irish practising certificates unless they work in the country has thrown a massive spanner in the works of London law firms who thought that they had a Dublin backdoor into the EU.

But there is an echo here of the complacent view of Brexiteers that the Northern Ireland border was not going to be a major barrier to a smooth withdrawal process. Almost one hundred years after Eire departed the UK the hard fact is coming home that, hey, these are two different jurisdictions and Ireland cannot be taken for granted.

How this plays out remains to be seen but – as in Scotland also – Brexit is crystallising the message that the word ‘united’ is an almost bust stock in these islands.

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

Bingham Boffs the Bill

Memery Crystal Mentor

Break through to the Law Industry at DWF

Food Glorious Food?

+ ON-GOING SAGA OF THE WEEK – DIGGING INTO DEPP

+ LEGAL INSIGHT OF THE WEEK – WRITING AT WILL

+ LEGAL COMMENT OF THE WEEK – POST-CONNERY

+ BLOGS FROM FORSTERS

THE LEGAL DIARY OF THE WEEK

Bingham Boffs the Bill

It may seem as if we are retreading old ground but the proposed violation of international law embodied by the current Internal Market Bill is so significant that it cannot be allowed to drift out of awareness – especially now given the chance of a re-set in Downing Street.

As the Bingham Centre for the Rule of Law points out in its new publication United Kingdom Internal Market Bill, House of Lords Committee Stage: A Rule of Law Analysis of Clauses 44-47 “The Government is asking Parliament to legislate incompatibly with the Rule of Law in two respects.

“First, the clauses involve a deliberate breach of the UK’s international obligations. By removing the entrenched legal protection that the UK promised to provide for certain rights in the Withdrawal Agreement, and adopting measures which could jeopardise the achievement of the objectives of that Agreement, the Bill is also itself in immediate breach of clear obligations which the UK voluntarily and very recently assumed in Articles 4 and 5 of the Withdrawal Agreement. A breach of the rule of international law is still a breach of the Rule of Law.

“Second, the clauses seek to immunise those ministerial regulations from any meaningful legal challenge, placing them beyond effective review by the independent courts. Preventing access to courts to challenge the legality of ministerial actions is also a fundamental departure from the Rule of Law.”

As Lord Judge said in the bill’s 2nd Reading in the House of Lords.The rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law—that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make—knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted”.

Thanks for the Memery Crystal Mentor

 Lesley Gregory, (pictured above) chair of law firm Memery Crystal, has been named ‘Mentor of the Year’ at the Women in Law Awards 2020, in recognition of her work in elevating women working both in the legal profession and in mentoring female founders and entrepreneurs. This follows recent success as ‘Legal Adviser of the Year’ at the Women in Finance Awards and being highly commended by the Law Society’s Excellence Awards. She is also the founder of a successful female entrepreneurs’ network, the ‘Women in Business Network’.

“Mentoring is the cornerstone to success,” she says, “and it is vital that women support other women both personally and professionally, regardless of seniority in a company. I’ve worked in law for over 30 years and have mentored many female solicitors and other members of staff at all stages of their careers, sharing the insight of my experience and encouraging them to excel.”

But then, one asks, who mentors the mentors?

Break through to the Law Industry

It remains to be seen how this generation of lockeddown students will respond to the image of life in the City as presented by the new TV series INDUSTRY. However DWF is doing its bit to inject some insights into reality through its new work placement scheme for Black, Asian and Minority Ethnic individuals who aspire to pursue a career in law. 

The firm’s Ethnic Minority Access Scheme, has been developed with the organisation Aspiring Solicitors to “help six individuals from Black, Asian and Minority Ethnic backgrounds gain valuable paid work experience at a global legal business, over a period of one week.”

 During the placement, candidates will undertake live legal work and will be paired with a supervisor and a mentor in DWF’s commercial practice in either London or Manchester. The first group will begin the programme in April 2021 and DWF will run the programme yearly.

 Seema Bains, Partner & Head of Diversity & Inclusion Leadership Group at DWF said, ” Unfortunately our industry still does not reflect the society we live in, and that really needs to change. This targeted programme will hopefully give candidates the opportunity they need to gain exposure to commercial law in practice and help progress their legal careers.  .”

 Chris White, CEO and Founder of Aspiring Solicitors, said, “This scheme demonstrates a tangible commitment and focus for improving access and opportunities for under-represented groups in the profession. Both Aspiring Solicitors and DWF look forward to the positive results that flow from this scheme.”

Maybe they should make a TV programme out of it.

Food Labelling post-Brexit – Not so tasty

Only Ten? Full of new EU nutrients

BoJo and Govey might have thought that the pandemic would give the Government cover for the lack of preparation for January’s Brexit – after all, who’ll notice seven miles of tailbacks to the port when there’s a ten mile tailback of ambulances to the hospital? – but, willy-nilly, food and beverage exporters are at the sharp end of the need for change.

For example, as law firm Clarke Willmott LLP has just pointed out, producers of organic food products face export restrictions and other labelling requirements until such time as the EU approves the UK’s organic food regulatory regime. If the UK does not achieve recognition equivalency from the EU, then exporters of organic food will not be able to export organic food or feed to the EU from 1 January 2021.

Moreover as Amy Peacey, a senior associate at Clarke Willmott observes, new labelling rules will apply to other food exported from Great Britain from 1 January 2021. “From this date, exporters will need to have in place new packaging compliant with EU regulations in order to sell their goods legally to customers in the EU.”

This means that from 1 January 2021 food exported to the EU must follow these requirements:

+ Food and drink products may not use any EU emblems or markings on their labels;

+ UK food must not be labelled as origin EU from 1 January 2021; and

+ The address of an EU importer or food business operator will be required on labels of pre-packaged food.

Reading the label will suddenly take on a whole new meaning.

ON-GOING LEGAL SAGA OF THE WEEK

DIGGING INTO DEPP

Yo, ho, ho for yet another bottle of rum?

Discussion about the Depp libel case is likely to rattle on for some time among the general public and the legal industry alike. Farrer & Co.’s regular newsletter INSIDE REPUTATION has carried an incisive analysis this week from associate OLIVER LOCK about the pros and cons of going to court over libel matters – and in particular Depp’s decision to do so. It is too long to reproduce here in full but the points below struck LegalDiarist as particular worthwhile,

BENEFITS of going to court

 England’s claimant-friendly libel laws has given London the moniker of the “libel capital of the world” where high-profile individuals are regarded to have a better chance of successfully challenging defamatory allegations. Much of this is down to the burden of proof: in England – a defamatory allegation is presumed to be false unless proved otherwise. However, as we have here, where a flawed and unreliable Claimant sits at the centre of a libel claim, then England’s libel laws may not save the day. A great level of detail about Depp’s private life was made public as a result of the trial, but in fact only one thing ultimately mattered: NGN was able to prove that it was more probable than not that Depp was a wife beater.

RISKS of going to court

This trial focused on serious allegations of aggressive violence. NGN and Wootton only had to prove that it was more probable than not those allegations were true, whereas a criminal court would need to be satisfied beyond reasonable doubtthat they happened. Remember that evidence which might not be considered sufficient in a criminal case could nevertheless get you “convicted” in the eyes of the media and public. Rather than bring a high-profile libel claim, it might be more effective to respond to the allegations by pointing out the absence of criminal charges or a conviction.

Succeeding in litigation can be, when boiled down, a flip of the coin. Regardless of the belief in the strength of your claim or the perceived weaknesses in the other party’s position, the fact that a dispute reaches court often means that there is a grey area. Ultimately, Nicol J’s judgment predominantly hinged on how credible he found Depp as a witness. Regardless of the honesty with which Depp may have given evidence, his credibility will undoubtedly have been blemished in the eyes of the Court as a result of the clear extent of his alcohol and substance abuse, not to mention the extraordinary text he sent claiming his former wife was about to get her comeuppance. Nicol J criticised a central theme of Depp’s case that ‘Ms Heard had constructed a hoax and that she had [made the allegations] as an ‘insurance policy’ … in the event that the marriage broke down’. He noted that the fact that Ms Heard donated the $7 million divorce settlement to charity is “hardly the act one would expect of a gold-digger.”

For more on this contact Oliver Lock, or phone the firm on +44 (0)20 3375 7000.

LegalDiarist comment: Oscar Wilde is the poster boy for the disastrous consequence of suing for defamation when one is on shaky territory. How lessons from that case have not been learned by subsequent generations of celebrities remains baffling.

LEGAL INSIGHT OF THE WEEK – WILL THERE BE WRIGGLE ROOM IN THE WILL?

Will they? Won’t they?

As today’s report in The Times illustrates – focussed on the row in the Lucas family of Newbury over exclusion of a daughter from inheritance – wills are a ready breeding ground for legal disputes. What might initially seem to be a simple affair can rapidly reveal its complexities – especially if, God forbid, a child were to die before the parent. Here , in a timely contribution, Julia Richards of Hunters Law addresses the minefield that is Section 33 of the Wills Act

Wills often provide for a gift “to such of my children as shall survive me in equal shares”, but what happens if a child predeceases the testator leaving issue? Do they inherit their parent’s share or do the testator’s surviving children scoop the pool? It depends on whether section 33 of the Wills Act 1837 applies.

S.33 applies where the testator leaves a gift to a child (or remoter descendant). If that child predeceases the testator, their own children take per stirpes, (i.e a stipulation that, should a beneficiary predecease the testator, the beneficiary’s share of the inheritance will go to his or her heirs) “unless a contrary intention appears by the will”. The clearest form of contrary intention is a clause expressly excluding s.33 but what happens where a will does not contain such provision?

The question has arisen in several cases over the years with conflicting decisions. The issue arose most recently in the case of Re estate of Ellen Beatrice Brackstone [2020] Lexis Citation 318. Mrs Brackstone died leaving a will, which provided that her estate should pass to:

“…such of my children as shall survive me in equal shares namely [Sandra] and [David]”

Sandra predeceased her mother, leaving a daughter, Holly, who claimed that she was entitled to her mother’s share of the estate. However, David contended that the Will excluded s.33 and that he inherited everything.

Having reviewed the case law and carefully considered the construction of the will, the judge declared that the above wording was not sufficient to exclude s.33 and, accordingly, Holly was entitled to a half share in the estate.

The case is a good reminder of the importance of clear drafting and the unwelcome consequences of ambiguity. To ensure that the testator’s intentions are clear on the face of the will, many practitioners choose to exclude s.33 and include an express default gift, leaving no room for doubt.

Julia Richardshas tax and trusts expertise and a particular interest in estate planning, landed estates and heritage property. She also has extensive experience advising on wills, powers of attorney, probate and the administration of estates. 

Hunters Law LLP is a leading multidisciplinary law firm founded in 1715 and has been based in Lincoln’s Inn since 1745. Hunters is included in The Lawyer’s top 200 UK law firms for 2019.

LEGAL COMMENT OF THE WEEK

– OH, OH, IS IT A CON?

Sean Connery’s extraordinary career from teenage milkman to Oscar winner was full of drama and it continues after his death with allegations of tax fruad against his wife by the Spanish authorities.Barrister Leon Fernando Del Canto suggest here that this may be another example of Spanish practices.

The Goldfinger case, involving the Connerys is a spin-off of the largest and most mediatic Spanish anti-corruption campaign in history: the Malaya Case. This case, in which over €2.4 billion has been seized and over 50 people incriminated, was effectively a politically-led ‘trophy prosecution’ aimed at exposing numerous corruptions including bribery, embezzlement, tax fraud and influence peddling carried out by members of the Marbella City Council, business people, and prominent local lawyers. However, from my point of view the Connerys were caught in a crossfire and there is very little substance to go after regarding Mrs Roquebrune, Sean Connery’s wife.

Operation Goldfinger was aimed to discover alleged urban planning irregularities arising out of the sale of 73 luxury flats in Marbella on land where the local authority gave planning permission for only five family homes. The properties were built illegally on the site where the former Connery’s property (Malibu) was located, yielding a €53m (£37m) profit after sales.

While the perpetrators of the fraudulent development were identified and judged, Mrs Roquebrune was subsequently accused of tax fraud as part of a tax evasion scheme of around £5.5m. Not having been privy to the case, and according to media reports, the prosecutor stated that she cooperated with her lawyers and other local and international business people to devise a complex corporate operation made of “fictitious legal transactions” aiming to evade corporation tax. The Spanish prosecutor is now claiming £21m over the alleged tax fraud and supposedly the authorities have notified her – but to no avail.

From my perspective, it seems that the prosecutor has gone well over the top. The authors of the original planning fraud, including the Connerys’ lawyers, were judged and are now in jail. They were obviously the ones engineering the fraud and justice has been made.

Trying to connect Mrs Roquebrune, as a final shareholder or beneficiary of the corporate structure, with a direct implication in the case, using the old trick of criminal tax fraud, does not stack up. Better for the prosecutor to have solid evidence, which he doesn’t seem to have, rather than having the media doing the work for him by creating public pressure.

Leon Fernando Del Canto is an international tax barrister practising from Normanton Chambers in London. He is a member of the Honourable Society of Lincoln’s Inn, The Worshipful Company of Tax Advisers, the Association of Taxation Technicians and the Madrid Bar.

LEGAL BLOGS OF THE WEEK courtesy of FORSTERS

Three topical subjects – definitely worth a listen.

+ Six ways to keep your employees engaged and motivated during lockdown by Employment Senior Associate, Joe Beeston (https://www.forsters.co.uk/news/blog/six-ways-keep-your-employees-engaged-and-motivated-during-lockdown)

+ Making redundancies as a result of Covid-19 by Employment Senior Associate, Joe Beeston (https://www.forsters.co.uk/news/blog/making-redundancies-result-of-covid-19)

+ Sustainability in the charitable sector – is social investment the answer? by Charities Counsel, Neasa Coen (https://www.forsters.co.uk/sustainability/sustainability-in-the-charitable-sector-social-investment)

We’ll be back again next week so please continue sending your news, insights and comments to

fennell.edward@yahoo.com

And do pass this on to friends and colleagues

Edward Fennell’s LEGAL DIARY

Friday November 6 2020 Edition 33

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK – A LIST FOR OUR TIMES?

In line with the law?

Yesterday my erstwhile colleagues at The Times LAW published the now annual ‘Best Law Firms 2021’. It was accompanied by the disclaimer that it had been compiled on the basis of law firms’ own evaluations of their rivals and competitors – so don’t blame The Times if you didn’t agree. Mind you, for the uninitiated, it was a curious list with worthy firms such as Wilsons of Salisbury and MSB Solicitors of Liverpool being put, apparently, on a par with the mighty Weil of New York and the legendary Carter Ruck of London in terms of recommendations.

In an important way, however, that was a correct analysis. Getting the right law firm is all about getting the right lawyer with the right expertise in the right place and at the right price. A niche firm on a couple of floors in Chancery Lane – such as Hughes Fowler Carruthers – can be a much better bet than a mega firm in a Bishopsgate for certain types of work.

But what’s useful to the client might nor be right for the legal business strategist weighing up possible merger partners. That’s where a new service like Legal Target https://www.legal-target.com/about a specialist legal search engine, comes into its own by providing comprehensive data about firms with the depth and detail that potential suitors (or recruiters) might demand.

In other words, there are lots of lists and lots of way of grading and assessing lawyers and law firms. We can’t all be best. But we can all probably do a bit better.

The Legaldiarist

In the week’s edition

+The Legal Diary

– The IBA’s ‘Virtually Together’ Conference

Litigation Funders Bond Together

– Major Trauma Group Sets Up

– Adieu Kemp Little

CMS Surveys Digitalisation in CEE

Lawyers still party animals

Still pedalling after all these years

+ Quote of the Week – Don’t Impress Me Much

+ Legal Commentary of the Week – The Depp Case

+ Campaign of the Week – Recruitment Agency Race Fairness Commitment

+ Artwork of the Week – Antony Gormley’s HINGE – Not socially distanced!

THIS WEEK’S LEGAL DIARY

IBA Reaches Out

Ban Ki Moon – More paralegals is the answer

It’s the opening week of the International Bar Association’s annual conference. Of course it’s happening ‘Virtually Together’ this year and so it is enjoying the attendance of an amazing 10, 000 delegates. Star attraction to open the event on Monday was Ban Ki-moon, the Former United Nations Secretary-General (2007-2016) and former South Korean Foreign Minister who had presumably been prepped to express his deep concern for ‘attacks on lawyers around the world, sometimes from the highest levels of government.’ Taking a global view he referenced last year’s ‘Justice for All’ Task Force report which noted that 1.5 billion people had a ‘justice problem’ that they could not resolve. “Funding for access to justice has declined by 40% in the last 4 years and the economic downturn puts even greater pressure on financing,” he said.

So what’s the answer? More affordable lawyers – and that probably applies across every jurisdiction from America to Zimbabwe. “We will not be able to reduce this justice gap without significant action and reform by the legal profession,” he said. “The legal profession needs to adapt, and the disruption caused by the pandemic should be harnessed and deployed as a catalyst to longer-term, progressive reforms. One possibility is to embrace paralegals, who represent a cost-effective way of expanding legal empowerment services, particularly in resource-poor countries without large numbers of lawyers. Sierra Leone and Indonesia are two positive examples of countries that have recognised paralegals which has enabled them to expand access to justice services.”

Citing countries from Africa and the Far East might be initially surprising. But as the experience of the Corona virus has demonstrated, Europe and North America do not have all the answers. It’s time to look further afield

As a service to the legal profession, the IBA is providing 60 sessions outside of the paywall that are free to attend. Details can be found here: www.ibanet.org/VirtuallyTogether-open-sessions.aspx

Litigation Funders Bond Together

Collaboration seems to be very much the name of the game this week. Maybe it is the impact of the pandemic which is giving lawyers the headspace to reflect on the benefits of doing things co-operatively rather than in isolation. Anyhow, earlier this week Brown Rudnick announced the launch of the Litigation Funding Working Group (LFWG), which brings together leading litigation funders, insurers, institutional claimants, legal advisors and other participants across the litigation funding market in the UK and Europe. Their purpose is to develop ‘model documentation’  which will support the continued growth and development of the litigation funding market.

Elena Rey

Elena S. Rey, a partner at Brown Rudnick’s Special Situations team, points out that “This initiative comes at a time of rising demand for litigation funding products in an evolving regulatory environment.”

The model documentation will be freely available and is intended to

The LFWG features a hefty slate of major funders and institutional claimants – in fact, too many to mention but including the likes of Affiniti Finance Limited, BDO Global, Bench Walk Advisors, Grant Thornton UK LLP, King Street, Litigation Capital Management Limited and Therium Capital Management  along with insurers and brokers including AmTrust Financial, Marsh Ltd., QLCC, and others plus legal & expert advisers and barrister chambers. It could be a force for good.

Ending Drama of Trauma

Next up in our theme of collaboration is the creation of the Major Trauma Group. It is reckoned that over 10,000 people die following a major trauma injury every year in England and Wales. Whether from car accidents or other mishaps. injuries are the main cause of death for people under 45 in the UK.

Many patients then leave hospital without legal advice or access to adequate community rehabilitation follow up. A paper published in the Journal of Intensive Care Society highlighted that in 70% of major trauma centres patients fail to receive legal advice.

To remedy this gap the Major Trauma Group was launched this week as a new national service by some of the UK’s leading law firms in this field – Boyes Turner CL Medilaw, Enable Law and Moore Barlow and the Brain Injury Group – in collaboration with medical clinicians. The Group will be a source of information for these individual victims as well as directing them to appropriate legal services.“We are proud to be launching The Major Trauma Group,” said Trevor Sterling, Chair of the Group. “It is the first venture of its kind where lawyers and medical professionals will work together for people affected by major trauma. The Major Trauma Group will ensure that no patient goes without the legal and rehabilitation support they require and that patients’ opinions on issues that affect their care and rehabilitation are heard by decision-makers.”

Adieu Kemp Little

I am sure it is a smart move commercially but it is a little sad, nonetheless, to see Kemp Little being vacuumed up by the legal arm of Deloitte. The firm was a bright, energetic start-up operating from small offices in Piccadilly when I first came across them. They were unstuffy, accessible and embodied the legal industry’s positive answer to the new tech revolution. I hope that their spirit will not be squashed by rubbing shoulders too much with big business accountants with legal ambitions.

[For more on this see

https://www.legal-target.com/projects/share/488ef831-291c-48a7-9758-85ecaf6ec5de ]

CMS Surveys Digitalisation in CEE

A survey by law firm CMS investigating how digitalisation will impact on central and eastern Europe has revealed that almost two-thirds (65%) of companies in the region believe that it is a priority in achieving their goals. The Covid-19 pandemic in particular has underlined the importance of the digital agenda with 45% of respondents saying that it has accelerated ongoing projects.

 Financial services and life sciences are the key sectors identified by respondents in which digitalisation is expected to be most driven by the fallout from the pandemic, followed by the manufacturing, automotive and energy sectors. Only 6% of businesses have delayed their digital projects due to the pandemic.



Dóra Petrányi

 “Despite the continuing impact of Covid-19 globally, it is encouraging that many companies across CEE are either pressing the fast forward button or planning to commit greater resources to go digital,” says Dóra Petrányi, CEE Managing Director at CMS. “We already have high-quality digital infrastructure across many CEE countries with high speed broadband, e-commerce and 4G usage. However, to be on par with other developed nations, we need to become more digitally competitive through new technologies such as 5G networks and artificial intelligence, supported by the necessary regulatory frameworks and standards.”

Artificial intelligence (AI) is seen as the key instrument of change but it does not come without widespread concerns. “A significant proportion (86%) are worried about potential legal liability issues while 60% are either concerned or very concerned about security risks,” says CMS. “At present, only 4% of respondents believe that AI is over-regulated while over half (60%) would like to see more guidance and regulation on AI to be put in place.”

Lawyers love party animals

Try doing this on Zoom – With thanks to New York Times

According to  Appreciate, which operates the Love2shop rewards product, people working in the legal sector are keener than most to have their annual firm Xmas parties this year.

Apparently 34% of employees in the legal sector want their company to hold some sort of office Christmas party this year, compared to a national average of 24%.

Frank Creighton, Director of Business Development at Appreciate Group, said: “Clearly Covid-19 has changed our attitudes to Christmas parties this year but in the legal sector the desire to get together and celebrate is still strong. We imagine there will be a lot of virtual, Covid-safe Zoom Christmas parties come December, with people letting their hair down in different ways.”

One dreads to imagine how.

Still pedalling after all these years

You have to be a winner to be a lawyer

The legal profession’s annual bike charity Tour de Law – in support of Breast Cancer Now – has just finished counting the receipts from its October event and announced that it raised the massive sum of £207,000.

Teams from 50 law firms were involved but the stand-out winner – and of course there has to be a competitive element – as the Cycle Your Way 2020 Champion were the domestiques from Jones Day (who pedal under the moniker ‘Terrible Economic Cycle’) generating a high octane £21,050 after cycling 7,819km. (This also won them the ‘Going the Distance’ award for the team that travelled the furthest).

To mark their achievement they were presented with the Tour de Law Champions jersey, provided by Team INEOS Grenadiers having wrestled it from the handlebars of last year’s winners Sidley Austin (who could only manage a humiliating 13th this time round).

Claire Pulford, Associate Director of Events & Community at Breast Cancer Now, said Due to the COVID-19 pandemic it is an extremely difficult and uncertain time for people affected by breast cancer. COVID-19 has put many areas of our work on pause – as such the funds raised through Tour de Law are more critical and urgently needed than ever before. By taking part you have helped us to continue our world-class research, and to provide life-changing care and support that so many people affected by breast cancer rely on.”

For the full list of winners go to https://breastcancernow.org/get-involved/sports-adventure/charity-bike-rides/tour-de-law

QUOTE OF THE WEEK – ‘IMPRESSIVE?’

 Commenting on the Government’s response this week to its 2017 consultation on the question of reform of corporate criminal liability, Kingsley Napley criminal litigation partner Alun Milford says: 

 “Three years to consider a consultation exercise, produce a fence-sitting report of 74 paragraphs and then pass the buck to someone else is hardly impressive. So the status quo continues but this issue has not gone away.”

That tells it like it is – but is anyone listening? Doubt it. Don’t you know there’s a Covid On?

COMMENTARY OF THE WEEK – THE DEPP CASE

Johnny Depp – Not so funny after all

The extraordinary case of, in effect, Depp versus Heard generated a vast amount of comment on everything from the squalor of celebrity lives to the catastrophic cost of going to law, But was the case really about libel or domestic violence? Here are two views on its significance.



 Sarah Harding,

Sarah Harding, a Partner within the Family team at Hodge Jones & Allen

At a time where the court system has been hugely impacted by the pandemic, to be given three weeks of High Court time is unacceptable.

If this was a domestic abuse case and had been held within the family courts, overseen by a district judge, it would have been a much simpler process, all while still providing the necessary protection to the victim.

The high-profile nature of this case meant that it was given a substantial amount of time and resource, which seems to me to be completely unnecessary.

It is disappointing to see this reflected in our justice system when there is a significant backlog of cases, involving serious allegations which cannot get a court listing at all. While, undoubtedly, cases with cross allegations of abuse by both parties are complex, we’ve worked with many clients in similar cases and, in reality, it is very rare for witnesses to be allowed to give evidence, and the court would usually not allow (and do not have time) to give more than one day, which is usually permitted. 

 “However, it is hoped that this case will encourage other victims of domestic violence to come forward and seek the protection that they need. This case will highlight that the courts do listen, regardless of wealth or stature.”

Sarah Jane Lenihan

Sarah Jane Lenihan, Partner at Stowe Family Law

This ruling will help induce some much-needed confidence in victims, knowing that even someone as famous and wealthy as Johnny Depp cannot avoid the truth being told.

Domestic abuse comes in many forms and can lead to a lack of confidence in victims following (often) many years of enduring such behaviour.  As such, one of the ongoing fears I regularly hear from victims is whether somebody will believe them. It takes great strength not only for victims to seek advice but also to speak out against their abusers. 

As we move into a second lockdown, this judgment serves as a reminder to victims that they do not have to suffer in silence and that there is help available. 

It became very clear during the last lockdown that resources for victims of domestic abuse are severely underfunded, and many urgent calls were made to the government to rectify this. Government guidance makes it very clear that household isolation instructions do not apply for victims who need to leave their home to escape domestic abuse. 

Victims of domestic abuse who find the courage to speak out can breathe a sigh of relief in knowing that family lawyers and courts will continue to sit and be fully operational during the second lockdown.”

CAMPAIGN OF THE WEEK – EQUAL CHANCES FOR ALL IN RECRUITMENT AND DEVELOPMENT

Ashurst, Clifford Chance, Herbert Smith Freehills, Slaughter and May, and Travers Smith have joined up with more than a score of recruitment agencies serving the legal sector sign up to the Recruitment Agency Race Fairness Commitment (RFC) to ensure that Black and ethnic minority job seekers get the same opportunities to compete for roles as similarly qualified White counterparts.  

The Recruitment Agency RFC was developed by diversity recruitment specialist Rare and it recognises that external agencies have an important role to play alongside internal recruitment and HR teams in ensuring equal access opportunities to all candidates.  

“Crucially, this initiative is about maximising opportunities for experienced and senior candidates, as well as entry-level, to ensure a “top-down” as well as “bottom-up” effect on diversity in organisations,” says a spokesperson for the initiative. “Candidates join an organisation at one of two stages: at entry level or through lateral recruitment, meaning racial equity of opportunity must be addressed at all recruitment points.”

Gareth Quarry, Chairman and Joint Group Chief Executive at SSQ, and one of the most senior and long-standing legal recruiters in the world said,

“SSQ is committed to fairness at work regardless of ethnicity and we aim to present shortlists that are rich with diversity. It is only by being pro-active that we will break down unconscious bias and open up the profession to everyone. The law is less diverse than many other business sectors. This is a product of our educational and social systems to a large extent. We are determined to do all we can to change this. 

It is very easy to talk about diversity. True inclusion is harder to achieve. We work with our clients to help them achieve their diversity objectives ….and to shape the legal profession of the future to ensure that it becomes a fairer one.” 

Signatories to the RFC commit to a range of measures, including: 

+ ensuring that their candidate pools at least match the UK ethnic diversity and aspire to the local population if greater; 

+ taking the time to explore contextual backgrounds and experiences of Black and ethnic minority candidates to better represent diverse candidates to organisations; 

+ demanding hard, factual feedback on any ethnic minority candidates not hired. “Didn’t fit” and “something is not quite right” are not acceptable reasons for not hiring and are often code for bias. 

Recruitment agencies will be asked, on an annual basis, to submit evidence of progress in relation to the nine points in the Recruitment Agency RFC. This will be reviewed by a steering group, comprised of representatives from Rare and the founding law firms, to ensure the commitment remains fit for purpose. 

Further details about the Recruitment Agency RFC and its associated measures can be viewed at http://recruiter.racefairnesscommitment.com/

LEGAL ARTWORK OF THE WEEK – ANTONY GORMLEY’S ‘HINGE’

No social distancing here With thanks to Antony Gormley and Weil

With lockdown all around, social distancing de rigeur and lawyers deprived of enjoying the artwork on their own office walls we have taken the liberty of featuring the brilliant HINGE by Antony Gormley which can be seen (actually from the street) in the atrium of Weil’s office adjacent to the Commercial Court off Fetter lane – because now is the time to enjoy the City streets free of the crowds. Enjoy (but don’t get caught doing this kind of thing yourself).

We will be back again next week – providing the USA by then has a President Elect. So please send your news, views and insights to:

fennell.edward@yahoo.com

and please pass on and suggest to colleagues.

Edward Fennell’s LEGAL DIARY

Friday October 30 2020 Edition 32

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK

WRITS OF UNPOSSESSION?

With the ending of the furlough scheme things are about to get very tight for many of our fellow citizens. But this is just the start. There is going to be a heavy reckoning for the cost of Covid-19 over the winter and tensions will surface which have no easy solution in law.

For example, David Smith, a partner at JMW Solicitors highlights that following an intervention by Robert Buckland, the Lord Chancellor County Court Bailiffs and High Court Sheriffs are declining to enforce warrants and writs of possession. That is entirely understandable and, you might say, compassionate. However there’s a catch. “The problem with the Government’s approach is that it is almost certainly unlawful,” says Smith. “It is not open to Bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so. They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.”

 Mind you, we are now becoming accustomed to this government not being too concerned with the niceties of what the law requires. So maybe anything goes.

The LegalDiarist

IN THIS WEEK’S EDITION

+ LEGAL DIARY OF THE WEEK

– Mishcon de Reya

– Pinsent Masons

– Hodge Jones & Allen

– Kennedys

+ CAMPAIGN OF THE WEEK – LEGAL AID IN PERIL

+ LEGAL INSIGHT OF THE WEEK – NEW JOMATI REPORT POINTS TO PRACTICALITIES OF ‘BUILDING BACK BETTER’

+ THE LEGAL DIARY’S ‘WORTH A WATCH’

+ STEVEN HEFFER Collyer Bristow’s Partner and Painter

THE LEGAL DIARY OF THE WEEK

Mishcon States its Position

As has been widely reported, Mishcon de Reya played a key role in setting the scene for the EHRC investigation into anti-Semitism in the Labour Party. The publication of the investigation’s report yesterday could have left no-one in two minds about the culpability of the party. Not surprisingly then the firm was feeling vindicated in its campaign in conjunction with the Jewish Labour Movement.

“Over the past two years we have worked with the JLM and whistleblowers from within the Party,” the firm said in a statement immediately after the EHRC report was published. “We have been repeatedly reminded of their bravery in fighting antisemitism, often against the backdrop of abuse and gaslighting.  That bravery led to powerful submissions being made to the EHRC, which were accepted: the pain of the targeted members has finally been acknowledged.  The EHRC has set out where the Labour Party has fallen short of its legal obligations.  We join our client’s call for the party now to adopt appropriate systems and political and cultural change to ensure the protection and lawful treatment of all its members.”

The Labour Party is now under new management and significant institutional and systemic change can be expected. How far individual members change their attitudes (notably a certain J.Corbyn) clearly remains a different matter.

Vario on the Go

Another sign that the legal profession can continue reinventing itself comes with the news that Pinsent Masons is bringing Vario, its ‘flexible resourcing’ business, in from the cold and bundling it up with a range of other consultancy services to sit alongside its mainstream legal practice.

“For some time now there has been a move away from the idea that the provision of legal services is mainly about ‘black letter’ law,” commented Matthew Kay, the Managing Director of Pinsent Masons Vario “ More and more, we and our competitors are called on to play a central role in responding to broader business issues through the provision of technology, or the delivery of managed legal services. While flexible services have been a game changer in recent years – enabling businesses to dial resource up and down in line with day-to-day needs – this offering alone will not be the only solution required by clients as they grapple with increasingly complex business demands.”

What exactly are these non-black letter law areas of expertise? They include activities as varied as legal technology, diversity and inclusion, project management and the resourcing and management of legal services. So quite a mix.

“Legal services have been transformed in recent years by increasing client demand for a flexible and solutions-based approach to legal and commercial challenges,” said Richard Foley, the firm’s Senior Partner.

So welcome to the new lawyer – fixer-in-chief.

Judicial Review under Threat

Worries are growing that reforms envisaged by the current Independent Review of Administrative Law might result in restrictions being placed on the scope of judicial review. “These reforms appear to be premised on the notion that basic judicial review principles have taken a wrong turn over the last 40 years,” said Alice Hardy (above), Partner and Civil Liberties Solicitor at Hodge Jones & Allen, “Indeed, the period which the review calls into question arguably spans back well over a century. It is not a simple exercise to examine a body of jurisprudence [which is] this large and suggest remedies for those aspects that government bodies find uncomfortable, nor is it one that should be undertaken lightly.”

Hodge Jones & Allen says that it recognises improvements are possible and it would welcome a review of the rules in judicial review proceedings – but not as a means of controlling costs, as appears to be proposed. “There are already sufficient powers available to deal with unmeritorious claims,” the firm points out. “Limitation periods could also be reviewed to ensure individuals are not disproportionately disadvantaged.”

Hardy went on to say, “We see no justification for restricting access to justice still further, still less in such a wholescale, radical way, save for the Government’s evident wish to limit the courts’ ability to reach decisions that are embarrassing or inconvenient. There can be no doubt that to do so would disproportionately affect the vulnerable and disadvantaged. Ultimately, better quality government decision-making; better training, supervision and care would reduce the need to resort to judicial review, without threatening the courts’ practical ability to uphold the rule of law.”

Trust Boris in a self-driven car?

Is the Government’s plan for another ‘world leading’ technological advance going to stall? Now that ‘track and trace’ has been lost somewhere in Manchester (or was it in Liverpool – who knows) autonomous vehicle technology has been touted as the country’s next big spin. How worrying then that international law firm Kennedys has flashed a warning sign that the Government has a number of obstacles to negotiate if it is to avoid skidding off the road.

For Kennedys ‘consumer confidence’ in the technology will be key – and that is not forthcoming yet. In fact, its own research shows that “Public acceptance of widespread autonomous vehicle technology is far from guaranteed and that without it, governments around the world will struggle to implement the technology.”

Equally important though is that the legal framework around self-driving cars will need be significantly upgraded to make it fit for purpose. “The Government’s ambition to place the UK at the forefront of new technologies, and data-driven innovation is clear and commendable,” says  Deborah Newberry, Head of Corporate and Public Affairs at Kennedys, “However, that shift requires a suitable policy framework to achieve those aims and, in particular, address concerns around public safety, where the liability rests when accidents occur and data security. Faced with these challenges, the Government must establish a trusted data framework and listen to the views of end-users in order to realise its vision of technical leadership.”

All of these concerns have now been put to the Centre for Connected and Autonomous Vehicles on the Safe Use of Automated Lane Keeping System (ALKS) as it ponders what should happen next. Probably the best suggestion is ‘Slow Down’ .

Editors Note: Thatcham Research and the Association of British Insurers (ABI) are urging the Government to revise its plans to introduce Automated Lane Keeping Systems (ALKS) onto UK roads in early 2021 because it will put road users’ lives at risk.  “The Government should undertake further work with insurers and the automotive industry to ensure road safety is fully considered before introducing Automated Lane Keeping Systems,” it says.

CAMPAIGN OF THE WEEK – LEGAL AID IN PERIL

CILEx (The Chartered Institute of Legal Executives) has added its voice to the growing protests in the profession at the cuts to legal aid and the consequences which follow.

Responding to the current Criminal Legal Aid Review inquiry CILEx says, “Funding cuts caused by LASPO have not only compromised recruitment by disincentivising talented practitioners from pursuing career paths in legal aid provision but have also undermined retention efforts as underfunding and under resourcing leads to widespread issues such as incessant court backlogs. As a result, working arrangements within the legal aid market have grown increasingly dependent on a limited pool of providers to provide an unrealistic level of output, worsened by new initiatives, such as extended opening hours for the court estate. Without sufficient funding to resolve the root cause of these shortages, solutions such as extended operating hours are simply unsustainable.”

CILEx recommends earlier access to payment for legal aid work to help financially precarious firms, “In order to help safeguard income streams, manage risk and protect the financial longevity of providers in supplying legal aid services.”

CILEx President Craig Tickner, himself a specialist criminal defence advocate, says. The precarious financial stability of legal aid firms pre-dates the current Covid crisis. For as long as we can remember we have been calling for proper funding and additional resources, engaging with review processes such as the Criminal Legal Aid Review. With Covid-19 now hovering over remaining providers like the grim reaper, action is needed now. Any delay will be too late.”

LEGAL INSIGHT OF THE WEEK

NEW JOMATI REPORT POINTS TO PRACTICALITIES OF ‘BUILDING BACK BETTER’

As the light at the end of Covid tunnel seems to recede by the day there seems to be an even greater sense of urgency about the need for ‘building back better’. After all, from all this pain surely some gain must be derived?

Leading legal business consultancy JOMATI has just published a guide for lawyers about how it might be achieved using the structure of ESG (environmental, social and governance)as a guide. As Jomati’s Tony Williams explains, “A common theme to emerge from this economic and social catastrophe is that the world economy that arises from the shadow of COVID-19 should be ’better’ than what has gone before. Helpfully, ideas about what might constitute ‘better’ are now coalescing around the existing concept of environmental, social and governance (ESG). This broad concept offers a useful framework, that organisations can draw on to enact positive change across a broad range of societal issues. Besides helping organisations respond to the challenges posed by COVID-19, the ESG framework can also help them respond to other societal problems, including the climate emergency and endemic racial discrimination, starkly highlighted by the Black Lives Matter movement. Organisations who wish to commit to building a ‘better’ future therefore benefit from having an organisational ‘shorthand’, which allows them to signal to the wider world their intention to do so.”

Williams goes on to argue that in the light of ESG’s growing global importance, “We believe that lawyers and law firms should familiarise themselves with the concept as a matter of urgency.” As he points out, law firms should expect to see far greater scrutiny of their own ESG-related behaviours during tenders, particularly in relation to employee diversity. But, he says, the legal sector already has a ‘positive story to tell’ in relation to ESG because ‘Many components of the ESG concept are based on statutory rules. This means that many lawyers are already helping their clients achieve their ESG objectives, simply by doing their jobs.’

In fact, due to the way diverse ESG concepts are already ‘given force by quasi-legal means, such as industry codes of conduct, reporting obligations and international agreements’ the provision of advice to clients on how to comply with such rules could become a growth market for law firms. “This type of service line expansion illustrates how, for law firms, performing a social good and generating new sources of revenue do not need to be mutually exclusive activities,” says the report.

This thorough and stimulating publication provides both food for thought and plenty of practical examples based on deep sectoral knowledge. Definitely worth investigating.

NOTE: Reimagining your business in a post COVID-19 world: rebuild better is the 20th in a series of reports on key issues facing the legal sector published by Jomati Consultants LLP.

For more visit http://www.jomati.com or email Tony Williams directly (tony.williams@jomati.com) to receive a copy of this or any other report.

THE LEGAL DIARY’S ‘WORTH A WATCH’

 FUNKE ABIMBOLA MBE

Another ground-breaking female lawyer featured in the series of video interviews by ‘First 100 years’, Funke Abimbola MBE is the former UK General Counsel of Roche, the world’s largest biotech company, who has used her voice to champion equality and diversity in the legal profession. In June 2017, Funke was awarded an MBE for services to diversity in the legal profession and to young people.

Length 6’40” Available at

For more go to www.first100years.org.uk

MORE THAN THE LAW

STEVEN HEFFER – PAINTER/LAWYER/ PAINTER

In the first in an occasional series we look at the artistic career of STEVEN HEFFER, partner and Head of Media and Privacy at Collyer Bristow who qualified at the Slade and is still deeply an artist at heart

One of Steven Heffer’s characteristic coastal works

“The year I was born the Arts Council held an exhibition of Abstract Impressionism which brought together artists whose work represented both Abstraction and a painterly interest in colour, touch, light and space,” explains Steven Heffer who manages to combine two very busy careers as both a leading lawyer and an exhibiting artist.
“Interestingly, that seems to  sum up the kind of work I produce. In 2016 I collaborated with well-known art critic and writer Edward Lucie – Smith on an exhibition and book entitled Steven Heffer, A Very British Modernist. I had never thought of my work in that way, but Edward L-S described me as a modernist, which I think is right. I have a particular interest in mid 20th `century British painting. It was that interest which led me to the Slade School of Fine Art, the work of William Coldstream and Euan Uglow in particular. My training there in the early 90’s was largely in the life room and based around rigorous observational painting.
“I grew up in Greenwich, South London and for many years painted the river Thames and the industrial buildings along its banks. This led to my work becoming increasingly abstract, but it still based upon landscape. My first job was in silk screen printing. I could easily have pursued a creative career, but a junior position in a law firm led me to train and qualify as a solicitor and advocate. I went back to art studies after qualifying.
“I still concentrate on landscape , sometimes urban, sometimes the countryside, often around East Sussex where my studio is. Also pure abstract compositions although as Edward L-S commented these often have ‘representational bones’.
“I joined Collyer Bristow as a partner in 2003, and its long connection with the art world and [the firm’s in-house] art gallery was one the factors involved in that decision. I later became the lead partner in the gallery, working with its curator Rosalind Davis in connection with exhibitions and prizes. We have run a very popular art prize for art school graduates in recent years. I have exhibited at the gallery but it focuses on contemporary art often from emerging artists.”

Edward Lucie Smith on Steven Heffer’s work

When one looks at Steven Heffer’s work, one simultaneously thinks oftwo very different, and apparently opposed things. The first is that he is avery British artist. What he does is directly relatable to artists who formpart of the British historical tradition — in particular, to the British artisticrelationship to landscape. Though he paints in a different medium,comparisons are possible with the great watercolourist, John SellCotman. Even, on occasion, one is made to think of the sketches thatJ.M.W. Turner described as ‘Colour Beginnings’. There is a whole trove ofthese radical experiments in the collection of the Tate.Heffer is also indubitably a Modernist — a painter who is directly relatedto the main current of the Modern Movement, now being challenged bymany artists who would prefer to wash their hands of radical Modernistways of seeing, or in fact re-seeing, the world, and who now are happy tobe labelled Post Modernists. In this sense Heffer can be regarded as adirect descendant of John Piper, who also managed to keep a foot inboth traditions.

What Heffer does seem to romanticise is not what he finds on land, but inthe sea. His studio is near Eastbourne, and among his most frequentsubjects are the white cliffs of the South Downs, plunging directly intothe English Channel. Where Turner is a painter of storms, Heffer prefersthe sea when it is at it calmest, serving as a mirror to the chalk cliffs thatborder it. By inviting, or even forcing,the spectator to `see the world differently’, Heffer very much belongs to the High Modernist tradition.”

Edward Lucie-Smith

Art Historian, Author & Critic

For more go to: https://www.stevenhefferart.com/

The Legal Diary will be published again next Friday. Please send your news, views and insights to

fennell.edward@yahoo.com

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And Happy Halloween!!!!!!!!!!!!!!!!!!!!!!!!!!!!!