Edward Fennell’s LEGAL DIARY

Thursday 1st April 2021 Edition 52 Maundy Thursday

Diary news, commentary, insights, appointments and

e-vents from the legal world

SHORT THOUGHT FOR THE EASTER WEEKEND

Lawyr Logo – Obviously with a GSOH

There’s a long Bank Holiday weekend ahead and, with lockdown almost unlocked, you can look forward to a relaxed few days with the ones you love.

But who would love a lawyer? Plenty of people according to Matthew Rhodes of ‘Roll on Friday’ (RoF) whose new dating website Lawyr (‘For lawyers and the people who want to date them’ with logo above) has attracted plenty of publicity and promoted a lively debate on the pros and cons of getting into a romantic relationship with a lawyer. No less a figure than Matthew Parris in The Times relayed on an observation that being a lawyer ‘sucks all joy and potential for happiness out of your soul’ and that however sexually alluring a lawyer’s bank balance may be (presumably of any sex or orientation) it might not sustain a marriage. “I’ve worked for a firm where all the partners were divorced, had suffered heart attacks, or both” was one comment on the RoF site.

But beware the nay-sayers. “These drivel scare stories have been squeezed out for years  – often by jealous penniless journalists who weren’t good enough for the bar or law firms – they end up worth nothing in their 40s and doctor articles to justify their life,” asserted one commentator. How true.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Cyber sword needed for defence

– Clifford Chance Backs Paralegal Skills Initiative

You bet!

– Protesting the Rule of Law?

– Bowled over by India  

+ CONTRIBUTED ARTICLES OF THE WEEK

– IMPROVING LAWYERS’ MENTAL HEALTH by Ann Offomata, Managing Director at Major, Lindsey & Africa

– SCRUTINY THROUGH THE COURT by Kari Gerstheimer, Chief Executive of Access Social Care

+ COMMENTS OF THE WEEK

– The ASDA ‘Equal Pay’ case

+ APPOINTMENTS OF THE WEEK

Clyde & Co and Thomson Snell & Passmore

+ E-VENTS

The Brick Court centenary podcast series continues

LEGAL DIARY OF THE WEEK

Cyber sword needed for defence

Image courtesy of Computerworld

First it was working from home, then it was from anywhere. But wherever you want to work you are potentially at risk from breaches to your cyber security.

That was the clear message of a recent survey of 750 UK law firms, and 500 commercial and M&A solicitors since the start of the pandemic undertaken by Doherty Associates for its report ‘Who Moved My Moat?

The figures make grim reading with a quarter of solicitors admitting that they have been the victim of a data breach or caused one themselves since working remotely – suggesting that employees are not reporting all of the mistakes they make to the firm. About one fifth experienced a phishing attack or similar cyber attack and 42% admitted to emailing confidential client information or unencrypted attachments.

What became clear is that as many as four in ten of UK law probably lack adequate cyber threat visibility and detection systems to protect employees working remotely. And in any case firms are largely unaware of the volume of cyber attacks and data breaches impacting their remote workforce.

Yet despite one third of firms feeling that their IT environment is more vulnerable to a cyber or data breach with employees working outside the office the majority of firms still expect the hybrid office to stay in place after the covid crisis is over.

“Operating a remote workforce in the cloud has many benefits, including greater flexibility, diversity and lower overheads, but it’s critical to ensure that teams continue to operate safely, securely and are fully compliant with FCA and GDPR regulations wherever they are working from,” says Terry Doherty. .

According to Doherty’s survey, employees’ bad cyber habits include working on a blend of work and personal devices when working from home. Around half admit to saving confidential corporate information to these devices. But only 15% of firms have put a block on personal devices for work use.

Meanwhile 32% of employees surveyed by Doherty Associates said they’ve had no cyber awareness training since the first lockdown and over two thirds say they have ignored virus security scan requests or computer update alerts to safeguard their company’s systems and sensitive data.

“Your company is only as safe as your weakest link and by empowering employees with the knowledge to identify threats in real-time, they can become your greatest security asset and help prevent cyber attacks,” warned Doherty.

Clifford Chance Backs Paralegal Skills Initiative

At this time of renewed and heated debate about race Clifford Chance had nominated the New York-base Center for Institutional and Social Change as the winner of its Racial Justice Award for 2021. The organisation will now receive a US$70,000 donation and 500 hours of pro bono support over an 18 month period for the organisation’s  Paralegal Pathways Initiative.

“Last year we committed to work with our people and partners to drive concrete actions to help address the racial injustices highlighted by George Floyd’s death and the international reaction to it,” said Jeroen Ouwehand, Senior Partner at Clifford Chance, “Today I am proud to announce our partnership with the Paralegal Pathways Initiative, through our Racial Justice Award. Racial justice will not simply happen by accident or through kind words. Racial justice is a permanent campaign that requires a permanent commitment to take effective steps by those able to make a difference.”

The significant feature of the Paralegal Pathways Initiative is that it focuses on helping those returning home from American prisons to find sustainable careers by capitalising on the legal research and litigation skills which inmates have often gained while incarcerated.

“We are delighted to be working with a law firm like Clifford Chance, bringing its skills, resources and networks to bear alongside our team and our Fellows,“ said Susan Sturm, the Center for Institutional Social Change’s director added. “Every step on the journey to addressing racial injustices requires hard work, grounded in the leadership of people most directly impacted by racism and mass incarceration. The more allies who work together in genuine partnership and long-term collaboration the better.”

Clifford Chance’s Racial Justice Award is open to not-for-profit organisations globally that help individuals, groups or communities use the law to achieve significant inclusion, racial justice and social impact.

For more information on Clifford Chance’s stance on inclusion and diversity visit here and for more information on Access to Justice initiatives visit here.

You Bet!

Fancy a fleeting flutter?

It’s going to be a big weekend for horse racing and betting and no doubt there will be one or two lawyers out there contributing to next year’s pay-out for Denise Coates of Bet365 (reckoned to have banked a £421 million salary in a 12-month period). But while Bet365 is above board that’s not necessarily true of all the outfits trumpeting deliciously winning come-ons. “I have seen online betting sites with amazing odds. How can I check the credibility of the site and make sure it’s not a scam?” asks, rhetorically, DAS Law solicitor Nicole Rogers.

The answer, of course, says Rogers is:“Check that the organisation that you plan to gamble with is licensed by the UK’s Gambling Commission. Every online gambling business that is licensed is required to display a notice saying that they are licensed by the Gambling Commission with a link to the Commission’s website.  On the Commission’s website there is a license register where you can see what activities a company is able to offer.  If a gambling business doesn’t have a license, it is acting illegally and you would be wise to avoid placing any bets with them.”

Sounds like the best advice of the weekend (even more so than going on Lawyr).

Protesting the Rule of Law?  

It’s impossible to resist the grim nostalgia for the late 1970s and early 1980s when watching TV news right now, full as it is of heaving protestors and police losing it in the ensuing ruck. Also going back in time maybe is the Police, Crime, Sentencing and Courts Bill which The Bingham Centre for the Rule of Law has announced it will be scrutinising in details when its provisions are debated in Parliament.
 

“Currently, the scope for protest is further restricted by Coronavirus lockdown regulations, although the full extent of these restrictions has not always been clear,” says the Centre which has just published a report, Protests During Lockdown (England): A Rule of Law Analysis, considering UK court decisions on protest during lockdown. “The report ends by considering how far the right to protest will be protected by the new lockdown regulations [which have just come into force].”

For more go to https://binghamcentre.biicl.org/

Bowled over by India

As our relations cool with China maybe it is time to focus more attention on India (despite the problems that UK law firms have had in setting up there). With that in mind Axiom Stone Solicitors sponsored the Great Big Indian Money Show which was held online from March 26-28, organised by iGlobal, the internet business directory.

Axiom Stone Managing Partner Pragnesh Modhwadia suggested ways of “Unleashing the Entrepreneur in you”, whilst Chairman Jonathan Metliss drew on his experience for “becoming the Ultimate Networker – How to make great business contacts”. Other contributions came from Idnan Liaqat, Head of Commercial and Residential property, on the value of property auctions, Vassos Vassou, Head of Private Client, on wills and inheritance tax planning and Olivia Cooper, Head of Private Wealth and family Office, on funding a business.

England might not be able to beat India at cricket but it still has something to say about the laws of the game.

CONTRIBUTED ARTICLES OF THE WEEK

LAWYERS’ MENTAL HEALTH

Could flexible working help solve the legal industry’s mental health crisis? suggests Ann Offomata, Managing Director at Major, Lindsey & Africa

Ann Offomata

The fact that junior lawyers suffer from anxiety and depression due to long hours and hefty workloads is unfortunately nothing new. What is new, however, is that these lawyers have become more vocal in their discontent.

Covid-19 has intensified the mental health crisis facing associates. Remote working, seclusion and financial insecurity due to a pandemic-induced recession are contributing to poor mental health and affecting concentration, workflow and productivity. At the same time, the pandemic has also shone a spotlight on these problems.

Prolonged isolation has prompted junior lawyers to speak out: all-nighters are easier to handle with a sense of camaraderie in the office, but access to colleagues as a source of support and validation has been more limited.

As UK restrictions ease, law firms need to better understand the contributing factors to stress and poor mental health. As well as addressing billing pressures and client demands, a broader view is needed. Many junior lawyers suffer from imposter syndrome and feel harshly judged or penalised for mistakes – could they be being intimidated by their superiors? Might some feel isolated due to their ethnicity or socioeconomic background? Are teams adequately staffed? Are mentoring schemes fit for purpose?

To prevent burnout and toxic environments, firms must eliminate the stigma still attached to mental illness so that lawyers can disclose concerns without fear of being labelled as weak. Some firms are trying to be more empathetic, offering on-site psychologists, training staff to detect problems and introducing mental health support as well as other wellness initiatives. But there is a long way to go.

Paradoxically, although remote working may have accentuated their mental health problems, associates are increasingly demanding flexible working, so that they can find a better work-life balance.

Firms who listen and promote self-care will have their pick of the best talent, and a more productive, efficient and profitable team. In contrast, those who drag their feet or rely purely on token gestures, will come across as old-fashioned, valuing control and presenteeism over good mental health.

Associates have proved their worth over a challenging year. Law firms ignore their achievements, and their mental health needs, at their peril.

SCRUTINY THROUGH THE COURT

The Government’s plan to overhaul powers of judicial review is dangerous says Kari Gerstheimer, Chief Executive of Access Social Care

Kari Gerstheimer

On the 18th March, the Government announced plans for an overhaul of the powers of judicial review to “protect” judges from being drawn into politics. This is dangerous. Judicial review is a vital mechanism in which a judge reviews the lawfulness of a decision made by a public body, protecting us from abuses of power and helping ensure good governance.

Boris Johnson’s attempt to strip the courts of the power to challenge unlawful Executive decisions, preventing us from holding public bodies to account, could lead to thousands of older and disabled people being denied the social care they are legally entitled to.

The Prime Minister is ignoring his commissioned independent review – which determined that the courts would respect the institutional boundaries of judicial power – claiming instead a need to redress the imbalance of powers in favour of the Government.

If you need social care, you may already be painfully aware that the balance of powers is decisively out of whack. Since 2010, the 92% drop in the number of community care legal aid cases means local authorities can effectively act unlawfully with impunity.

Even the Government acknowledges that their proposals to introduce prospective only remedies (which would apply only to future decisions) “could lead to an immediate unjust outcomes for many”. What this means is that unlawful assessments and unsafe care plans could go unchecked. The proposals to suspend quashing orders risks delaying remedial action for individuals seeking redress. With strong financial incentives to delay moving a person into more expensive provision the potential risk for people languishing in an inappropriate care homes for months is quite real.

For too many, the right to social care might as well not exist. Scrutiny through the courts matters. The Government’s potential changes mean the weight on the scales could be immovably stacked against you.

Kari Gerstheimer is a qualified solicitor who has worked in the charitable sector since 2006 and set up a beneficiary facing legal department at Sense, before moving to Mencap with her legal team in 2017. She incubated the Legal Network within Mencap before setting up Access Social Care as an independent charity in 2020.

COMMENTS OF THE WEEK

THE ASDA EQUAL PAY CASE

The Supreme Court ruling, where more than 44,000 Asda workers have won the latest stage of their equal pay claim with bosses, attracted a considerable amount of comment including from:

Andrew Nugent Smith, Managing Director of class action law firm Keller Lenkner UK, which acts for thousands of Tesco employees in separate but similar claims against Tesco:

“This is a significant victory for shop floor workers in the long-running battle between supermarkets and their employees. Today’s ruling sets a strong precedent for other claims against large supermarkets. 

“It is good to see that shop floor workers can now be validly compared to distribution workers, and that today’s Supreme Court ruling has been made in favour of employees.

“The reality is that shop floor workers are predominantly female and that a higher proportion of men work in distribution centres, so today’s ruling is also a victory for equality.”

Suresh Patel, Mishcon de Reya Employment lawyer: 

“Today’s much anticipated Supreme Court decision in Asda Stores v. Brierley confirms that for the purposes of their equal pay claims, retail staff working in Asda supermarkets can compare themselves to distribution staff working in Asda warehouses.

However, this decision is only the conclusion of a preliminary step in the litigation. The case now goes back to the employment tribunal, where the claimants must show that they perform work of equal value to the distribution employees. Asda can also raise the defence that any difference in pay is due to a non-discriminatory material factor.”

Philip Richardson, partner and head of employment law at Stephensons:

“The ruling by the Supreme Court is a landmark moment for thousands of employees and will have profound consequences for many other companies with similar employment practices and pay structures. The cumulative effect of these claims could see other supermarkets and retailers face eye-watering figures in terms of compensation.

“The focus will now shift towards a possible further legal challenge to establish whether specific store and distribution jobs were of equal value and that the employees’ gender was a factor in the rates of pay being lower than their male counterparts.”

APPOINTMENTS OF THE WEEK

Rosie Ngw has joined Clyde & Co as Partner to its Global Insurance Group in Hong Kong. She was previously with HFW, where she advised policyholders, insurers and reinsurers, and intermediaries on all aspects of insurance and reinsurance dispute resolution. She also provides insurance regulatory advice and advises on policy wordings and product development.

Rosie has a proven track record advising on complex insurance issues involving Hong Kong and is a former director of the Hong Kong Insurance Law Association. Simon McConnell, Managing Partner of Clyde & Co Hong Kong, comments: “Rosie is well-regarded in the market as one of the leading insurance and reinsurance lawyers in Hong Kong, so we are delighted to have her on board. Her practice complements the work of our existing group, and adds new dimensions, specifically in relation to product liability.” 

Tom Hall has been appointed as a Partner by Thomson Snell & Passmore to its Court of Protection department, one of only two firms to be ranked in the top tier for Court of Protection work UK-wide in both Chambers and the Legal 500. He joins from Hyphen Law (formerly part of Thrings LLP), where he acted as the relationship holder for a busy caseload of deputyship and personal injury trust clients and their wider networks. He was responsible for the day to day management of high value and often complex deputyship and personal injury trust matters supporting severely brain injured clients.

Brian Bacon, Head of Court of Protection at Thomson Snell & Passmore, adds: “By tapping into Tom’s considerable expertise, we will be able to further broaden and strengthen the already excellent service and support we offer to our clients and their families.” 

E-VENTS (Legal Webinars, blogs and more)

BRICK COURT SHARES ITS EXPERTISE ON ITS CENTENARY

In the second episode of an ongoing series of podcasts David Anderson QC and Maya Lester QC share views and experiences on “Stepping outside the law”:

https://www.brickcourt.co.uk/centenary/podcasts#episode2

Why and how do some lawyers step outside the law? How does legal life prepare one for public life? What happens when law and politics meet, and when might each need to give way? Where and how can one have the most impact – in the courtroom or outside it? What do lawyers bring to the House of Lords? 

And why are foreign spooks jealous of the British (is it really James Bond)?

Join David and Maya as they discuss these, and a host of other, questions.

The LEGAL DIARY offers you a very Happy Easter. We are taking an Easter Break ourselves but aim to be back in our usual Friday slot on Friday 16 April.

But meanwhile please keep sending your news, views, comments and insights to

fennell.edward@yahoo.com

And please pass on this edition to friends and colleagues . Many thanks for reading!

Edward Fennell’s LEGAL DIARY

Friday 26 March 2021 Edition 51

Diary news, commentary, insights, appointments and

e-vents from the legal world

SHORT THOUGHT FOR THE WEEK

– BRISTOL FASHION

A great time was had by all Image SWNS

One week ago exactly – in last Friday’s LEGAL DIARY – we were celebrating Bristol’s position as a major hub for legal tech. Ed Boal, Director & Head of Legal Ops at Stephenson Law commented that, “If there is any region outside London where LegalTech should spring up and prosper it is in Bristol …… with the ecosystem we have.” Within 48 hours the Bristol ecosystem then showcased its other great strength as the city with the most innovative approach to legal street campaigning. While last year Bristolians gave us an exhibition performance in statue-rolling, last Sunday they offered an object lesson in how to do over your local nick.

Actually it was a healthy reminder that for all the legaltech in the world there are still people who prefer to hammer out legal matters face-to-face. So, the Government’s ‘Police, Crime, Sentencing and Courts Bill’ has provided an opportunity for people to come together in the fresh air for frank exchanges about legislative change – although that might not stick as a plea for leniency in the courts in the months ahead.

The Legaldiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

– Brown Rudnick Goes Urban

– Til Divorce Do Us Part

– Musical Cheers

– Muddled headline

– Speaking of Prince Harry

– Being Responsible in Brum

+ LEGAL COMMENTS OF THE WEEK

– ECHR: NOT QUITE WHAT IT SEEMS?

– PLAIN TALK ON TAX AVOIDANCE

– UNHAPPY FAMILIES

– COMING HOME: SUPREME COURT CLARIFIES PARENTS’ RIGHTS

– SLEEP-IN WORKERS

+ APPOINTMENTS OF THE WEEK

– Satra Sampson-Arokium at Dechert

– Jordan Owen at DWF

+E-VENTS ETC.

THE LEGAL DIARY OF THE WEEK

Brown Rudnick Goes Urban

At last an inclusive education programme from a law firm which looks as if its got some real ‘meat’ (or tofu for you veggies) rather than just window dressing.

Brown Rudnick has signed up with Brunel University to support its Urban Scholars Programme which operatesSaturday school’ for local pupils ‘who come from disadvantaged backgrounds’. But this is not just a day- or week-long exercise to tick the CSR box. It is a three year commitment including mentoring and work placements to deliver what they call ‘sustained support’.

“The aim of the programme is to inspire kids and introduce them to careers that they didn’t think were accessible to them and to provide them with skills and confidence,” says the firm. It provides ‘enriched learning experiences’ for pupils aged 12 -18 from across 10 of London’s 32 Boroughs. Significantly this is the first funding and strategic collaboration between Brunel University USP and a law firm. “If there is any hope of tackling the lack of diversity in the legal profession, we have to start with young people at school,” said Neil Micklethwaite, Managing Partner of Brown Rudnick LLP in London. “USP supports bright students from underprivileged backgrounds by providing them with role models, as well as helping them with their confidence, academic, and reasoning skills. Crucially, this programme introduces students to career opportunities that they might not otherwise have pursued.”

Abdur-Razzaq Ahmed, an Associate of Brown Rudnick’s Litigation & Arbitration Practice Group, was involved in the first session. “We see a lot of opportunity to pass on what we know and have learned during the course of our careers, and to draw on our network to help you develop yourselves and your skills,” he said. “With that guidance, we hope that you have the real, unwavering self-belief that you can pursue any career that you want to.” Including, one would trust, not just in the law. (After all we can’t all be lawyers, can we?).

Til Divorce Do Us Part?

The perennial war between the sexes has turned particularly vicious of late (with both domestic violence remedy applications and orders reaching record numbers – see more below) so maybe there was more despair than hope in the comment by Hannah Gumbrill-Ward, Solicitor at Winckworth Sherwood, that, “Looking forward to the year ahead we predict that this decreasing trend [ the number of divorce petitions falling] will reverse and that there will be an increase in both divorces and financial remedy applications as the world starts to open up again. People will no longer be locked down together in toxic or abusive relationships and will be able to start rebuilding their lives independently as the world rebuilds and finds its new normal.”

Alternatively, might some couples have re-connected with each other during lock-down and decided that, actually, they quite like each other? Or is that hopelessly romantic?

Musical Cheers

We all feel sorry for the battered music industry right now with no-one actually paying for anything and pirates ripping off the talent. But in the age of lawtech, hope is at hand as explained by ‘PRS for Music’ which reports this week on the success of its Member Anti-Piracy System (MAPS). Apparently, in the battle against digital music piracy, MAPS uses ‘web-crawling technology’ to detect and report infringements. Thanks to MAPS, 76% of dodgy URLs have been removed with non-compliant sites being directly referred to the Police Intellectual Property Crime Unit’s ‘Operation Creative’. “We are pleased that MAPS has allowed us to protect the value of our members’ music,” said Simon Bourn, Associate General Counsel, PRS for Music. “It has led to the demise of hundreds of illegitimate services.” If only it could also knock out whole decades of dire music (starting with the 1990s) all would be well.


Muddled Headline

Born to Succeed? Image Royal UK

My apologies to Jacqui Lazare of Clarke Willmott for completely misinterpreting the headline to her announcement this week that WILLS HOLD KEY TO FAMILY BUSINESS SUCCESSION. Given the current national preoccupation with everything regal I assumed she meant that, post-Elizabeth II, Prince William must succeed to the throne – rather than his Matmite-y Dad – to ensure the monarchy (‘the firm, the family business’) survives.

Actually, once I had got into the body of the story, it was something much more serious. “Many families with a business are now using discretionary trusts to ensure that family members receive their inheritance rather than the taxman. Instead of leaving exempt assets in a will to a spouse outright or to a life interest trust the assets are left to a discretionary trust with chosen beneficiaries.” Prince Harry, at least, should take note.

Speaking of Prince Harry

Hotfoot from yesterday’s panel discussion on ‘How to best support the mental health of your legal team’, chaired by Chris Parsons of Herbert Smith Freehills and organised in conjunction with legal search agency Major, Lindsey & Africa, Lisa Owens, Managing Director at ML&A reported on some of the key take-aways.

The frank conversations between our leading GC panellists showed that business models can no longer simply be based on hours in the office – workforces have proven they can work anywhere, and successfully,” she said. “Companies and in-house legal teams must learn lessons about the benefits of flexible working for mental wellbeing and avoid a return to a culture of presenteeism this year.”

After [yesterday’s] session” she continued, “I feel encouraged that the mental health conversation in law is clearly progressing, with companies and in-house legal teams recognising that they have to go far beyond paying lip service – but there is always more work to be done. Now is the time to ensure tangible progress is made in breaking down the stigma around mental health in the legal industry.”

Panel members included  Maria Hemberg (Volvo Cars), Marco Kerschen (Wallgreens Boots Alliance) and Dr Beatrice Vos (Elanco EMEA) – a nice bunch of clients to have on tap.

Being Responsible in Brum

Not an Ivory Tower in sight Image courtesy of Birmingham University

If you are ahead of the curve you already know that there is a ‘data science skills gap’ in the legal profession. (And if it had passed you by just blame the lack of a water-cooler culture in recent months). Anyway, Birmingham University is intent on closing that gap with its new one-year MSc programme in ‘Responsible Data Science’ which combines data science with ‘the capacity to understand and critically reflect upon the social, ethical, and political implications of data-driven applications’. Impressive, eh?

One of the first law firms to catch the wave is Eversheds Sutherland which will be providing paid internships for students on the course, helping to create case studies for the course itself, and offering support to students around wellbeing and pastoral care. “With our partners, we are developing the next generation of lawyers, who understand both the fundamentals of data science and the core legal, ethical and regulatory implications in real-world settings,” said the University’s Professor Karen Yeung, Interdisciplinary Professorial Fellow in Law, Ethics and Informatics. Jobs for the future for sure? Well probably – the course does claim to lead to ‘new and yet-to-be-created roles’.

LEGAL COMMENTS OF THE WEEK

ECHR: NOT QUITE WHAT IT SEEMS?

It’s a cover-up Image courtesy of Council of Europe

You don’t have to be an avid ‘Leaver’ to suspect that something is off kiltre in Europe at the moment. Never mind the European Commission, now it is the European Court of Human Rights (ECHR) which is under scrutiny for suspending access to its files and decisions. Commentators are now expressing concern about the Court’s stance on open justice and impartiality prevention measures.

One of the key critics is Professor Jurij Toplak (University of Maribor, Slovenia, and Visiting Professor at Fordham Law School, New York) who suggest that the ECHR is actually behaving illegally. Here are some of his observations:

After allowing access to its single-judge decisions for decades and after sending applications out for several months, the Court’s termination of access in March 2021 due to the pandemic seems unjustified. The pandemic has not worsened in March 2021. No court should be allowed to hide its decisions from the public.The files are public documents. This means that the ECHR has to allow the public to see them. In no other circumstances in the past has the court suspended its services.

I believe there is something else at play. It may be a tendency to limit the transparency. But this move, however, is extreme. It is also illegal.The Convention makes it clear that the public should have access to files. Several political leaders worldwide have justified their dubious decisions with pandemic. I would have never expected that from the ECHR.

To protect its integrity, the Court needs rules and safeguards that prevent the staff from acting arbitrarily when responding to access information requests. It is high time for European lawyers to raise their voices against dubious case management practices and secrecy of judicial decisions and files.

Over to you?

PLAIN TALK ON TAX AVOIDANCE

The Government is launching (yet another ) consultation on how it might “clamp down on promoters of tax avoidance” as part of its perpetual aspiration to improve Britain’s tax system.

All of which prompted James Austen, Tax Law Partner at Collyer Bristow LLP to comment that, The reality is that such promoters of tax avoidance schemes. are now few and far between and those remaining in the market are normally based outside the UK, which presents obvious difficulties in taking effective enforcement action against them.(So good luck with that one).

Added to which “HMRC has published rather curious discussion documents, which contain details of how it uses data received via the various international tax transparency and reporting schemes (such as CRS and FATCA).  These contain consultation questions intended “to inform future policy measures, but they contain no firm proposals about improving taxpayer compliance.” (In other words, gestures but no action].

And when it comes to tackling disguised remuneration tax avoidance and off-payroll working rules: Both disguised remuneration and off-payroll working are topical.  Both are clearly still on HMRC’s radar, though no new measures specifically targeting them are announced in today’s command paper, which will be a relief to those affected.” (In other words, a big kick to that familiar can down the same old road).

UNHAPPY FAMILIES

Getting it wrong………… again

The publication of Family Court Statistics Quarterly: October to December 2020 revealed that the number of domestic violence remedy order applications increased by 19% compared to the equivalent quarter in 2019, while the number of orders made increased by 20% over the same period. Here’s what some high profile family lawyers had to say about it.

 Nick Manners, Partner at Payne Hicks Beach

The most concerning feature of the latest statistics is the huge increase in domestic violence cases on last year. Alarm bells should be ringing in Whitehall and this toxic by-product of lockdown must be addressed as a priority, not just in the Courts, but also with early intervention to protect the most vulnerable.

The pandemic has hit a justice system which was already creaking and brought it to its knees. Cases take far too long to complete. The time it takes for divorcing couples to get through the process is increasing at an alarming rate, preventing couples (and indeed any children involved) from achieving closure, allowing them to move on with their lives. I have seen this in my own practice, where often the only thing which prevents couples from moving on is the appallingly slow time it takes to actually obtain a divorce.”

Toby Yerburgh, Partner and Head of Family Law at Collyer Bristow:

“As predicted, lockdown has led to an increase (5%) in the number of divorce cases started in the last quarter of 2020.  This is not, though, quite the catastrophic rise predicted by some, with many couples probably holding off from divorce proceedings in the hope of  reassessing their relationships once some form of post-lockdown normality is established.

Charmaine Hast, Head of Family at Wedlake Bell, comments:

 “The MoJ Quarterly Family Court Statistics for the period October 2020 to December 2020 provides an extraordinary insight into the emotional burden that has been placed on the population by Covid. Interestingly the final orders of divorce were down 54% for the same period last year, which prima facie may indicate that extreme behaviour is on the increase and the public may be having second thoughts about divorce during financially challenging periods like the present pandemic. 

The question has to be asked whether the new “normal” will mean that the prolific divorce rate will slow down because parties are pulling together during difficult times?”

Victoria Sterritt, Partner at Seddons

 “Laments of the destructive impact of covid 19 on relationships and family life have not been fake news but sadly are all too real and obvious when one looks at the statistics. …… The reasons for divorce and separation remain the same but the decision making somewhat accelerated by circumstances.  The fact the court system and the process is overwhelmed leading to delays only serve to prolong the pain.  Families and individuals have been thrown together in a vacuum, and held with a vice like grip, with the removal of practically all release outlets and this has led to frustration often manifesting in anger and the need for protection from (sic) the court system.  Family life has faced unparalleled pressures and so as a result the family court has likewise,”

When and where, you might ask, does this all end? In an age of mindfulness shouldn’t we all be doing a bit better than this?

COMING HOME: SUPREME COURT CLARIFIES PARENTS’ RIGHTS

No abductions allowed

A big case in the Supreme Court at the end of last week clarified the rights and wrongs of feuding parents taking children to other jurisdictions and claiming asylum as a way of securing their claim.

Under the Hague Convention, our Courts have an obligation to return children who have been unlawfully removed from their home country.” commented Carolina Marín Pedreño, Partner at Dawson Cornwell, the solicitor for the father involved in the case.  

With borders closing and the world in pandemic-related chaos, it is more important than ever that we have clarity on this issue. With many families agreeing to move children to other countries during their homeschooling in the pandemic, we can sadly expect to see more and more wrongful retention and international abduction cases as children in the days to come.”

This landmark decision sets out the approach that must be followed in cases where there has been the wrongful removal or retention of children and where asylum and immigration issues arise.  It is a very welcome decision, in which the UK Supreme Court has emphasised the commitment of the UK to the terms of the 1980 Hague Convention. It offers some hope to left-behind parents. Should new protocols and an expedited process be put in place, parents could be looking at weeks instead of years for the return of their abducted children. A damaging and destructive legal loophole could be closed.”

SLEEP-IN WORKERS

With so much else news-worthy this week the decision by the courts on payments to ‘sleep-in’ workers (notably in the care sector) has been quickly forgotten – apart, that is, from those directly affected. But here’s the last word from Neill Thomas, employment lawyer at Thomas Mansfield Solicitors, who represented John Shannon, the claimant in the case:

I was very disappointed with the Supreme Court’s decision on John Shannon’s case. The Court literally interpreted an outdated law which stipulates that workers who are permitted to sleep at or near their place of work should only receive the National Minimum Wage if they perform their duties while being awake.

The Court has also swept away the previous decisions in several other cases similar to John’s.

It is the court’s role to interpret the legislation in accordance with what Parliament intended. But did the government really want for the worst paid workers to receive so little? Is it right that some of the poorest people in the society are not entitled to the National Minimum Wage?

If the government wants to rectify the issue, it will need to change the law. Unfortunately, it is too late for John. But there should be hope for a large number of people across Britain trapped in the cycle of poverty. If only the Low Pay Commission could make a new set of suggestions to Parliament.”

Clearly the ball is now in the LPC’s court.

APPOINTMENTS OF THE WEEK

Satra Sampson-Arokium has been appointed by Dechert LLP into an expanded role as the firm’s first Chief Diversity, Equity and Inclusion Officer. Ms. Sampson-Arokium works closely with Dechert’s Management Committee and Diversity and Inclusion Committee in setting and implementing the firm’s strategic plans and priorities for diversity and inclusion.

In her expanded role, Ms. Sampson-Arokium will have an increased focus on client partnership and collaboration to further diversity, equity and inclusion (DEI) goals. “Since joining Dechert in 2017 as our Director of Diversity and Inclusion, Satra has made a significant contribution to the culture and trajectory of our firm,” said Andrew Levander, Chair of Dechert’s Policy Committee. “This appointment emphasizes that diversity, equity and inclusion are at the core of Dechert’s business strategy.”

Jordan Owen has been appointed by DWF to lead its Global Entity Management service. She joins from from KPMG, where she was a senior manager in the Global Entity Management team. Previously she was at Eversheds for five years. 

DWF’s Global Entity Management service allows clients to outsource the day-to-day management of their global entity portfolio, with compliance with local laws and regulations and price certainty. Commenting on Owen’s appointment, Jason Ford, CEO of DWF Connected Services division, said, “Jordan will help establish our new global entity management service, working alongside our existing UK team, and further expand our range of regulatory and compliance services.  With Jordan on board, we will be looking to rapidly expand the team so that we can quickly help fulfil our client needs.”

LEGAL E-VENTS (webinars and the rest)  

Corporate Counsel and Compliance Exchange 2021

After an arguably very disruptive year, we are delighted to inform you that the Corporate Counsel and Compliance Exchange 2021 will soon be taking place.
This year’s exclusive , two-day, invitation-only meeting, will be held on the 5th and 6th May and is, for the first time, 100% online.
The event will bring together General Counsels, Chief Compliance Officers and Senior Legal Leaders who are all actively responsible for developing practical strategies and solutions to drive efficiency, embed ethics and enable growth within in-house functions

REGISTER NOW**

NEW SPEAKERS FOR 2021
**Sarah Binder, General Counsel, Pizza Hut
Sharon Blackman, Managing Director and General Counsel, CitiGeorgina McManus, Global General Counsel, 
Manolo BlahnikSpencer Davis, General Counsel, Daily Mail and General Trust
Timiko Cranwell, Director of Legal and Corporate Affairs, Budweiser
Mitzi Berberi, Legal Director – Western and Southern Europe, Uber
Zoe O’Sullivan, Head of Legal, Southampton FC
View the full list of speakers
REGISTER 
VIEW THE AGENDA

,
Casean Bailey Corporate Counsel and Compliance Exchange 2021info@exchangeevents.co.uk+44 (0)207 368 9484

We intend to be back next week (no plans to travel to Bristol) so do send your stories, news, insights and comments to

fennell.edward@yahoo.com

And please pass this on to your friends and colleagues. Thank you.


 

Edward Fennell’s LEGAL DIARY

First Anniversary edition

Friday 19 March 2021 Edition 50

Diary news, commentary, insights, appointments and

e-vents from the legal world

SHORT THOUGHT FOR THE WEEK

WHAT’S AROUND THE BEND IN THE RIVER?

The week ahead marks the first anniversary of this LEGAL DIARY. Its launch came about almost by accident as Covid hit home, the lockdown crashed in and almost everything that the LegalDiarist commented on for a national newspaper seemed to evaporate. But never waste a good crisis so there suddenly opened up a fresh opportunity to write about this new legal world of working from home and lawyers ‘making it up as they went along’.

To represent this new reality the masthead image of the underside of a bridge in Docklands was chosen primarily because it bore no relationship whatsoever to the traditional brand images of the law – wigs, courts, chambers and the rest. But it did carry an important message that while the world conducts its business on the bridge above, supporting that bridge and making it secure are the four pillars of a rules-based society – the law, the courts, the lawyers and Parliament.

There is plenty of other legal media out there. There is no point in duplicating what they do (mostly) very well. But there are also other stories, viewpoints and people which should not be overlooked. That’s why we’re looking forward to going into our second year. We appreciate that you are reading us. We look forward to seeing what’s beyond the bend in the river.

The LegalDiarist

In this week’s ‘first anniversary’ edition

+ LEGAL DIARY OF THE WEEK

– Wanna hear a story?

Tik Tok Legal Tech

Five Stars for B&B

Mute Point

The Never Ending Story at the Post Office

+ CONTRIBUTED ARTICLES OF THE WEEK

– ACTION AGAINST ILLEGAL ENCAMPMENTS by Wayne Beglan

-UBER RULING: THIS IS JUST THE START, says Kate Hindmarch

-VACCINE PASSPORTS NEED THE STAMP OF RELIABILITY,

says Eduardo Ustaran

+ APPOINTMENTS OF THE WEEK at Fox Williams, Browne Jacobson, JMW Solicitors and Cornerston Chambers

+ E-VENTS and More OF THE WEEK

THE LEGAL DIARY OF THE WEEK

Wanna hear a story?

The big news from New York last night was of the merger between financial service law firms Crowell & Moring and Kibbe & Orbe. Of course this had implications on this side of the pond as well since there are London lawyers involved. As the official announcement put it, “As part of the transaction, 24 lawyers from the storied financial law firm would become part of Crowell & Moring’s New York, London, and Washington, D.C. offices, including Jennifer Grady, managing partner and chair of the firm’s executive committee, three founding partners, Jonathan Kibbe, William Orbe, and Michael D. Mann, and the managing partner of the London office, Andrew M. Martin.”

As so often (and you might have noticed) the word ‘storied’ was deployed to add weight to the announcement. But as a light quibble, one often wonders what it is supposed to mean. Is the firm involved multi-storied or single storied? Are the stories ‘good’ or bad’, entertaining or boring, ancient or new? Or are they just the ‘same old’ stories? Yes, ‘storied’ is a word which asks more questions then it answers. From a law firm one would value a little more precision.

Tik Tok Legal Tech

 Here comes another example of the way law firms are impacting on the business world in a way which would have been unimaginable just a generation ago.

Earlier this week DLA Piper launched an AI-enabled service designed to identify cartel risks within corporations. A combination of the law firm’s legal know-how with what is described as ‘cutting-edge AI technology’ from software whizz Reveal has created Aiscension which can ‘enhance a business’s compliance initiatives’ by detecting and preventing cartels. 

The driver for the new product comes from companies’ fears of unintentionally infringing anti-cartel legislation – the consequences of which can be very serious.

“The efficiency and reduction in cost that Aiscension brings to the market opens up a whole new way for companies to view and mitigate cartel risk,” says Ilan Sherr, Legal Director at DLA Piper and Executive Director of Aiscension. “Aiscension provides our clients with the ability to identify, at an early stage, whether they are at risk of being involved in potentially illegal activity.  This can enable them to take appropriate action at the earliest opportunity, and even prevent any damage from being done.”

DLA Piper will be offering the Aiscension service as part of its enhanced legal offering named Law&. “This solution confirms that a combination of AI technology and human legal expertise can solve complex issues such as cartel activity detection,” added Simon Levine, the law firm’s Global Co-CEO.

Five Stars for B&B

Cutting edge of LegalTech Picture courtesy of VisitBritain

Five Stars for B&B

Speaking of link-ups between lawyers and technology it is worth taking a look at Whitecap consultancy’s impressive report on the role of LegalTech in the Bristol & Bath (B&B) region of the West of England.

The timing is perfect as we start to come out of lockdown. The paradox is that, while technology means that you can WFA, clustering seems even more important than ever. And businesses of all types – not least law firms considering where to develop new offices – are finding the B&B area at the head of the queue. “If there is any region outside London where LegalTech should spring up and prosper it is in Bristol & Bath, with the ecosystem we have,” says Ed Boal, Director & Head of Legal Ops, Stephenson Law.

And that ecosystem is what exactly? Well, apparently there is already a growing cluster of more than 30 LegalTechs, including tech companies working in the legal sector and LegalTech arms, operating in the region. And with the area also providing a base for 26 of the top 100 law firms in the UK it might well benefit also from increased home working especially from London-based firms.

So no surprise then that within the past couple of weeks the Kalifa Review named B&B as one of the top 10 FinTech clusters in the UK. “A mindset shift is required,” said Dan Wright, Partner & Director of OC Solutions, Osborne Clarke. “We need to communicate that this is about enabling people, our lawyers and our clients – about making our lives a bit easier.”

Read more at https://www.whitecapconsulting.co.uk/wp-content/uploads/2021/03/Bristol-bath-LegalTech-2021-LowRes.pdf

Mute Point

A Learned Friend in need of a lead

Remote hearings – going well are they? As we review Year 01 AC (after Covid) it is safe to say that pleading remotely has been a bag of laughs for the watching public but has tested the patience of the more traditionally-minded. Or as Sophie Kemp, a solicitor in the debt recovery team at Clarke Willmott puts it (rather kindly, we think) it has led to some “innocent mishaps” as well as “over-confidence” among participants.

Such as? “We have heard of cases where an advocate was putting questions to a witness, and she could hear what she thought was a car indicator. She asked the witness if they were driving whilst trying to give evidence. The witness confirmed they were driving to a supermarket and thought it was reasonable to be able to drive and give evidence at the same time.”

Meanwhile we’ve heard of a case proceeding by way of video hearing where a party was addressing a Judge as ‘my flower’ and ‘petal’ and continued to do so despite being warned. 

“The challenges of remote hearings are not confined to the witnesses. In the middle of a video hearing, an advocate’s child burst into the room singing at the top of their voice. This is a situation that most will be sympathetic of nowadays and all parties, including the judge, luckily found it amusing and were swiftly able to continue the hearing once the rendition was over.

“But it is not all light-hearted and innocent mishaps. In one case a party took offence at being cross-examined and became rude and abusive to the opposing advocate and the judge, continuing to shout at them. The judge raised this as an issue and even took a five-minute recess so that the party’s advocate could telephone him to ask him to calm down.”

A new etiquette is now needed urgently for remote justice to retain its dignity.”It is clear that all parties, including judges, are still getting used to remote hearings and the reality of how they proceed,” says Kemp. “It will be interesting to see if this develops into a common trend or whether there may be further, more rigid and enforceable rules brought in for attending remote hearings.”

The Never Ending Story of an Undelivered ‘Sorry’ card from the Post Office

What would the Queen say?

Two decades have passed yet the war of persecution by the Post Office against its Sub-Postmasters has still not ended. Here’s the position:

Next week, the Court of Appeal will hear 41 appeals of sub-postmasters who were convicted of theft, fraud or false accounting where data from the defective Horizon system was at the heart of the prosecution case. In nearly all the cases, the Post Office is not contesting the appeals because it accepts that evidence in the original private prosecution was incomplete and that the Horizon system’s faults were not disclosed to judges and juries. But the Post Office has denied, in most cases, that it was wrong to have prosecuted in the first place, which means it is far from clear today that the Post Office fully exonerates most of the appellants from wrongdoing.”

Read more of this brilliant account of how this dreadful saga has driven innocent people to suicide and penury in Tony Collins’ authoritative article ‘The Post Office goes into the 21st year of IT-related disputes with a fresh dispute’ to be found at https://ukcampaign4change.com/2021/03/18/the-post-office-goes-into-the-21st-year-of-it-related-disputes-with-a-fresh-dispute/amp/

It will leave a sour taste on the tongue the next time you lick a stamp.

CONTRIBUTED ARTICLES OF THE WEEK

ACTION AGAINST ILLEGAL ENCAMPMENTS

The proposed new laws do not go far enough to protect the countryside suggests Wayne Beglan

Wayne Beglan

On 9 March 2021 the Secretary of State introduced the Police, Crime, Sentencing and Courts Bill 2021. Part 4, containing clauses 61-63, deals with unauthorised encampments, criminalising them in certain circumstances. By inserting new sections into CJPOA 1994 the clauses will expand the current powers available to Police (see s.61) and Local Planning Authorities to address unauthorised encampments occurring on private land without consent.

Caselaw has demonstrated that the current powers can take considerable time and expense to implement. A recent example is provided by Anderson v. Basildon [2021] EWCA Civ 363 which illustrates the difficulties that can arise even where a local authority acts with utmost expedition once works have commenced. There are examples of similar delays even involving private land, where the local authority may be reluctant to act requiring the landowner to incur significant legal costs.

However, as drafted, it is not clear that the Bill will in practice provide the extended protection for landowners and occupiers of land which the Bill seeks to provide. First, the offence only comes into being after a request to leave has been made and failure to comply “as soon as reasonably practicable”. Reasonably practicable may embrace a number of issues including alternative sites, interests of the children, health and age. Second, the offence only applies to those residing or intending to reside on the land. What amounts to residence, rather than say occupation, presence or control, is yet to be decided in this context. Third, s.60C(4) as proposed sets out four conditions at least one of which must be met. Residence on land without “significant” damage or disruption, or “significant” distress caused by offensive conduct, will not trigger the offence. Peaceable occupation will not be an offence. Fourth, it is a statutory defence to demonstrate a “reasonable excuse” for a failure to leave “as soon as reasonably practicable”, where the same issues as mentioned above may again come into play. Fifth, due to the above, prosecution nearly always rely upon landowner evidence. Individuals may be wary of providing such evidence. The Bill requires substantial amendment to achieve its desired purposes.

Wayne Beglan is a barrister at Cornerstone Barristers

UBER RULING: THIS IS JUST THE START, says Kate Hindmarch

The momentous move that Uber has made in granting its workers access to basic worker rights will be a real turning point for the nearly five million UK workers that are engaged in the ‘gig economy’.

 One of Uber’s leading arguments suggested that its self-employed contracts offered workers more freedom and flexibility in their work life. The Supreme Court, however, noted that in reality Uber drivers actually had limited control over a large amount of their employment agreement, including not having the ability to set their own price. The claims of freedom and flexibility echo a large proportion of contracts within the gig economy that will now fall under the scrutiny of the law. 

There’s no doubt that other major businesses within the gig economy will be placing aside funds to be able to cover minimum wage, pension contributions and holiday pay for their workers. The employment tribunal decision that went on to be confirmed by the Supreme Court has shone a spotlight on the practice of creating legally vague arrangements in order to avoid the ‘workers’ classification and in turn avoid liability to these workers.

“Questions have been raised globally over the role of the gig economy, and the extent to which these workers should be afforded the limited rights that employees enjoy. While the UK Supreme Court ruled in favour of protecting gig economy workers, within the US, Uber, along with other gig economy businesses, successfully convinced voters to back Proposition 22, protecting them from being liable to California state employment law.

Although companies such as Uber continue to use these self-employment tactics in a range of countries, the Supreme Court ruling will likely cause a global ripple effect resulting in an increase in legal cases being brought against Uber and others across the world.”

Kate Hindmarch is a partner in Employment Law at Langleys Solicitors

OTHER COMMENTS ON THE UBER JUDGMENT INCLUDE

Philip Richardson, partner and head of employment law at Stephensons

This decision by Uber is an important and very welcome milestone, not only for their 70,000 employees, but also for the gig economy as a whole. The judgment of the Supreme Court last month not only forced the hand of Uber but should also act as a wake-up call for many other companies that still use this employment model.”

Fairwork Researcher, Oxford Internet Institute, University of Oxford

The Supreme Court ruling said Uber drivers were entitled to worker entitlements from the time they log in to the time they log off. Uber, however, is committing to these entitlements only from the time the trip is accepted till drop-off. However, similar to how restaurants don’t only pay waiters for the time they are serving tables, ride-share drivers deserve to be paid for the time they spend between rides. Uber’s business model inherently relies on having a large pool of workers waiting to pick up passengers. Many drivers’ waiting times have become even longer during the pandemic, due to the drop in demand, directly affecting their income.

“ Uber’s new policy fails to comply with our principle of Fair Pay which states that workers should earn at least a minimum wage after taking account of (1) work-related costs and (2) active hours, which includes both direct and indirect hours of work. Uber’s decision includes the former but not the latter, in contravention with the UK Supreme Court’s judgment. Furthermore, their statement does not provide an indication of how ‘vehicle running costs’ will be calculated for each driver, and whether workers or unions will have a say in this calculation. Uber’s statement is also silent on many other aspects that affect workers’ livelihoods, including a due process for disciplinary decisions, which has been a long-standing demand of gig workers in the UK. There is also no mention of sick pay, protection against discrimination and other basic rights that drivers should be entitled to as workers.

The tide might very well be turning against unfair practices, but at Fairwork we believe there is still a lot more work to be done with platforms, unions, workers, and policy-makers to ensure that the demands of workers are heard, and that gig work becomes synonymous, at last, with fair work.”

VACCINE PASSPORTS NEED THE STAMP OF RELIABILITY,

says Eduardo Ustaran

The right privacy practices can make a significant contribution to the lawful and ethical roll out of vaccine passports by both governments and businesses. Well-accepted principles, like transparency, purpose limitation and data minimisation can guide this deployment and practical tools like privacy impact assessments will ensure that we achieve the best of all possible worlds. Governments and healthcare providers have a responsibility to ensure that only the right amount and type of data is made available, while access to such data by businesses must be limited to what is necessary to verify that someone has been vaccinated.

One of the great legislative data protection novelties introduced by the EU General Data Protection Regulation (GDPR) was the idea of deploying measures by design and by default aimed at ensuring that only the personal data that is truly necessary for a given purpose is collected and used. This is key to the way in which vaccine passports should be designed by those working on any kind of digital certificate.

The design and deployment of vaccine passports must also take into account the likely attempts to deceive the system. Ensuring the reliability of the information embedded in vaccine passports will not just be a matter of cybersecurity but a pillar for public health.

Business in industries ranging from travel and hospitality to sporting events relying on a system of vaccine passports or certificates will have a vital role to play in making sure that such tools serve a beneficial purpose for society as a whole. In the same way that privacy impact assessments are a cornerstone of data-related innovation, any business seeking to rely on vaccine passports should undertake an impact assessment that identifies and mitigates any potential discrimination risks.

There is still much to be learnt and debated about the future of vaccine passports, but data protection can make a significant contribution to their lawful and ethical roll out. The experience of the past year shows that data protection does not get in the way of solving practical problems like fighting the pandemic and helping us overcome it, but it is important to do that within the applicable legal framework around privacy and cybersecurity.

Eduardo Ustaran is Co-Head of the Global Privacy and Cybersecurity practice at Hogan Lovells 

APPOINTMENTS OF THE WEEK

LUCY ENGLAND TO FOX WILLIAMS

Lucy England has moved as a partner to the commercial and technology group at Fox Williams.

Lucy brings extensive experience of the aviation and travel industries and understanding of the impact of technology from Bird & Bird where she was a partner in its commercial group and was travel group lead. Recently she has been advising businesses in those markets on the serious impact of the Covid pandemic.

“The travel and aviation sectors faced dramatic change before the advent of the Covid pandemic driven by new and exciting technologies,” she says. “Covid has accelerated this change with travel businesses looking forward to a substantial post-pandemic bounce.”

Rhys Griffiths, partner and head of the travel group at Fox Williams commented, “Lucy’s appointment enables us to further build our reputation as the ‘go to’ firm for the travel and aviation industry.”

DANIEL MARTIN TO JMW SOLICITORS

Daniel Martin has been recruited as a partner by JMW Solicitors LLP to join its financial and business crime, regulatory investigations and serious general crime team. Martin joins from Blaser Mills Law where he gained considerable experience in cases involving serious and organised crime, often with an international element. He specialises in corporate and financial crime, working on cases involving high value and complex fraud. He also advises corporates on internal investigations and bringing private prosecutions in the criminal courts and has significant experience in defending asset recovery and confiscation proceedings under the Proceeds of Crime Act (POCA).  He advises corporate clients on regulatory compliance with UK financial crime law, including the AML/CTF regime, and is a specialist Solicitor-Advocate, regularly representing clients in the Crown Court. He is ranked as a ‘Next Generation Partner’ in the Legal 500.

SOPHIE ASHCROFT TO BROWNE JACOBSON

Sophie Ashcroft has joinedBrowne Jacobson in its London office as a specialist commercial tech disputes partner. She was formerly at Clyde & Co. having had over 10 years’ experience acting on significant international and domestic disputes for a client base that comprised large corporates, government bodies, entrepreneurs and SMEs. She has particular expertise in handling complex disputes arising out of IT and outsourcing projects,

“Sophie’s wealth of expertise in complex tech disputes will be a real asset to our current offering and will allow us to further build on our credentials with our target markets. She will be a real boost for our growing practice.” said Declan Cushley, partner and head of IP and commercial group at Browne Jacobson whichadvises on large scale, business critical IT projects, international patent litigation cases and complex, multi-jurisdictional data protection and privacy issues.

PROFESSOR ROBERT SHUTZE TO CORNERSTONE BARRISTERS

Professor Robert Schütze, a constitutional scholar with a particular expertise in the law of the European Union and comparative federalism, has joined Cornerstone Barristers as an Associate Member.

 Schütze is Professor of European and Comparative Law at Durham University and Luiss (Rome) and the Co-Director of the Durham Global Policy Institute.  He was called to the Bar in 2020.

He is a permanent Visiting Professor at the College of Europe (Bruges); and in the past, he has been a Visiting Professor or Fellow at the British Institute of International and Comparative Law (London), the Centre for European Legal Studies (Cambridge), the Institute of European and Comparative Law (Oxford) and the Max-Planck Institute for Comparative Public Law and International Law (Heidelberg). He has been a Fulbright-Schuman Fellow at the Centre for European Studies at Harvard University and a Braudel Senior Fellow at the European University Institute. He is the author of numerous publications including European Union Law and An Introduction to European Law (both with Oxford University Press).

LEGAL WEBINARS, BLOGS and other E-VENTS

COLLYER BRISTOW The Valuation of ArtThe latest podcast in our series ‘The Fine Art of Probate’ 
We are delighted to share the second episode in our new podcast series, The Fine Art of Probate, from Collyer Bristow’s Private Wealth team. In this series, a selection of Collyer Bristow lawyers are joined by special guests from the world of Art and Culture, to discuss a wide variety of topics relating to probate in English law. In this latest episode, Private Wealth Partner, James Cook, is joined by Harvey Cammell, Deputy Chairman of Bonhams UK and Global Director of Valuations, Trusts and Estates. Together they discuss the process of valuation in relation to probate.

 


Listen to the podcast

Running time: 30 mins Remember to subscribe to the series via Spotify or Apple to keep up to date with the latest episode. For more information on probate matters, please contact James Cook:James Cook

Partner, Private Wealth
+44 7947 532159james.cook@collyerbristow.com

ThoughtLeaders4 PrivateClient: Sudden Incapacity: Legal implications under the prevalence of Covid’ webinar on 23 March 2021.

The informative and timely discussion will centre around issues of incapacity whilst determining the best interests of patients in the midst of a very challenging 12 months and it falls on the same day as the national day of reflection which will see a minute’s silence at 12 noon.  Chaired by Sarah Williams, Payne Hicks Beach, experts will talk from all perspectives looking at processes, challenges and the emerging role of ICU mediation.

The panel line-up chaired by Sarah Williams is:

Jennifer Lee of Pump Court Chambers; Dr Chris Danbury, Consultant, Intensive Care Physician and mediator; Jessica Henson of Payne Hicks Beach and Michael Mylonas QC of Serjeant’s Inn Chambers. 

Issues that will be covered will include:

– The definition of incapacity and determining best interests of the patient

– Trusted advisors of the patient and next of kin

– Disputes with the clinical team and how to navigate it

– The role of ICU mediation and the pathways to agreement and resolution in the Court of Protection

– The legal implications if live legal proceedings (or legal decisions e.g with trusts) involve the incapacitous individual

 For more  Event Page link (http://bit.ly/30Tp5Th)

We very much hope that you have enjoyed this first anniversary edition but look forward even more to producing next week’s output so please send your news, views, insights and comments to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday 12 March 2021 Edition 49

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

SHORT THOUGHT FOR THE WEEK

HOLD THE FRONT PAGE (Sorry, we’ve had to delete it)

You may be bored to the back teeth by the Sussexit controversy but its ramifications are likely to be with us for a long time. The end of the monarchy, the collapse of the Commonwealth and the resurrection of Piers Morgan might all lie ahead. But what is already clear is that the tabloid press is going to have to be a tad more circumspect in how it handles celebrity stories following the instruction to The Mail to give the Duchess of Sussex a front page apology.

As Steven Heffer, Head of Media and Privacy at Collyer Bristow LLP, has commented, “Front page apologies are a very rare thing. In this case the Judge has ordered notice of his decision to be published on the front page, but it follows on from the Judge’s finding of breach of copyright and misuse of very private information. The case was so strong that a trial was not necessary on the main issues and summary judgment was given. The Duchess has won hands down. I see little prospect of appeal doing anything but increasing the already enormous costs.”

The Duchess might have won ‘Hands Down’ but for other people it’s now ‘Hands Up’ time.

“This is a hard and costly lesson for the Mail,” continued Heffer. “It appears that there are only side issues left to be decided, such as whether there was any joint authorship of the letter to her father.”

Mind you, regarding ‘misuse of very private information’, one wonders whether that might cover some of the revelations from Monday’s broadcast.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– STOP PRESS – THIS MORNING ON MYANMAR

No Fraudulent Statement at PCB Byrne

– Pity the Poor Lawyer

– Family Funding

– Pet Grievance

– Security Check

+ LEGAL PRACTICE ISSUE OF THE WEEK

How life platforms are helping probate specialists

+ LEGAL ISSUE OF THE WEEK

Should the Silentnight anti-avoidance case settlement be a concern to lenders?

+ APPOINTMENTS OF THE WEEK

THE LEGAL DIARY OF THE WEEK

STOP PRESS – THIS MORNING FOR MYANMAR

The Republic of the Union of Myanmar has publicly announced that it has instructed Volterra Fietta to advise on and pursue international legal proceedings against the illegitimate military regime that is responsible for the violent armed aggression directed against the people of Myanmar and their legitimate democratic representatives.” 

As announced by what is said to be Myanmar’s sole legitimate representative, the Committee Representing Pyidaungsu Hluttaw (the “CRPH”), Volterra Fietta will support Myanmar to hold to account the perpetrators of these flagrant international laws violations before all relevant fora.

The CRPH’s recent announcement stated: “[…] Myanmar, through the CRPH, has formally engaged the leading public international law firm Volterra Fietta to advise on and pursue international legal proceedings against the unconstitutional and illegitimate military regime responsible for the violent armed aggression directed against the people of Myanmar and their legitimate democratic representatives from 1 February 2021.  Such international law proceedings will take time but we will pursue them vigorously and steadfastly, so as to hold to account the perpetrators of these widespread and systematic human rights violations, including soldiers, police and common criminals.  We are gathering large volumes of evidence for use in such proceedings.  Myanmar’s legal team is led by Robert Volterra, one of the world’s most respected public international law specialists, and Álvaro Nistal, who has advised numerous States and victims in relation to human rights violations.  Volterra Fietta will support Myanmar’s efforts using the largest team of public international law experts in any firm in the world.  They advise and represent States from every continent, in proceedings before the International Court of Justice, the International Criminal Court and other international courts and tribunals.

NOTE: Volterra Fietta’s founding partner is Robert Volterra, first and only non-UK barrister on the UK Attorney General public international law panel A-list, Visiting Professor of International Law at UCL and Visiting Senior Lecturer at King’s College, London, and who has helped draft the founding treaties of a number of international bodies.

No Fraudulent Statement

For once the PR statement this morning about the creation of a new firm via a merger was not overhyped.Byrne and Partners and PCB Litigation have today announced that they will be merging on 1 April 2021, bringing together two like-minded, dynamic market leaders in fraud litigation to form a new top-tier firm specialising in all forms of dispute resolution – PCB Byrne.

It’s true. The LegalDiarist has known both firms for many years and has always been impressed by their quality. Plus, as the statement went on to say,The firm is also scaling up its work across Asia, the Middle East, Russia and the CIS, enhancing the firm’s presence in these key markets.” This all makes good sense. PCB Byrne should do very well. Mind you a big credit must go to Steven Philippsohn, now with Asserson, who was the original brain behind PCB. At times like these it’s important to remember the debt owed by today’s partners to yesterday’s founders.

Pity the Poor Lawyer

What’s wrong with our stingy UK corporates? Why do they only spend half of what their American cousins do on legal advice? Don’t they realise that London law firm partners have increasingly expensive second homes, school fees and (now impending) Caribbean holidays to pay for?

Apparently not. According to the latest research from Thomson Reuters in its ‘ 2021 State of Corporate Law Departments’ report.UK corporates last year spent just 0.18% of their annual revenue on in-house and external legal services. By contrast US corporates wrote cheques amounting to 0.32% of revenue. (Mind you, across the Channel they were even meaner than the Brits.German companies spent just 0.13% while the French, predictably, came in with just 0.11% – no doubt with President Macron arguing that legal advice doesn’t work for the over-65s).

The irony of this is that lawyers are working harder than ever with the report showing that 58% of corporate law departments experienced a surge in workload as a result of the pandemic. Yet only 6% experienced an increase in their total legal budget to deal with this influx of work and 29% said that their budget had been cut. Moreover those cuts are likely to be exacerbated by big drops in corporate turn-over as the virus continues to bite into the respective economies.

But there is going to be no drop off in work load. In fact judged purely on volume of work lawyers are facing a boom due to the disputes which are predicted to surface as Covid levels gradually drop. How to pay for all this, however, will be the big question. So squaring that vicious circle is going to have to rely on technology. Around 30% of law departments globally are increasing their spend on technology, compared with only 11% decreasing spend. Meanwhile 44% of departments are increasing their use of technology tools compared with just 2% decreasing. As with most of our other problems the answer needs to be technical.

Family Funding

Third party funding is now well-established for corporates but at the family level it is still in its infancy (or barely that). That is why Ampla Finance has just launched what they claim is a ‘first’ in publishing a guide to legal funding for family solicitors.

We’re pleased to provide what we are sure will be a useful tool for family lawyers and their compliance teams,” said author of the report, Nigel Shepherd.I know from my many years as a practitioner that when it comes to discussing the funding options with clients it can be difficult to provide the information and help clients’ needs, whilst at the same time remaining in step with regulatory obligations. This guidance flags up the key issues and through practical examples helps practitioners to develop a consistent and client-focused approach.

Whilst the volume of guidance around litigation funding at consumer level is significant, this seems not to be the case with ‘profession-facing’ advice.. “As such, we believe there is a real gap in the market for clear advice for lawyers, which we hope to fill with this guidance,” said Louise Hall, Ampla’s Commercial Director

The guide will be made available to all family law practitioners and their compliance teams while more detailed advice from barrister Mr Popplewell at Gough Square Chambers will be provided to Ampla Finance partner firms.

To download a copy of the guide, click here.

Pet Grievance

Why not let the dog decide?

Now here’s a perfect storm brewing. During the C-crisis lots more people have bought pets (you can see them walking them in the park every day). But the chances are that because of the C-crisis there’s also going to be a lot more domestic break-ups a soon as the lockdown comes off (and people can get to see their lawyers). So what happens to those pets?

This is the problem exercising Hannah Gumbrill-Ward, Solicitor, Winckworth Sherwood. “Can you get a custody agreement to regulate the time you and your ex each get to spend with your pet?” she asks. “And is there anything you can do to protect yourself against a dispute about your pet? No matter how much you consider that your pet is like a child, unfortunately its welfare needs are unlikely to be taken into consideration and there is no court-ordered pet equivalent of a child arrangements order, the English version of a child custody agreement.”

So this is a genuine problem. “Research undertaken by a pet insurance provider in 2019 found that 25% of divorce cases between 2018 and 2019 involved issues around the family pet. With pet ownership having sky-rocketed during the pandemic, it is logical to assume that pet issues will only become more prevalent within divorce and financial proceedings going forward. With 88% of people saying they would prioritise their pet over access to their ex’s pension funds, perhaps it is time to revisit the legal status of pets?”

The answer is seems is a pet pre-nup. “There has been a 24% increase in the number of requests family lawyers are receiving to draw up ‘pet nups’ for their animal loving clients. It is not just lawyers who would encourage couples to give as much thought to the protection of their pets as they would their other assets. The charity Blue Cross has created a downloadable pet nup to help couples plan for their pets’ futures and hopefully prevent the number of pets given to re-homing centres.”

‘Woof, woof!’ Or maybe ‘Miaoh!” [You take one, I’ll take the other? Sorry, just started a cat fight]

Security Check

Not what they claim to be?

This Legal Diary is the antidote to celebrity gossip but if you need to wean yourself off an unhealthy diet of Sussexiting then a good dose of Dechert’s 2020 Developments in U.S. Securities Fraud Class Actions Against Non-U.S. Issuers will see you right.

It certainly makes sobering reading. During the global pandemic it has become clear that a listed company does not need to be based in the U.S. to face potential securities class action liability in the U.S. courts. Indeed, maybe because of the pandemic the majority of the suits are linked to the biotechnology and medical equipment fields with a significant number based on allegations relating to the non-U.S. issuer’s approval by or compliance with U.S. regulatory agencies.

In particular several of the lawsuits alleged that defendants misrepresented their prospects of approval by the FDA. In Kevin Alperstein, et al. v. Sona Nanotech Inc. the plaintiffs alleged that the defendant, a Canadian medical supplier, made positive press statements about its COVID-19 rapid detection antigen test, which proved to be unfounded. So the key piece of advice offered by Dechert to non-U.S. issuers is that they should be particularly carefully when making disclosures or statements to ‘speak truthfully’. Who would have guessed?

Book of Knowledge

And finally, when you seriously need distraction, reach for a copy of MAKING KNOWLEDGE WORK, a fascinating report from consultancy iManage on trends in knowledge management. Lawyers are very much part of this story but the report is excellent for stimulating thought for the future.“Really understanding how to make knowledge work achieve its highest and best use within organisations is a perspective shift that goes beyond enabling simple knowledge management. It requires putting into place an ecosystem for knowledge activation,” said Neil Araujo, CEO iManage.  “Organisations must have a breadth of capabilities at work that include collaboration, secure storage and retrieval, ability to work from anywhere, and capacity to curate and repurpose institutional knowledge – all delivered though a high-performance, reliable cloud service.  This empowers knowledge workers to create opportunities for unencumbered thinking, higher level productivity, and creativity that drives innovation and spurs new business opportunities.” Wow! Impressive stuff. ‘Unencumbered thinking’ is probably something we all need now.

MAKING KNOWLEDGE WORK is available to download here.

LEGAL PRACTICE ISSUE OF THE WEEK

How ‘life platforms’ are helping probate specialists.

Probate specialists often face difficulties when trying to find financial accounts tied to an estate. With a lack of hard copy, heightened account security and an excess of finance providers, it’s becoming increasingly difficult to track client’s assets. Is there an answer?

Ian Dibb, the founder of life planning platform, Once I’ve Gone believes that there is

One of the biggest struggles for probate specialists is retrieving and compiling information tied to a client’s estate after he or she has died. In fact, professionals report that in the past year, they struggled or even failed to locate a client’s assets in nearly a quarter of their cases. This is largely due to the increase in online banking meaning fewer physical cards and the introduction of facial or fingerprint recognition.

We need to be keeping up with these developments and finding innovative ways to ensure assets aren’t lost. One way to mitigate the potential difficulty or even loss of assets would be to encourage clients to utilise tools such as life-planning platforms. This new ‘tech’ encourages users to organise their estate by storing all their information in one place. One such platform is Once I’ve Gone which collates and protects all necessary information in three ways: document storage, messages and final wishes. 

The platform has been a huge success with relieving planning stresses for users, but there has been the same response from probate professionals. The current estimated figure for unclaimed assets in the UK is around £70bn, which is a huge hit for the probate industry. Professionals with an interest in probate have found huge benefits in partnering with platforms such as Once I’ve Gone and have made inroads with improving this figure. 

Dealing with more organised client estates would be a step in the right direction. Having all the policies, accounts and other assets in one place, and upfront, streamlines the process and allows specialists to do their job more thoroughly. It enables them to provide a quicker service, whilst also taking the stress off the grieving families’ shoulders. The hope is that these platforms offer a viable solution to this growing problem that probate specialists are facing. By encouraging clients to keep their estates organised and offering the tools to do so, there are huge benefits for both the industry and customer peace of mind.

LEGAL ISSUE OF THE WEEK

How can they sleep at night?

Should the Silentnight anti-avoidance case settlement be a concern to lenders?

Earlier this month the Pensions Regulator (TPR) agreed a settlement in an anti-avoidance case against the current owners of the bed manufacturer Silentnight.

TPR alleged that HIG Group, a US private equity group, deliberately brought about the unnecessary insolvency of the original Silentnight Group in order to buy its business out of administration but leaving its defined benefit pension scheme behind. HIG has now paid £25 million to the scheme. But what are the wider implications of the case? ask Kate Payne and Danyal Enver of Arc Pensions Law LLP

The Pensions Regulator has issued an ‘s89 intervention report’ in relation to the Silentnight Group Defined Benefit Scheme, detailing the £25 million settlement it has reached with American private equity firm, HIG. It is a case which will make lenders and investors take notice of the Regulator’s powers and consider whether they may be within the scope of enforcement action themselves.

The Regulator had sought to use its “moral hazard” anti-avoidance measures against HIG, accusing it of deliberately putting Silentnight (the scheme employer) into an “unnecessary insolvency”. It claimed HIG used the control it had available via lending facilities to do this. The report states HIG wanted to buy back Silentnight during administration, leaving the scheme behind, without funding and thereby force it to fall into the Pension Protection Fund (PPF).

The Regulator’s case involved expert testimony and forecasts to demonstrate both HIG’s control and also Silentnight’s likely post 2010 performance in the event that HIG had not had that control. Through this it aimed to show that Silentnight could and would have refinanced, continued to trade profitably and funded the scheme, but for HIG’s involvement.

The settlement amount is not enough to keep the scheme from entering the PPF (even with an additional £10m recovered for the scheme from the insolvency process). While this shows the Regulator may negotiate settlements to achieve certainty for scheme members, it is primarily an example of the Regulator showing its teeth against several “well resourced” targets including successfully defending a judicial review.

The Regulator may continue to take this wider view of who could be a target of its powers as it looked to extend the concept of who is ‘connected and associated’ – and this could be a matter of concern to lenders. It could also be a taste of things to come now that it has wider powers under the Pension Schemes Act 2021.

Kate Payne is a Partner and Danyal Enver an Associate with Arc Pensions Law LLP

LEGAL APPOINTMENTS OF THE WEEK

CHARLOTTE SYMES and MARIKO WILSON appointed Directors at Family Law in Partnership

Family Law in Partnership (“FliP”), the central London, multi-professional specialist family law practice, has announced that Charlotte Symes and Mariko Wilson have been appointed as directors of FLiP with effect from 1 April 2021. Charlotte and Mariko were previously Senior Associates at FLiP.

Charlotte Symes

Charlotte Symes deals with complex financial issues arising from divorce and separation including those relating to businesses, investments, tax and pensions. Her work has a strong international dimension, with a particular focus on French matters as she is a fluent French speaker. She is a trained mediator and collaborative practitioner, drawing on these skills to deliver a variety of process options for her clients.

Charlotte is recommended in The Legal 500 UK 2021 and was named as a Rising Star in The Spear’s 500 Index of leading family lawyers.

Mariko Wilson

Mariko Wilson handles all aspects of private family law and has a broad range of experience, frequently acting for high-net-worth individuals in financial relief and divorce proceedings as well as acting in children matters. She has a particular expertise in cases involving complex pensions and tax issues. She has recently been appointed to the Pensions Tax and Financial Remedies Committee of Resolution and has been named as a Rising Star in The Spear’s 500 Index of leading family lawyers and in The Legal 500 UK 2021.

See more at website at www.flip.co.uk

WEBINARS, BLOGS AND THE REST OF THE WEEK


BRITISH-SWISS CHAMBER OF COMMERCE
Shadow IT: A Silent Enemy at the Gates

HOW TO PREVENT UNINTENDED CONSEQUENCES
The Zurich Chapter in collaboration with HewardMills would like to invite you to a 60 minutes virtual training event on how to prevent potential serious unintended consequences caused by Shadow IT.

‘Shadow IT’ refers to the apps in the cloud, used or downloaded by employees of an organisation without the knowledge of the IT Department.During the webinar you will receive practical recommendations on how to control Privacy and Security accountability of companies and employees; how to avoid serious compliance infringements due to inadequate software usage policies; which IT behaviours should be controlled and, in case, scrutinised and challenged. The impact of a non-malicious insider threat could be heavy to bear and you should know how to avoid it.

We look forward to seeing you online.For more information on our event and speaker please click HERE. 

SPEAKER Giampiero Nanni | Data Protection & Privacy Consultant

WHEN Tuesday, 13 April 2021
13:00 – 14:00 CET

WHERE Online
REGISTRATION FEEBSCC Members and Guests | Free
Non-members and Guests | 25 CHF REGISTER NOW Please do register early if you would like to join as places are limited.  Kindly hosted by

🎉 





Thank you to our fantastic listeners for over 2000 downloads! Our latest episode, which is out now, looks at an area of the law that often has a big impact on children’s lives, their families & how they grow up.  
We speak to family lawyer Charlotte Bradley about what happens when families split up When parents decide to split up, whether they are married or not, it is often a really difficult time and a very upsetting and confusing situation for children – especially so as adults are usually the ones to help children sort things out. 

In this episode, Alma-Constance asks 
Charlotte Bradley, who is the Head of the Family law team at Kingsley Napley, all about the law when it comes to families splitting up and how the law tries to help children in these situations.
 Charlotte is an experienced lawyer and mediator who has helped many families sort out their problems and campaigned for the voices of children to be heard when family relationships breakdown. 

To listen to her answers to the above questions, click the button below!Listen here

We are aiming to be back next week to celebrate ONE YEAR of Edward Fennell’s LEGAL DIARY.

So please send your stories, comment and insights to

fennell.edward@yahoo.com

to appear in our First Birthday edition

Edward Fennell’s LEGAL DIARY

Friday 5 March 2021 Edition 48

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

SHORT THOUGHT FOR THE WEEK

WHEN’S THE RIGHT TIME TO SAY GOOD-BYE?

Harry and Meghan knew when time was up – why don’t others?
(Courtesy of Sky Spitting Image)

This week’s tale of two lawyers illustrates that the old etiquette of knowing when to resign and when to stand and fight misconduct allegations has completely frayed.

One lawyer is accused of lying, breaking sacred confidences and proceeding against prudent advice. She stays on. Another is caught up in a decade-old complaint which bounces around between various tribunals. He caves in on the grounds that the dispute is becoming a distraction. Where’s the consistency and where’s the consensus in wider society over good governance whether that be by the First Minister of Scotland or the President of the Law Society (or even the head of diversity at Deloitte’s).

Having a top job in any organisation – such as a law firm, in government or in business – increasingly carries with it the risk of accusations of bullying, sexual misbehaviour, discrimination, fraud. No longer is anyone ‘innocent until proved guilty’. Instead it is a matter of how brazen you are to tough it out. This might not be a matter for the law but some consistency on what constitutes ‘doing the right thing’ in these circumstances would be welcome. (But maybe no return to the bottle of whisky and a loaded gun in the library).

The Legaldiarist

In this week’s edition

+ The Legal Diary of the Week

– Old Bangers and Big Bangers at Macfarlane

Barristers on a Budget

Cooley Cashes In

My vaccine or yours?

+ SPECIAL REPORT OF THE WEEK

PRIVATE PROSECUTIONS FUNDING TO BE REFORMED

+ LEGAL ANALYSIS OF THE WEEK

TAKING VAX TO THE MAX

+ APPOINTMENTS OF THE WEEK

+ PODCASTS AND VIRTUAL CONFERENCES

THE LEGAL DIARY OF THE WEEK

Old Bangers or Big Bangers?

That was then – now it’s BIG BANG 2.0

By any standard David Gauke, previously the Lord Chancellor, is a decent man. He took his stand over Brexit and paid the price, ending his political career for the foreseeable future. But with such a track record it is no surprise to see him back at his old firm Macfarlanes as the head of the firm’s Public Policy practice. And it must be said that it is somewhat ironic to see him now fronting up on the firm’s (excellent) new briefing publication on Big Bang 2.0 which explores the potential benefits to the City post-Brexit.

“What might Big Bang 2.0 look like,” the firm asks. “Freed from the constraints of EU membership and EU rules, how might the UK reform financial services regulations to enable the City and the wider sector to flourish in the post-Brexit era?”

The report offers an impressive series of seventeen areas where it would be possible to do things differently. “Our purpose here is not to advocate for or against any particular reforms but to set out the options and the relevant factors in determining whether to proceed with any such reforms,” says Gauke,

And that’s when the document becomes pretty technical. AIFMD? CRD4? PRIIPs? FSCs? Yes, they are all here and the Chancellor (if not the Prime Minister) will no doubt be weighing them up as soon as he’s recovered from his Budget battering. But the Macfarlanes’ analysis is not just vague ‘what-iffery’ – the areas are specific and the pros-and-cons examined with forensic care .If you want real thought leadership this is what it looks like. Go to

Barristers on a Budget

Yes, it’s us again

Along with the care sector the justice system was feeling distinctly ignored following this week’s Budget. With lifebelts being hurled to all and sundry across the economy, carers and barristers have a good claim to feel they are being left (one again) to drown.

“With parts of our justice system facing unprecedented challenges, a 56,000 case backlog in the Crown Court and some victims of crime having to wait until 2023 before they are likely see justice done, it is disappointing to see no extra funding emerging from the Treasury in today’s Budget announcement,” said the Chair of the Bar Council, Derek Sweeting QC. “The Chancellor has turned a blind eye to law and order and settled for stretching last year’s commitments to cover the future survival of our justice system. It’s not enough. Although additional funding for domestic abuse is welcome, access to legal aid for the victims of this crime remains means-tested, denying the many who suffer at the hands of violent abusers living in their owns homes from gaining access to justice. Once again, the Ministry of Justice, the courts and the wider justice system are the poor relations in the Treasury’s priorities.”

The justice system has been in crisis for so long now it feels as if things will never change. But one day it might just pop.

Just What?

Although it clearly escaped the notice of the Chancellor this is JUSTICE WEEK – and today’s the final BIG day. Organised by the Law Society, the Bar Council and CILEX there have been events for the past four days. And today’s theme apparently is ‘The Big Legal Lesson’. We tried to find out more about what this meant via the Law Society website. However as you are aware, the Society has been facing acute difficulties recently – after all it is not quite every week they lose a President – so maybe no surprise that the link did not work. But we are sure it will be marvellous.

Cooley Cashes In

With Gold Standard Certification from the Women in Law Empowerment Forum for nine consecutive years and consistently perfect scores on the Human Rights Campaign Foundation’s Corporate Equality Index, Cooley has a good track record on diversity. But it’s new UK Diversity Fellowship programme offers an intriguingly fresh approach by supporting new entrants to the legal profession to act as catalysts for change within their own communities. Under the scheme ‘outstanding students committed to promoting diversity, equity and inclusion’ are given an award of up to £12,000 to assist with tuition and study expenses. “In addition to being high academic achievers, successful applicants will demonstrate a commitment to promoting diversity, equity and inclusion in their local communities or elsewhere,” says the firm.

This bottom-up approach has already been tried and tested in the USA explains Claire Temple, Cooley’s London office training principal. “Our programme in the US has been extremely successful, and we have a vibrant Diversity Fellowship alumni group. We look forward to replicating this track record in the UK and to working with Cooley’s next generation.”

My vaccine or yours?

Pfizer or AstraZenica?

Given that right now the names ‘AstraZenica’ and ‘Pfizer’ rank only marginally less significant in our lives than ‘Harry’ and ‘Meghan’ we decided to stroll back through the archives to Spring 2014 when a take-over of AstraZenica by its US rival was a hot legal issue. Anthony Woolich of Holman Fenwick Willan was quoted in The Times as saying, ”Attempted take-overs of this kind are governed by EU Regulations, meaning that it falls under the exclusive jurisdiction of the European Commission.”

Very quickly the matter had become quite a political football. “As usual the politicians have plunged in, talking about things they don’t understand,” sighed Edward Craft of Wedlake Bell. Nonetheless the absence of influence of the UK government in the matter was one of the factors which fed into the Brexit debate.

Naturally the question arises that if the takeover of the Anglo-Swedish business by the American giant had gone ahead would we now have have one vaccine or two? Would it be stored in a domestic fridge or a deep freeze? And would President Macron have sneered that it did not work.? Ah, one of the many great ‘What ifs’ of history.

Go Whistle for it

A new report, Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation has been published bythe International Bar Association(IBA) Legal Policy & Research Unit(LPRU) and Government Accountability Project,which tracks the records of whistleblower laws in 38 countries. Depressingly it provides an unprecedented source for understanding the successes and, more significantly, shortcomings of whistleblower protection legislation worldwide.

‘We found that in most jurisdictions the laws are underused,” said Samantha Feinstein, Government Accountability Project Staff Attorney and Deputy Director of the International Program. “Where there have been cases, whistleblowers experience a poor success rate. In the few instances where they do succeed, whistleblowers are typically awarded meagre compensation. On this basis we make a number of recommendations for legislators and regulators, including greater transparency and ongoing review of these laws. Governments should prioritise public education to address underlying cultural stigma and ensure those who speak up know their rights.’”

Click here to download a PDF of Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation
www.ibanet.org/Document/Default.aspx?DocumentUid=49c9b08d-4328-4797-a2f7-1e0a71d0da55

SPECIAL REPORT OF THE WEEK

PRIVATE PROSECUTIONS FUNDING TO BE REFORMED FOLLOWING THE FLAWED POST OFFICE CASES

At long last some good is starting to emerge from the scandalous way in which the Post Office erroneously pursued its own Sub-Postmasters on charges of fraud. The real fault, as we now fully understand, lay with its own botched computer system. 

Following an inquiry prompted by the controversial private prosecutions the Government has agreed this week to change the rules on the payment of lawyers’ fees in some criminal trials so that defence and prosecution are on an equal footing,“The current rules are unfair and favour the prosecution over the defence,” said the House of Commons Justice Committee.

 The Committee’s report  Private prosecutions: safeguards was published in the Autumn last year and the Government’s response, announced yesterday, was overwhelmingly positive in tone. Chair of the Justice Committee, Sir Bob Neill, said,  “I am delighted that the Government has decided to support one of our recommendations and, crucially, has given a commitment to legislate. 

 Our inquiry found that the present arrangements for funding private prosecutions are unfair. Currently, a private prosecutor can recover all their costs from public funds even if the defendant is acquitted. This gives an unfair incentive to the prosecution because, by contrast, an acquitted defendant can only recover costs capped at legal aid rates. The Government’s response commits to legislate to ensure that the legal aid cap also applies to private prosecutors. This is a welcome levelling of the playing field”.  

 The Post Office case also exposed troubling features regarding private prosecutions generally. As the Justice Committee report pointed out, there appeared to be a lack of oversight from the authorities over the growing number of private prosecutions currently taking place. In the Post Office case, for example, it seemed that the only institution aware of the very large number of cases being brought by the Post Office was the Post Office itself.  

 The Justice Committee report therefore recommended that HM Court and Tribunals Service should establish a central register to keep track of all private prosecutions in England and Wales.“The lack of internal or external oversight of the Post Office’s approach to prosecutions is an issue which speaks to a broader concern,” said the report. “Examples of prosecutions brought by the Post Office and the RSPCA suggest that it is not sufficient to rely on the courts alone to identify and remedy problematic prosecutorial practices.”  

 The Government agreed with the Committee that such a register would go some way towards correcting the oversight issue and added that one would be established by the end of this year.  

This long and sorry saga – which resulted in premature deaths, suicides and financial devastation among those affected – is not quite over. But at last the gaps and unfairness in the system are being addressed.

LEGAL ANALYSIS OF THE WEEK

TAKING VAX TO THE MAX

How far can employers demand it? asks Mini Setty

Mini Setty of Langleys

‘No jab, no job’ could be a dangerous approach for employers to take. There is not enough evidence to suggest taking the vaccine makes everyone’s working environment safe. If an employer tries to force their employees to receive the jab or decides not to hire someone based on their refusal to get the jab, it could be result in employment claims, for unfair dismissal and/or discrimination.

However, in circumstances where a person is working in the healthcare sector, or with vulnerable children and adults, and refuses to get the vaccine, there may well be more validity to the request by the employer for vaccinations. Fortunately, there is already a legal framework that sets out what employers can and can’t do in the name of health and safety at work, but as things stand, there is not legal right for an employer to demand its employee is vaccinated.

Vaccinations create a conflict of legal protections, where the freedom of individual choice is weighed against the health and safety of others. Some employees may have a justifiable reason for not wanting to take the vaccine, and we would always urge employers to discuss an employee’s reluctance, whether it be related to a disability or religious reasons.

Additionally, in all cases, every other option would need to be exhausted before dismissal was to be considered. For example, they could ask an employee if they can work from home, or to consider switching to a role that would mean they are coming into contact with fewer people in order to effectively safeguard against the potential risk.

If no solution can be found, there could be serious ramifications for the employers if they dismissed or refused jobs. It is likely that we will see a significant increase in cases brought before the employment tribunal to decide the rights of employers vs employees.”

Mini Setty is a Partner in Employment Law at Langleys Solicitors

APPOINTMENTS OF THE WEEK

Lincoln Tsang

Ropes & Gray has appointed Dr Lincoln Tsang as a partner and head of its European Life Sciences practice, based in London.

Qualified in law, medical and pharmaceutical science Dr Tsang is a former senior UK regulator and advisor to numerous EU and global governmental authorities. He specialises in advising clients on UK, EU and cross-border regulatory compliance and enforcement, including litigation, internal investigations and public policy matters concerning the life sciences industry. “Dr Tsang’s  arrival supports our strategy of becoming London’s pre-eminent international law firm for private capital clients – many of whom are actively investing in the life sciences industry – alongside advising some of the world’s leading healthcare companies,” said Will Rosen, managing partner of Ropes & Gray’s London office.

Anne Frances Cooney

Ann Frances Cooney has joined DWF as a Partner in its employment practice in Glasgow. Formerly with Addleshaw Goddard where she was a Legal Director and head of the Glasgow employment team, Cooney has extensive experience including advising on industrial relations & strike action, handling Board and C-Suite severance negotiations & settlement agreements, international mobility, discrimination and ill health management.

“I am delighted that Ann Frances is joining DWF to lead our employment practice in Scotland,” said Joanne Frew, UK head of employment at DWF. “Her experience and reputation in the market aligns with our business’ deep pedigree in supporting clients though a huge range of employment matters.”

PODCAST OF THE WEEK

Interview with Lord Neuberger

The latest Kids Law Podcast from the Next 100 Years featuring Lord Neuberger, former president of the Supreme Court and member of the House of Lords, is now available.

In this episode Lord Neuberger answering questions on what justice means, why it is important and the chaos that would ensue without it. He explains the role of parliament, civil servants and judges in making laws and why he believes children don’t learn enough about the how the country is run and should be taught more about law and justice at school.

To listen go to the following link: https://www.buzzsprout.com/1577473/8045640

BRITISH-SWISS CHAMBER OF COMMERCE

The Future of British-Swiss Financial Sector Collaboration
WHAT NOW FOR EUROPE’S TWO LARGEST FINANCIAL CENTRES?
This BSCC event will take a look at the UK-Swiss relationship in financial services and the future potential for both countries following the signing of the joint statement by Chancellor Rishi Sunak and Federal Councillor Ueli Maurer on deepening relations in the financial sector. This set out the aim of liberalising and expanding mutual market access in the areas of banking, asset management, insurance and market infrastructure.  At a video-conference on 27 January 2021, the two ministers agreed on the next steps for the negotiations of an agreement based on the principle of mutual recognition of the applicable financial market regulation and the relevant supervisory framework.SPEAKERSAmbassador Stefan Flückiger, Deputy State Secretary for International Finance & Richard Knox, Director, Financial Services (International),
H M Treasury, will share an update on the status of negotiations.
Patrick Odier, Chairman of the Board of Directors, Bank Lombard Odier & Co., will reflect on the ambition of the UK and Switzerland’s financial sector to closer align and achieve excellence in sustainability and share the business opportunities he foresees.
Joe Cassidy, Lead Partner on FS Strategy & Financial Markets Infrastructure, KPMG will moderate a panel of distinguished experts and 
Dr. Robert Barnes, CEO, Turquoise Global Holdings, London Stock Exchange Group will give a speech entitled: The Elegance of Equivalence.All delegates are encouraged to participate in the debate.

Further information can be found here.

WHEN Wednesday 14 April 2021

16.00 – 17.30 (UK time)
17.00 – 18.30 (CET time)

WHERE Online REGISTRATION FEEBSCC Members and Guests | Free of charge

Non-members and Guests | £40.00
REGISTER NOW

We aim to be back again next week so send your news, insights, comments and legal analysis to

fennell.edward @yahoo.com

and please circulate this edition to your colleagues

Edward Fennell’s LEGAL DIARY

Friday 26 February 2021 Edition 47

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

SHORT THOUGHT FOR THE WEEK

Does ‘Anywhere’ look like this?

WFH, WFA, WTF?

Apologies to the Legal Diary’s regular reader for returning once more to this topic but where trend-setting and super-cool dude Mishcon de Reya leads, this humble Legal Diary has to follow. As you will have seen from the legal press, the firm’s managing partner James Libson has just issued new guidance that the firm will now permit all its staff and lawyers unlimited remote and flexible working. Given that the end of lockdown is in sight it looks like we can now say goodbye, definitively, to WFH. Instead, welcome with flags and tickertape WFA (‘working from anywhere’).

As usual the lawyers are not the first movers on the new trend. Sensibly. they have allowed other brave souls to take that risk – but they are not far behind. Just last week for example Spotify announced that it would be allowing its workforce to work remotely permanently beyond the pandemic. Paul Bennett, CEO of Perchpeek, an AI-powered relocation app, predicts a surge in WFA policies this spring as businesses look ahead to the future. “Putting the employee front and centre of where they do their best work allows for the hiring of a more diverse work force, allows [organisations] to retain top talent and allows for the repurposing of offices to be more focussed on social collaboration,” he said. “We’re on the cusp of one of the greatest migrations in working history.”

So how important will a law firm’s address be in the future? All those debates we used to have about being a ‘City’ or ‘West End’ firm – or even a ‘regional’ firm – already seem so tawdry and 20th century. All the LegalDiarist can suggest is, ‘Don’t renew the season ticket’.

The Legaldiarist.

In this week’s edition

+ LEGAL DIARY OF THE WEEK

Revving Up Posh Drivers

– Slaving A Way (of life)

Freelances gain better prospects

GROWing Up – A mentorship scheme which works

– Democracy (not) on Princes Street

+ LEGAL ANALYSIS OF THE WEEK

1. BREXIT BREACHES BRITS’ RIGHTS ABROAD

2. WHAT BREXIT MEANS LEGALLY FOR BUSINESS

+ APPOINTMENT OF THE WEEK

+ LEGAL ARTWORK OF THE WEEK: Clifford Chance’s Printmaking Prize

+ WEBINARS OF THE WEEK

THE LEGAL DIARY OF THE WEEK

– Revving Up Posh Drivers

Badge of shame?

 At Editorial meetings for the Legal Diary the assumption is that our regular reader drives a Porsche so this story is right up your autobahn. Leigh Day, normally regarded as the champion of the poor, weary and downtrodden but now one of the key firms pursuing Volkswagen over those dodgy emission tests, has just announced that it is widening its claim for alleged NOx emissions cheating to include Porsche and Audi brand vehicles.  This follows Porsche being fined €535 million by German prosecutors for cheating diesel emissions tests after finding “negligent breaches of supervisory duties” at the company.

“The group claim we are [now] investigating relates to newer and larger models of diesel vehicles manufactured by the Volkswagen Group and includes Porsche, Audi, Volkswagen, Volkswagen commercial[etc,],” said  Leigh Day solicitor Shazia Yamin  “This is the second group claim against the Volkswagen Group, and one of several emissions cases being investigated by Leigh Day. The allegation that manufacturers would deliberately cheat such tests and in doing so pollute our air with unlawful levels of NOx is incredibly serious .We urge anyone who believes they may have a claim to go to the Leigh Day website and complete the form to check if they are eligible.”

So expect a rush at https://www.leighday.co.uk/latest-updates/news/2021-news/leigh-day-launches-emissions-group-claim-against-porsche/

Slaving A Way (of life)

 Baker McKenzie was Headline Sponsor for the 2021 Stop Slavery award’ which was held virtually this week. The firm has been involved with the awards since their launch and helped to develop the questionnaire for the Stop Slavery Enterprise Award (won this year by Hewlett Packard Enterprise) which highlights best practice in corporate commitment and reporting. “While COVID-19 has had a devastating effect on the world’s population, it has brought to light the prevalence of modern slavery in society – whether in the clothes we wear, the food we eat, the products we use every day,” said Alyssa Auberger, Baker McKenize’s Chief Sustainability Officer. “As a firm, we are proud to support the work that is being done across the world to highlight what is one of the most overlooked global issues of our generation, and to fight for those who need help.”

But there is no scope for complacency. In fact quite the opposite. Yesterday the Business & Human Rights Resource Centre (BHRRC) said that the UK Modern Slavery Act had failed in its objective to protect victims of forced labour due to the trifling level of reporting required from companies and lack of government enforcement. Depressingly after collecting five years’ worth of statements  the centre’s  Modern Slavery Registry revealed no significant improvements in companies’ policies or practice.The Modern Slavery Act doesn’t place any legally binding standards on companies to eliminate forced labour and the meagre requirements on companies aren’t enforced,” says Thulsi Narayanasamy, Senior Labour Rights Lead, BHRRC “This points to a troubling lack of commitment to addressing these abuses. Tens of millions of workers are in forced labour – working in mines, on farms, in factories; to produce the everyday goods in our cupboards and wardrobes – bad businesses must be compelled to root this out of their supply chains.” 

For more go to: https://www.business-humanrights.org/en/

Freelances gain better prospects

Don’t worry – you won’t be working here. (But who does?)

As WFA (working from anywhere – see Short Thought above) increases its grip on the legal profession, the lines might become blurred between those who are in full-time employment and their cousins who, for one reason or another, prefer a more flexible engagement. This applies particularly to outfits such as Vario, Pinsent Mason’s flexible offer based on freelance lawyers, paralegals and other professional services consultants. And it has been underlined further by the firm’s announcement that Vario will start to offer learning and career development tools (under the title ‘Vario Advance’) to selected members of its workforce.

This is an important development. One of the drawbacks for freelances has been their exclusion from the professional development opportunities available to the permanent team. By now making some of this available in conjunction with ‘Bridge’ (a performance management platform) there are wins on both sides – the freelances gain more scope for career development while the Vario skill base is enhanced. “We believe we are one of the first – if not the first – contract lawyering provider to offer flexible training on this scale,” said Matthew Kay, Managing Director of Vario. “The combination of an innovative ALSP (alternative legal services provider) with a leading global law firm means that we benefit from the infrastructure, knowledge and expertise of Pinsent Masons. It’s because of this that we are now able to offer Vario Advance….it also demonstrates our ongoing commitment to investing in and developing our freelance community.”

Yes, WFA for an ALSP – that’s the enticing future which beckons us all.

GROWing Up – A mentorship scheme which works

Mentoring is increasingly recognised as the way to enhance career prospects for young lawyers especially those who have no ‘inherited’ familiarity with the profession.

So the GROW legal mentoring initiative, set up a year ago by Justin Farrance, a trainee solicitor with Allen & Overy, has much to commend it.

In an important breakthrough Coventry University has now announced that it will be the first university to join the scheme. “GROW supports students from the UK and the US by breaking down barriers when entering the legal profession,” said a spokesperson for the programme. “Students are assigned a mentor who is able to offer them tailored advice based on having something in common with them, such as the law firm they aspire to join, degree background, having the same alma mater, or membership of the same under-represented community.”

 Sharan Dhaddaassociate lecturer and Coventry Law School’s liaison with GROW, said, “This initiative is a means to connect aspiring lawyers with legal professionals. It allows students to gain an insight into what working life is truly like and provides them with a direct line with people who have taken a similar path. The driving force behind this programme is to enhance social mobility, diversity and inclusivity in the legal industry. The legal profession can seem somewhat daunting, however Grow helps to minimise that by connecting the two worlds.”

For more go to https://growmentoring.wixsite.com/grow

Democracy on Princes Street?

Holyrood: Looks in need of repair?

“In functioning democracies, an independent legal profession is a much-valued cornerstone of the rule of law,” said Sternford Moyo , the president of the International Bar Association (IBA) this week. “Unfortunately, where governments wish to silence dissent, we have witnessed many instances of the abuse of regulatory power, with lawyers being jailed for carrying out their professional duties, simply because they represent a client who is critical of the government or head of a nation. The news reports are numerous and impossible to ignore. An independent legal profession, free from governmental interference, is essential.”

Now, I know that you are probably thinking that these remarks were directed at the Sturgeon regime in Edinburgh. Good guess but not quite right. They were actually aimed at a panel of high-ranking United Nations Member States’ representative as a response to a  new report on barriers to achieving the UN’s 2030 Agenda for Sustainable Development. Mind you, it probably ticks some boxes for an ‘independent’ Scotland too.

LEGAL ANALYSIS OF THE WEEK: BREXIT

(1) BREXIT BREACHES BRITS’ RIGHTS ABROAD

suggests Leon Fernando Del Canto

Maybe we won’t get there this year after all

New post-Brexit visa rules are having significant repercussions on workers in the creative industry. In an open letter by arts union Equity, signed by British stars including Sir Ian McKellen and Julie Walters, the British government is being urged to lobby for the restoration of visa-free work in the EU.

The pandemic has caused significant work loss to Britain’s creative industry, and now Brexit red tape is requiring them to apply for short-term work permits to work freely in Europe.

Under ‘non-EU citizens rules of stay’, a person can visit visa-free for maximum 90 out of the last 180 days. The rule is very strict and illegal stay could result in banishment from the country for at least three years. There is no leeway for family emergencies, dealing with property damage or any other emergency. Information of all stays are recorded in immigration databases and staying longer than the visa allows in any of the 26 Schengen zone countries will not go unnoticed.

Against this backdrop, an important consideration is that almost half a million British citizens own second homes within the Schengen zone – many belonging to creative professionals who purchased them before 31 December 2020. We are currently considering the applicability, of the the first Protocol, Article 1 of the European Convention on Human Rights (ECHR) – of which the UK is still a member – which states that people have a legal right to peacefully enjoy the possession of their home.

This means that by denying individuals from peacefully enjoying their possession, these EU countries are possibly opening themselves up to litigation by potentially infringing British citizens’ human rights.

The EHCR defined that the article in question contains three distinct rules, including a/ the general principle of peaceful enjoyment of property; b/ the rule that a deprivation of possessions should be subject to certain conditions; and c/ that states are entitled to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for this purpose.

Preventing someone from peacefully enjoying their property, independently of whether it is their main residence, appears to directly contravene the right enshrined in the article. 

It is fundamental to take expert legal advice before starting any actions and consider that the person must have used all the remedies in the State concerned that could provide redress for the alleged violation. This is a process that may take several years to be completed.

Although the process may take some time and there is still some research to be done to establish strong specific grounds, we are of the opinion that the case may have some merits and may be worth to be explored by anyone particularly affected by this rule.

Leon Fernando Del Canto is an international tax barrister based in London. He is the founder of Del Canto Chambers, an international tax legal Firm with a country focus on the UK and Spain. More details on chambers can be found athttps://delcantochambers.com/

(2) WHAT BREXIT MEANS LEGALLY FOR BUSINESS

With the Covid crisis covering up and confusing some of the worst effects of Brexit, AMY PEACEY clears the fog over the Channel to remind us of what businesses importing and exporting goods to and from the EU must now do.

Since 1 January 2021 EU law has ceased to apply in the UK, but, so far at least, the practical impact of Brexit on business has been commercial, not legal.

The immediate issues facing business relate to arrangements for trade with the EU. Signed on 24 December 2020, the UK and EU trade relationship is now governed by the EU-UK Trade and Cooperation Agreement (TCA).

So what are the key issues for import and export of goods?

  • Preferential treatment – The TCA facilitates tariff free trade between the UK and EU, BUT this only applies to goods which comply with TCA rules of origin i.e. that the goods originate in the EU or UK. There are detailed provisions for determining where components are made and where products are assembled, which must be proved by obtaining a supplier’s declaration. In addition, in order to import or export goods to and from the EU, businesses require an economic operators’ registration and identification number (EORI).
  • New customs regime – Customs declarations are required for imports and exports. Now operating as a “third country”, a UK business importing goods from any EU country must complete detailed customs forms and comply with a customs regime. Although such compliance will be familiar to businesses used to importing goods from outside the EU e.g. China or the US, this is a new requirement for trade with the EU.
  • VAT – the rules relating to imports and exports to and from the EU have changed and the special rules that related to trade with EU countries no longer apply.
  • Product standards – The TCA provides no agreement for cross border product standards or regulation. Essentially compliance with regulations in the EU and UK is necessary if goods are to be offered for sale in both markets.
  • Packaging and labelling – product labelling and marking requirements have changed. Businesses need to update product labels to ensure dual compliance if goods are to be sold both in the UK and EU.

As evidence from the principal ports already suggests, businesses face a steep learning curve over the next few months as they adapt to the new trading environment.

 Amy Peacey is a Senior Associate at Clarke Willmott LLP.  She specialises in advising businesses on all matters relating to commercial contracts, including compliance with data protection legislation.

APPOINTMENT OF THE WEEK

Penrose Foss joins Clyde & Co

Penrose Foss

Clyde & Co has recruited Penrose Foss as a Partner in its London-based accountants’ liability and regulatory investigations team.

Previously Foss was the General Counsel of accountancy firm RSM for a decade. She has extensive experience of advising at Board level on major risk management issues as well as defending complex, high value professional negligence claims, large scale regulatory investigations and disciplinary proceedings.

Clyde & Co’s accountants’ liability and regulatory investigations team handles both contentious and non-contentious matters for accountancy firms. It is currently working on some of the largest regulatory investigations by the Financial Reporting Council (FRC).

LEGAL ARTWORK OF THE WEEK – LYDIA HAMBLET

Clifford Chance’s Printmaking Winner


OF ALL THESE GESTURES Screenprint 101 x 130 cm Image courtesy of Saatchi Gallery London. © Justin Piperger, 2020

For the past 24 years Clifford Chance has awarded an annual Postgraduate Printmaking Purchase Prize to the best printmaker completing their MA studies at a London art college. This reflects the firm’s long-standing commitment to supporting printmaking as the focus of its extensive art collection.

The winner this year, as announced in the past few days, is  Lydia Hamblet who completed her studies at the Royal College of Art in 2020. Lydia was selected from a shortlist of potential recipients drawn up by Clifford Chance’s long-term art advisers Frank/Hindley Art Consultants.

“Though circumstances to view their prints were severely circumscribed, we were privileged to look at the work of many hugely talented printmakers, from which we agreed to award our prize to Lydia Hamblet, said Mark Payne, Clifford Chance Partner and Chair of the firm’s Art Committee, “We found her work particularly engaging, as it explores ideas about shared personal experiences through a vibrant engagement with printmaking processes. We greatly look forward to seeing future works by Lydia and hope this Prize assists her to progress her printmaking career.’

The award fund will be used by Lydia towards studio space and materials, with the intent of preparing for a solo show.’

More examples of Lydia Hamblet’s work can be viewed here.

WEBINARS OF THE WEEK

COLLYER BRISTOW

Webinar – Insecurity and Uncertainty: Data security and compliance for SMEs in a remote working environment

As the pandemic continues, organisations have learnt to deal with the uncertain environment – however the feeling of insecurity is only growing stronger.

Data security and compliance issues are proving to be a huge challenge for organisations and their management teams. There is little oversight of how securely employees are acting, and so policing cybersecurity and data compliance on legacy and new systems is an ongoing battle. Large scale remote working has placed security and compliance teams under increased pressure; just how well are they managing their threat landscape?

In this interactive round-table discussion at 2-3pm on 16 March, we will discuss the key data security and compliance challenges currently facing SMEs, and provide practical, objective guidance on how best to nullify, or at least mitigate, these risks.

Speakers:

Simon Rycroft, Co-Founder & Director at Cyber Risk Management Group (CRMG)

Patrick Wheeler, Partner – Head of Intellectual Property and Data Protection at Collyer Bristow
 Location: ZoomDate: 16 MarchTime: 2-3pm
Register here


This webinar is being hosted by CRMG so, if you register for this event, CRMG will process data in accordance with their privacy policy.

BDB PITMANS

BREXIT, COVID AND INTERNATIONALLY MOBILE WORKERS
BDB Pitmans and PEM Accountants invite you to a webinar in which they will explore how Brexit and COVID have affected how and where companies employ staff and provide services.The EU-UK Trade and Cooperation Agreement signed in December finally provides some sort of framework for those wishing to send UK nationals to Europe to deliver services to overseas clients and vice versa.The end of the Brexit transition period and the obligation for UK companies now to sponsor new EU national workers not entitled to status under the EU Settlement Scheme also means that companies are rethinking where they employ staff and how they can navigate the UK immigration system.Meanwhile, COVID has upended the traditional approach to workplace location, enabling or forcing many employees, both UK and foreign nationals, to work from the UK and overseas during the pandemic when they are usually based elsewhere.

Kate Millard, Director of Employment Taxes at PEM, and Tim Hayes, Legal Director at BDB Pitmans will talk through the tax, employment and immigration issues relating to international workers in this particular set of circumstances.

Areas they will discuss will include:
– What are the tax and payroll implications in the UK and overseas if a worker works outside of the UK?
– What tax and payroll obligations do I have in respect of employees coming to work in the UK from overseas on a short or longer term basis?
– What employment laws will apply to employees located overseas?
– Can I bring mobile workers back into the UK office once the pandemic is over?
– Can my UK staff travel to the EU on business now?
– Can business visitors come to the UK from the EU on a short-term basis?
– How easy is it to sponsor foreign workers into the UK under the new points-based immigration system?
– Do I need to undertake checks on EU national employees to ensure they have the right to work in the UK post-Brexit?
If you would like to attend, please RSVP by clicking here 
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
 
We look forward to being back next week so please send your news, views and adventures to

fennell.edward@yahoo.com

and please pass on this edition of the LegalDiarist to friends, enemies and even your colleagues.

Edward Fennell’s LEGAL DIARY

Friday 19 February 2021 Edition 46

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

SHORT THOUGHT FOR THE WEEK

The UAE – A Great Place to Escape

Is this the best view of the UAE?

Those who watched the Panorama documentary this week about Princess Latifa and her circumstances in Dubai will draw their own conclusions about whether the UAE is a wholesome place with which to do business. Radha Stirling, CEO of Detained in Dubai has said that UAE must release Princess Latifa immediately and unconditionally.”

But even more pressing for the rest of us is whether the UAE generally is a safe place for foreigners. Of course, many law firms are no doubt doing profitable business there. Indeed, one of the Appointments we report on today is for a firm recruiting a new partner for its insurance practice in Dubai. Yet, asRadha Stirling, regularly points out, working in UAE is fraught with difficulties with RAK particularly problematic. Along with others, Stirling has issued warnings to business and investment groups, financial advisors and lawyers about the risks involved. “The attitude towards the foreign investor is disturbing,” says Stirling. “They are seen as prey, to be used and discarded then pursued via Interpol or through foreign courts to steal money from them.”  So, unless you happen to be the Queen of England, maybe best to steer clear.

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

This week’s theme is lawyers backing their communities

– Having a Domestic

– Young, Gifted and…

– Scots Cross

– Irwin Mitchell Has a Brainwave

+ LEGAL TECHNOLOGY OF THE WEEK

Rupert Butler of Leverets

+ BIG WIN OF THE WEEK

Leigh Day against Uber

+ LEGAL ANALYSIS OF THE WEEK

From ‘I Do’ to ‘I Won’t’: Covid and Divorce Settlements

+ LEGAL DEVELOPMENT OF THE WEEK

Facebook’s Face-off

+ APPOINTMENTS OF THE WEEK

+ WEBINARS AND BLOGS FOR THE WEEK

THE LEGAL DIARY OF THE WEEK

Having a Domestic

Last week saw Valentine’s Day and its new sibling ‘V Day’ which puts the spotlight on domestic violence.

In response Travers Smith LLP has announced this week that it is introducing a Domestic Abuse Policy to show the firm’s commitment to support all those experiencing domestic abuse, particularly during this current period of remote working. “[The move] is designed to raise the awareness of this crucial issue, so that those who are in a position to support others can draw on the Policy and are trained to do so,” it says. 

Travers Smith is already known for representing survivors of abuse in the wider community but, saysDirector for Pro Bono, Sam Cottman, We also think it right that we look after our own people in the event that they experience this kind of abuse. There is no part of society which is left untouched by this issue and so employers have an important opportunity to look after their employees here.”

As part of the new approach the firm is conducting a series of online training sessions, delivered by a domestic abuse charity SafeLives, which is providing specialised training to line managers and the firm’s Mental Health First Aiders. Also available is an anonymous communication platform WorkinConfidence, paid leave arrangements, and a Domestic Abuse Response Toolkit to signpost external services that specialise in domestic abuse.

According to recent research it is reckoned that one in four women and one in six men experience domestic abuse in their lifetimes. Meanwhile, as has been widely reported, domestic violence has rocketed during the pressures of lockdown with charities dealing with male victims of domestic abuse reporting pleas for help increasing by up to 60%.

Young, Gifted and…..

Tamara Box, Reed Smith’s EME managing partner,

If the legal workforce is going to become more diverse then it probably needs to be reshaped by lots of different programmes. Reed Smith has now brought another one into play by partnering with the Black Young Professionals (BYP) network in order to increase the number of Black candidates applying to work at the firm. Reed Smith reckons that it is the first law firm to do so and ally itself with a number of its clients who are already members of BYP.

BYP was set up four years ago and now has a network of 50,000 members and a focus on working with existing black networks and businesses. Joining BYP is seen by the firm as part of its Racial Equity Action Plan (REAP). “[This is] all designed to deconstruct barriers to equity in the legal industry and in our communities,” says the firm.

According to Tamara Box, Reed Smith’s EME managing partner, “The Black Young Professionals network is a fantastic organization and we look forward to working with them to increase the number of Black candidates applying to work at the firm.”

The partnership follows a decision earlier this month to join the Confederation of British Industry (CBI) and 75 British companies in signing up to the Change the Race Ratio campaign.

Scots Cross

Seven hundred years ago the church would gather the faithful together in large numbers to beseech the Almighty to take away the pestilence. Today, however, the last thing the authorities in Scotland want is people assembling in prayer. But the Scottish churches are not taking this kneeling down. Just this week a Catholic canon, Tom White (above), has issued a pre-action letter to the Scottish Government demanding it ends the blanket shutdown on places of worship. As a spokesperson for the canon commented, “Under the present ban Scottish worshippers currently face criminal penalties for going to church while their English neighbours who can attend with safety measures in place.”

It would probably take a wee panel of canon law experts, ecclesiastical historians and expert commentators on the internal functioning of the SNP to work out what’s going on here. Where would John Knox stand on this, one wonders? Blame it on Scotland’s ‘monstrous regiment of women’?

The case is being supported by ADF International, the legal advocacy organisation which acts to support religious freedom. “The Scottish Government’s medical advisors have conceded there is no robust medical evidence for the closure of churches, which remain open in most European countries,” said Ryan Christopher, director of ADF International in the UK. “We must find solutions which protect both the vulnerable and those who understand their communal worship to be as essential as food and water.”

A response must be made by the Scottish Government before Tuesday February 23 but meanwhile, down in Westminster, the UK Government’s Chief Medical Advisor Professor Chris Whitty has said, “All the faith communities in the UK have been extraordinarily responsible in the way they’ve tried to address this”.

Of course that does not mean much north of the border. Although if you’ve ever been in Sauchiehall Street in Glasgow on a Saturday night (as the LegalDiarist has) you might understand why.

Irwin Mitchell Has a Brainwave

For too long, maybe, the march towards equality has majored on ethnicity and gender. Disability has been very much the ‘left-behind’ characteristic. But attitudes are now starting to change whether that be in terms of space travel or securing legal rights.

One encouraging example comes from Irwin Mitchell which has joined forces with Brainwave to become the charity’s first legal partner. Auriana Griffiths, partner and specialist medical negligence lawyer at Irwin Mitchell, said: “Brainwave is a fantastic organisation which provides valuable help to families of children affected by disability. It’s been a pleasure to support the charity and we are delighted to be named as its first legal partner. “

Brainwave’s Chief Executive Keith Sinclair responded “We have been delivering essential therapies to children with disabilities for over 38 years, and to have Irwin Mitchell on board as our official legal partner is fantastic for the families we work with by providing them with professional legal advice.

Meanwhile, also this week, Irwin Mitchell has collaborated with the charity Family Fund, which provides grants for families on low incomes raising disabled or seriously ill children. Yesterday Family Fund hosted a webinar which included workshops from Irwin Mitchell on EHCPs, benefits and financial support together with tips for families with debt issues. More than 370 people registered for the live 90-minute virtual event.

“The charity does vital work around the country, providing grants for essential items and helping families improve their quality of life while easing the daily pressures they face when looking after disabled or seriously ill children,” said Alan Ball, specialist serious injury lawyer at Irwin Mitchell.

For more information on Brainwave, visit https://www.brainwave.org.uk/

For more on Family Fund go to https://www.familyfund.org.uk/

LEGAL TECHNOLOGY OF THE WEEK

The KIDS COMPANY case featuring The Official Receiver v. Batmanghelidjh and others was a resounding success last Friday for the Defence. But, explains barrister RUPERT BUTLER of hybrid firm LEVERETS, it relied upon technology being used ‘on an industrial scale’.

Leading a Defence team in a ten week trial in the Chancery Division is hard work enough, but when hostile media interest is factored in as well as a global pandemic, then the challenges become unprecedented.

It is to everyone’s credit that these directors’ disqualification proceedings went ahead in a socially distanced court room in the Rolls Building from October to December. And where credit is due that includes the Court staff, Mrs. Justice Falk and, the teams, clients and witnesses.

With rising infections that could knock anyone in the case into self-isolation for up to 2 weeks, or serious illness, the entire trial was managed so that it could go into remote session at a moment’s notice and then revert back.

So technology was used on an industrial scale: all of the papers (tens of thousands of pages) were reproduced digitally; live transcription; relay to an adjacent court room for media and public; relay to clients, legal teams and witnesses; display of documents on screens at the command of a remote presenter; evidence receivable from remote locations. All of this was guided by a team audio/visual technicians in court and remotely.

In the end we only lost one person on two occasions to self-isolation – the Judge! But she managed to carry on from her home, missing only 6 sitting days in court.

This is a gold standard and hugely expensive, but if it could become the norm then this would open up the possibility for many more cases to be heard remotely, cutting time and expense to the parties and shifting a serious backlog of business.

 For more go to https://leveretsgroup.co.uk/

BIG WIN OF THE WEEK from Leigh Day against Uber

It has been a good week for Leigh Day concluding this morning with the news that they have been successful on behalf of the GMB Union in arguing that Uber drivers are not self-employed, but are workers entitled to workers’ rights including holiday pay, a guaranteed minimum wage and an entitlement to breaks.  

It’s taken four years but Leigh Day/GMB has won every round. As they point out today’s ruling is the fourth time Uber has lost in court over its treatment of drivers. Commenting afterwards Dr Kelle Howson, researcher, Fairwork Foundation, Oxford Internet Institute said, “Today’s decision is a huge victory for Uber drivers in the UK, with potential implications for hundreds of thousands of other gig workers across multiple sectors.  The Supreme Court has affirmed what Uber’s workers experience daily – that the platform exercises defining control over their livelihoods and working conditions. By misclassifying their drivers as self-employed for years, Uber has deprived them of the basic rights and protections that should characterise all work.While many workers in transport and delivery, care and domestic work, and other industries remain barred from employment protections, and face insecurity and precariousness, this decision is testament to what is possible when workers collectivise and demand better. It is yet another sign that the tide is turning against unfair practices in the gig economy”.   

After winning the legal battle, GMB will now consult with Uber driver members over their forthcoming compensation claim at the Employment Appeal Tribunal. The firm reckons that   tens of thousands of Uber drivers could be entitled to an average of £12,000 each in compensation. Expect the cost of taxi rides to go up.

LEGAL ANALYSIS OF THE WEEK From ‘I Do’ to ‘I Won’t’

Whether its shop rentals or holiday bookings, Covid seems to be changing everything. But can it impact on divorce settlements too? Richard Kershaw, partner in the Family department at Hunters Law LLP thinks probably not.

Since the gravity of the Covid-19 pandemic became clear, divorce lawyers have debated whether its financial impact could suffice to overturn a divorce settlement. The recent decision in FRB v DCA (No. 3) [2020] EWHC 3696 (Fam), in which a husband sought to reopen a £64m award made in March 2020, now offers a judicial perspective.

The family court places great weight on finality in divorce settlements, meaning subsequent events can only justify re-opening a case in exceptional circumstances. In general, there will need to have been an unforeseen and unforeseeable event which invalidates the basis of the order.

Wherethe settlement includes a lump sum payable in instalments, as in FRB v DCA, the court’s power is slightly broader. However, after the 2008 financial crash, the Court of Appeal made clear in Myerson v Myerson [2009] EWCA Civ 282 that “the natural processes of price fluctuation…however dramatic” will not justify reopening such a settlement.

In FRB v DCA, the final order of 30 March 2020 provided for the husband to pay the wife £64m in property and cash. Just before the first cash instalment became due on 30 September 2020, he applied to re-open the settlement due to Covid-19’s financial impact. His application failed, largely because he had not evidenced how the pandemic had impacted his financial position.

However, Mr Justice Cohen also pointed to the need to take a long-term view. He noted that the major stock market indices had rebounded to above their pre-Covid-19 levels and added “Most commentators believe that at some stage within the next couple of years the world economy will be back to where it was”.

His words suggest that, as widely anticipated, it will be difficult to re-open divorce settlements due to Covid-19’s financial impact. Yet there may be cases where it seems clear that a party’s financial situation will not rebound – for example, if their business has collapsed due to the pandemic – in which case they may have a stronger argument. For others, adjusting the timing of payments, and varying the level of ongoing maintenance, may provide some relief.

Richard Kershaw advises on a wide range of financial and child related disputes arising on the breakdown of a relationship. For more go to Hunters Law LLP

LEGAL DEVELOPMENT OF THE WEEK

– FACEBOOK’S FACE-OFF

It’s been a bad week for Facebook. And it could get worse as it gets hit with a class action over its failure to protect personal data reports James Castro-Edwards of ProDPO at Wedlake Bell

James Castro-Evans

A group litigation claim (or ‘class action’) has been brought against a Facebook, for its alleged failure to protect personal data. The claim has been filed in the High Court in London by journalist and writer Peter Jukes, on behalf of himself and around one million users in England and Wales.

Facebook’s alleged failings came to light in 2018, as part of the Cambridge Analytica privacy scandal, where users’ data was used for advertising during elections. Between November 2013 and May 2015, Facebook reportedly permitted a third-party app ‘This Is Your Digital Life’ to collect users’ and their contacts’ personal information, without their knowledge or consent. Users’ data was reportedly collected by the personality quiz app and shared with Cambridge Analytica. The data allegedly included users’ name, gender, location, tagged photographs and pages liked. According to the Information Commissioner’s Office (ICO), which investigated the allegations against Cambridge Analytica, the app was used by around 300,000 Facebook users around the world and collected the personal data of around 87 million users. Around one million UK users’ data was reportedly affected.

The claimants seek damages from Facebook for its alleged failure to protect their personal data, in breach of the Data Protection Act 1998 (which was the law in force at the time the misuse reportedly took place). Mr Jukes’ representative action will seek damages for the affected UK users, who are able to participate in the legal proceedings without having to pay any legal fees. Importantly, the claim does not rest on whether users data was transferred to Cambridge Analytica, but instead, that Facebook is alleged to have allowed third parties to access users’ personal data without their knowledge or consent.

This is not the first instance of a group litigation claim being brought in relation to an alleged breach of data protection rules. However, this is an emerging area of the law. The consequences of the litigation are potentially far-reaching. If each individual were to be awarded only a relatively small sum as compensation, Facebook could potentially face substantial damages, given that around one million claimants have reportedly joined the proceedings. If Mr Jukes’ action is successful, it could potentially set a precedent for other consumer claims lawyers to follow, on a ‘no-win, no-fee’ basis. Group litigation claims for misuse of personal data could become the next Payment Protection Insurance (PPI) or whiplash-claim ‘bandwagon’. Businesses that hold large volumes of personal data should watch this space.

James Castro-Edwards, a Data Protection lawyer and Head of ProDPO (an outsourced Data Protection service of law firm, Wedlake Bell)

APPOINTMENTS OF THE WEEK

MARIA FRANGESKIDES (above) has been recruited by ADDLESHAW GODDARD as a partner in its commercial disputes team based in London. Maria joins from Orrick, where she advised multinational companies, large corporates and high net worth individuals in Commercial Court litigation and international arbitration, spanning a variety of sectors and with a particular expertise in civil fraud and shareholder and joint venture disputes. Maria has over 30 years’ experience in commercial disputes, not only advising clients in civil commercial disputes and fraud matters, but also building a strong practice in international arbitration, including international trade. Michael Barnett, Litigation Managing Partner, said: “Continuing to build out our high value commercial disputes platform generally, and Civil Fraud, specifically, is a key driver of our investment strategy in a buoyant international fraud disputes market.”

BRIAN BOAHENE has been appointed as Partner in the DWF insurance practice in Dubai. Boahene joins from Ince where he was a partner in the firm’s insurance, transportation & trade practices. At DWF, he will establish the insurance practice in the Dubai office and lead development of premium complex claims work in the region. He has a wide-ranging understanding of commercial litigation both in the English High Court and the local courts in the Middle East and has regularly advised on international arbitration and alternative dispute resolution, particularly mediation. Commenting on the appointment, James Fox, Managing Partner, DWF in Dubai, said, “I am delighted that Brian is joining us to help establish our insurance presence in the UAE. His experience and reputation in the market aligns with our existing team and our business’ deep pedigree in the insurance market.”

WEBINARS AND BLOGS FOR THE WEEK

BLOGS FROM FORSTERS In light of the current big issues The new government plan to end unsafe cladding: too little, too late? by Construction Partner, Andrew Parker an COVID-19 vaccines: employment law considerations by Employment Senior Associate, Joe Beeston are worth a view.

Industrial Policy and Competition Enforcement

25 February 2021 | 16.00-17.00 (GMT)
 
In March 2020, the Commission presented a new strategy to help Europe’s industry lead. The strategy aims to drive Europe’s competitiveness and its strategic autonomy at a time of moving geopolitical plates and increasing global competition.

There have been calls for a European industrial policy that will strengthen the position of European companies in the global sphere and at the same time there are advocates of a more protectionist approach in the application of competition rules. 

The panel will discuss the importance of industrial policy for competition enforcement in the EU and the UK.

Chair

Professor Ioannis Kokkoris, Co-Director of the Competition Law Forum at BIICL and Queen Mary, University of London

SpeakersSir Philip Lowe, OxeraMike Walker, Competition and Markets AuthorityBernadine Adkins, Gowling WLGThis event is convened by Professor Ioannis Kokkoris, Co-Director of the Competition Law Forum, BIICL and Queen Mary, University of London. For more information, please visit: www.biicl.org/events


GRESHAM COLLEGE
Thursday, 1 April 2021, 6:00PM – 7:00PM
Online Lecture
Diversity in the Legal Profession
Professor Jo Delahunty QC
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FFEmeritus Law Professor Jo Delahunty QC and guests will explore what the future holds for the next generation of barristers: will they better reflect the society they serve in terms of background, ethnicity and gender? Is privilege and income as much of a division at The Bar as it is in society? 
What can institutions such as Universities, The Inns, The City, and Gresham do to reach out to students who may not have professionals in their family to open their eyes to their potential and the legal profession? 
This lecture will sound the clarion call for action.
REGISTER FOR ONLINE LECTURE



WE AIM TO BE BACK NEXT WEEK!
So please send your news, views, insights and anecdotes to
fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday 12 February 2021 Edition 45

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

SHORT THOUGHT FOR THE WEEK

When law and the media collide

Stamping down on royal privacy

Newspapers thrive on sensationalism – that’s a statement of the obvious and easily accounts for why outlets such as the Mail are keen to publish private and revealing correspondence linked to the Royals. Where the line should be drawn though between legitimate public interest and abusive private prurience is always subject to debate. However, yesterday’s judgment in favour of the daughter of the Markle family could not have been clearer. As Steven Heffer, Head of Media & Privacy at Collyer Bristow, commented last night, “The judgment is a major victory for the Duchess. The Judge has decided the Daily Mail has no prospect of defending her privacy and copyright claims and given summary judgment.

For good or ill the case is bound to have a ripple effect . Among other things it has meant that, as Heffer points out, “Allegations that Meghan had provided private information to the authors of a controversial book,” cannot be tested in court. The consequence may well be that newspapers – for a time at least – will rein in some of their more cavalier reporting. Yet as the row this morning between Mark Stevens of Howard Kennedy and Dominic Crossley of Payne Hicks Beach on BBC Radio 4’s TODAY programme demonstrated, there is still plenty to argue about over the ruling. (Stevens suggesting that such matters will now be aired in the USA rather than the UK).

Interestingly it is expected that coincidentally this afternoon we shall also have the outcome of the long-running Kids Company case. That too might have some important signals for how the media should conduct itself.

The Legal Diarist

In this week’s edition

THE LEGAL DIARY OF THE WEEK

– Need to Think About It

– Wed or Return

– Pensioned Coff?

– French Leave of Your Senses

+ LEGAL COMMENT OF THE WEEK – Grenfell grinds on

+LEGAL ALERT OF THE WEEK – Don’t be phished while you’re fishing

+ LEGAL REPORT OF THE WEEK – Cybersecurity news leaks out

+ LEGAL BOOK OF THE WEEK A Guide to Conducting Internal Investigations

+ UPCOMING WEBINARS, BLOGS OF THE WEEK

LEGAL DIARY OF THE WEEK

NEED TO THINK ABOUT IT

Top decision-makers in business now want advice and thought-leadership from professional service advisors rather than from their look-alike immediate colleagues says research from strategic B2B thought leadership specialists, Grist.

In short, as business faces unprecedented challenges experts are now back in demand. And that includes lawyers. According to the report industry ‘peers’ have completely dropped out of the top three sources of advice for the C-suite, with just 33% of C-suite respondents valuing their colleagues’ opinions. This is down from 48% in 2018. Instead they have been replaced by independent industry experts as the most valued source of insight and guidance.

Also highly significant is that business thinking has become much more short-term. With industries crashing by the day the challenge is survival over the next few moths rather than where they might be in five years time. As the report says, “The attention of the C-suite has now shifted to the near term with half (49%) wanting insight into the near future – the next three to 12 months – compared to just one in five (22%) seeking content about the mid or long-term future – one year and beyond.”

So while it might have been heartlessly inappropriate for him to frame it in such terms, Lord Falconer was not wrong to point out that Covid is a ‘gift that keeps on giving’ for City lawyers.

WED OR RETURN

Give it the finger?

With Valentine’s Day coming up on Sunday – just mentioned that in case you’ve lost all track of time in the current wasteland – here’s a cure for anyone craving romance.

“We may see a surge in the number of marriage proposals being made as couples ‘pop the question’,” says  DAS Law‘s Nicole Rogers. “But while this is a lovely notion, it doesn’t always work out as hoped, with the reality of a broken engagement potentially difficult to deal with, not to mention further unforeseen implications.”

Top of the list is the question of who gets the ring in the event of the wedding not coming off.

“In broad terms, an engagement ring is given as an ‘absolute gift’ and, as such, belongs to the person to whom it was given,” Rogers says. “The law takes no account of which partner calls off the engagement so, regardless of who broke off the relationship, the ring does not have to be given back.”

Gulp! – so no more of those tearful ‘handing back the ring’ scenes in TV dramas?

Not so fast. There is an answer. “If the ring is given on the condition, stated or implied, that it should be returned if the marriage does not go ahead, the ring would have to be given back. However in practical terms, unless you’ve taken the romantic step of getting that in writing, then it may not be as simple as that.”

But in the era of the pre-nup that surely cannot be a problem. Hand-over the ‘sign on received’ form (and a pen) at the same time as the ring. As a sweetener say they can keep the pen.

PENSIONED COFF?

This is about as exciting as it gets, I’m afraid

In these days of WFH you don’t have to be a pensioner to take time off for a chat and a coffee. In an imaginative move – which maybe embodies what we’re all going thorugh – CMS has set up its CMS Pensions Coffee Corner in what is called an informal virtual networking initiative connecting pensions specialists with their peers in the industry’.

The network has been established, as they put it, to ‘fill the void for pensions professionals who are missing meeting new people and having conversations at conferences and seminars’. Ah yes, all those conferences and seminars – how much we miss them and look back at them as a time of rosy romance (ring not necessarily included).

So the Coffee Corner is something to make up for it. Well, sort of. Scores of non-partner/non-principal professionals working in the pensions industry are now switching off – admittedly only for half an hour a fortnight – to participate in a Coffer Corner video call with other industry members. “As well as leading to some interesting conversations, participants are also welcoming the wellbeing and mental health benefits of meeting new contacts at a time when social interaction is generally restricted,” says CMS.

 The rules are simple. You have to register in pairs – whether from the same or different firms doesn’t matter – and you have to commit to turn up regularly – so no bunking off for virtual tea-dances instead. But the interesting thing is that the organizers then introduce you to another pair of individuals. “It is then over to you to arrange a time to chat over a virtual coffee by phone or video conference at any point during that two week period.” Whether you actually have to drink coffee – real or decaff – is not clear.

If you want to find out more than email CMSPensionsCoffee@cms-cmno.  

Or Please click here to register.

FRENCH LEAVE OF YOUR SENSES

Is this the new PR team at Gide? Edelman to the right

In these hazy times, when most of one’s life is lived on a screen, it is forgivable to muddle up the real and the illusory.

Hence, as a keen devotee of the French flic series Spiral/Engrenages, the LegalDiarist was briefly confused on receiving an email from M. Edelman, the wily, worldly and deeply cynical Parisian avocat about a new Executive team at the firm Gide. Was Edelman moving his practice from the criminal to the commercial? the LegalDiarist wondered briefly. Then the euro dropped that this was another Edelman entirely, doing it with elan, in the Gide PR department – maybe the avocat’s cousin? NO, NO of course not!! One’s in a TV programme and the other is in real life. Yes, but which is which?

LEGAL COMMENT OF THE WEEK – GRENFELL GRINDS ON

The building safety scandal still awaits proper resolution as the latest support announced by the government for the replacement of unsafe cladding is inadequate, says Tom Pemberton of Goodman Derrick

Tom Pemberton

Nearly four years after the Grenfell Tower disaster, it is entirely understandable that a number of the government’s own backbenchers have reacted with dismay to the gaps which are left by Robert Jenrick’s statement announcing government support for those whose lives continue to be blighted by living in buildings which are unsafe and unsaleable. While the new funding of £3.5 billion is a welcome supplement to the woefully inadequate Building Safety Fund of £1.6 billion, it will still leave a huge shortfall on the cost of making buildings safe, which is likely to exceed £15 billion.

Like the Building Safety Fund, the new funding will only cover the cost of replacing external cladding systems which comprise unsafe panels made of aluminium composite material. It will not cover the cost of other essential work to make buildings safe, for example to replace faulty smoke ventilation systems or combustible insulation inside the external wall, the widespread presence of which has also become clear after the Grenfell Tower disaster. Furthermore, the new funding will only apply to buildings over 18 metres high. While Robert Jenrick announced that that the government will also develop a long-term low-interest loan scheme which will cover cladding remediation (but again not other essential work) on buildings of between four and six storeys, and stated that no leaseholder will ever have to pay more than £50 a month towards this, this will be of limited comfort to those who entered into leases of buildings which they were entitled to assume were safe.

The tax which Robert Jenrick announced will be levied on housing developers in order to finance the scheme for buildings over 18 metres high will no doubt be passed on in large measure to future purchasers of their homes. Many will no doubt question the fairness of this, particularly if (as appears to be the government’s intention) the new tax will fall on those developers who have never allowed dangerous cladding to be installed on their watch, as well as those who have.

The latest scheme is by no means the last word. Like other firms, we expect to continue to be kept busy in advising affected clients until a solution is found to the building safety crisis which fairly and comprehensively addresses needs and fairly allocates the burden.

Tom Pemberton is Partner in Goodman Derrick LLP’s construction team.

LEGAL ALERT OF THE WEEK – Don’t be phished while you’re fishing

Lawyers are prime targets for hackers whether at work or not so look out for your mobile devices advises Hank Schless of Lookout

Due to the developments of smartphones and tablet technologies law firm staff can do everything they used to do in an office from wherever they are. However, such mobile and tablet use also introduces a number of risks to law firms as they are a prime target for cybercriminals. Mobile devices are preferred targets of bad actors because they are easy to compromise if left unsecured. They are also targetted as people are accustomed to using them wherever they are. This means they are not protected by the security solutions installed in your office space. With cloud productivity suites like Office 365 and Google Workspace, legal staff can access and collaborate on sensitive data on the go. This could put case documentation at risk and cause a violation of lawyer-client privilege if any of those docs are leaked. 

As we trust these devices, we also interact with message content a lot more quickly – and this may include phishing links. The apps we install for personal use, while they may seem harmless, could put your law firm out of compliance or give cybercriminals an additional avenue to compromise your data. One of the first things any law firm should do to combat mobile risk is to ensure their ongoing IT/security training incorporates best practices for securing mobile devices. 

If you’ve gone through any sort of corporate phishing training, you’re probably familiar with how to look for tell-tale signs of a malicious email. For instance: checking the senders email address matches the organisation they claim to be from.  Unfortunately, those giveaways do not exist on mobile as the mobile user experience is designed for a smaller screen. It also doesn’t help that you can be phished in countless ways because any app that can send a message is capable of delivering a phishing link.

Similarly, ensure your users understand that mobile apps that may look harmful from a personal standpoint, can absolutely add risk to your firm. Many of the permissions and data access controls in an app could violate your organization’s governance, risk, and compliance requirements. User education is critical to ensuring you stay on top of it.” 

Hank Schless, senior manager of security solutions at Lookout

LEGAL REPORT OF THE WEEK

– Cybersecurity news leaks out

Where did you say to put the key?

On a similar theme, a new survey carried out by the USA’s Association of Corporate Counsel (ACC), in partnership with Exterro, analysed data from early 1,000 Chief Legal Officers (CLOs) across 21 industries and 44 countries to discover that for the first time, cybersecurity has overtaken compliance as the most important issue facing business as ranked by company CLOs. (Wow! You might say)

The problem, unsurprisingly, goes back to our old friend remote-working aka WFH. Basically this now represents a major threat to cybersecurity which makes it an increasing area of responsibility for corporate in-house legal teams.

“As people continue working from home for the foreseeable future, CLOs are increasingly being asked to assume responsibility for their company’s cybersecurity efforts,” said Robin Grossfeld, Senior Vice President, Global Initiatives at ACC. “This is presenting a new challenge for many in-house legal teams, and one that is helping to redefine their day-to-day corporate roles.”

Meanwhile a separate ACC Cybersecurity Study showed that almost one in five organisations now have an in-house lawyer dedicated completely to cybersecurity – that’s up by a half over the past two years. In short it’s becoming an epidemic.

The full 2021 CLO survey report includes additional insights and is available on ACC’s 2021 CLO Survey page. 

Legal Book of the Week

A Guide to Conducting Internal Investigations

Just out from Eversheds Sutherland, ‘A Guide to Conducting Internal Investigations’is the first guide for companies on how to protect their reputations during investigations.

Written by Jake McQuitty, a Partner in Eversheds Sutherland’s Litigation & Dispute Management group, the book draws on over twenty years of experience undertaking investigations for clients and advising on external investigations by authorities (McQuitty’s experience includes four years as head of investigations and enforcement for a global bank).

“Internal investigations are a daunting prospect for companies, and if badly managed can leave companies bearing the brunt of irreparable damage to staff morale, with a corporate reputation tarnished and a loss of customer confidence,” says McQuitty. “Companies must get organised and fast in the event they need to undertake a major investigation.

 McQuitty went on to observe thatthe book is a long overdue blueprint for businesses which need to investigate incidents in their organisation, often in the face of scrutiny from external authorities.  “It offers practical guidance on how companies should prepare and organise themselves in advance of, and when undertaking, an internal investigation,” he says. “This guide should be essential reading for any professional tasked with investigating issues in their organisation, particularly colleagues in legal, auditing, compliance, risk and HR roles.

Included in the topics discussed are cooperation with authorities, how to interact with staff being investigated, and how to manage corporate communications and PR risks. All it lacks is a letter from the Duchess of Sussex on the latter.

A Guide to Conducting Internal Investigations is published today by Bloomsbury Professional.

UPCOMING WEBINARS, WEBCASTS, BLOGS AND PODCASTS

Lockdown listening from Collyer Bristow The Fine Art of Probate: A new podcast series
NOW AVAILABLE the first episode in the new podcast series, The Fine Art of Probate, from Collyer Bristow’s Private Wealth team. In this series, a selection of Collyer Bristow lawyers are joined by special guests from the world of Art and Culture, to discuss a wide variety of topics relating to probate in English law. In this first episode, Private Wealth Partner, James Cook, is joined by Charles Cochrane of Cochrane Adams Fine Art. Together they discuss the increasingly popular Acceptance in Lieu scheme in probate matters; a government scheme enabling those who have an Inheritance Tax obligation to pay the tax by transferring important cultural, scientific or historic objects and archives to the nation. Click here to have a listen Running time: 36 mins

  For more information on The Acceptance in Lieu Scheme, or other probate matters, please contact James Cook. james.cook@collyerbristow.com

View email online
  
Ethics and the in-house lawyer Making ethical calls when advising within your organisation


In conjunction with Thomson Reuters please join us for a discussion about how ethics impacts on in-house lawyers and what this means in relation to their day-to-day job of advising their clients.

Date:  3 March 2021  Time: 2.00pm-3.30pm

In-house lawyers are subject to the ethical requirements of their professional bodies and their roles will often take them into areas that cover legal compliance and also, increasingly, business ethics. This can highlight important issues relating to the purpose and independence of the in-house lawyer. 
 In this discussion, we expect to explore a range of practical issues relevant to this important topic, including: -What are legal ethics? What do they mean in the context advising in-house clients, for example, where they don’t seek or accept your legal advice? Isn’t ethics just about compliance? What’s the lawyer’s role in relation to upholding the organisation’s ethical standards and policies? What is independence and does it matter?How to deal with ethical dilemmas.  

If you have any questions, queries or comments, please contact us at admin@legalleadership.co.uk 

We hope that you’ve found this week’s LEGAL DIARY interesting. If so, please relay on to colleagues.

We’re aiming to be back next week so please send your diary news, views, comments and stories to

fennell.edward@yahoo.com

And, in case any of our readers are old enough, we hope that you have had an enjoyable jab.

Edward Fennell’s LEGAL DIARY

Friday 5 February 2021 Edition 44

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

SHORT THOUGHT FOR THE WEEK

Still Disruptive after all these years?

Digital disruption? Or Corona Virus?

‘Disruptor’, you will recall, was a very cool thing to be. Disruptive technology, disruptor law firms, ‘disruptive’ ways of delivering services. We welcomed them all with open arms – they were the future. Little did we appreciate that the biggest disruptor of all – short of world war – was just about to hit us.

But without question the grand disruptor Covid is very much changing our way of working including, not least, the legal industry. Suzy O’Keefe, now joining international recruiter Macrae Inc. as Managing Director in London (see story below), asks a number of pertinent questions about the recruitment market. With a talent pool that’s tighter than ever in certain high-demand practice areas including private equity and restructuring, where are firms finding lateral partners with the requisite skills, and what does it take to sign them? How has the pandemic shifted the perspectives of high-performing female partners, in particular, with children at home?

‘Never waste a good crisis’ is always wise advice. Or indeed a good Disruption. It will be interesting to see how law firms follow it.

The LegalDiarist

In this week’s edition

+ Law Diary of the Week

– For All the Good it’s Done

– Better than Expected

– Fewer reach for the Bar

Your Crash or Mine?

Channel Crossing

+ LEGAL ANALYSIS OF THE WEEK :

Vaccinating children – Who decides?

+ LEGAL CAMPAIGN OF THE WEEK

Asbestos – the wider victims

+ APPOINTMENTS OF THE WEEK

+ THE BEST LEGAL WEBINARS AND BLOGS OF THE WEEK

LEGAL DIARY OF THE WEEK

For All the Good it’s Done

Believe it or not they’re all lawyers

Legal pro bono continues to thrive despite the prevailing difficulties reportsThe 2020 TrustLaw Index of Pro Bono published by the Thomson Reuters Foundation. Charities, non-profit organisations, social enterprises and individuals are continuing to benefit from the time and expertise offered by law firms. According to the Foundation a staggering four million hours of legal pro bono were completed globally last year with lawyers each dedicating an average of 26.3 hours.

In an era where three global crises converge – health, economic and environmental – maintaining and growing the pro bono support of leading law firms and corporate legal departments around the world has never been more critical for NGOs and social enterprises on the frontlines of social change,” said Antonio Zappulla, CEO of the Thomson Reuters Foundation.

 The Thomson Reuters Foundation has long championed the practice of pro bono; scaling and developing the sector has been core to the work of TrustLaw, our pro bono legal network – now the largest in the world. We hope this index provides law firms with the information they need to create the right infrastructure for robust and sustainable pro bono practices and to achieve the greatest impact from their pro bono work.”

According to Carolina Henriquez-Schmitz, Director of TrustLaw, Thomson Reuters Foundation the overwhelming majority of lawyers (96%) state that they perform pro bono in order to ‘give back to their community’. “This has certainly been TrustLaw’s experience working with thousands of lawyers across the globe and over the last decade, who have been continuously generous with their skills, expertise and resources,” she said.

The challenges tackled in 2020 ranged from access to justice, economic development and microfinance to human rights, women’s rights, the environment and climate change. 

Better than Expected

Covid is proving a massive disruptor but, as ever, it is a glass ‘half full/half empty’ scenario. According to a new survey from MHA (a network of independent accountancy firms), ‘Almost 50% of UK legal firms reported either ‘no’ or a ‘minor’ impact on their fee income as a result of Covid-19 in December 2020, a dramatic improvement from May 2020 when this was just 14% of firms.’

In December 2020, only 9% of law firms in the UK said the pandemic was still having a major impact on fees, down from 38% in May 2020. This seems to reflect most people’s lives – there was an initial enormous judder but since the Summer things have normalised in many respects despite the second wave and the shuttering of many businesses. Although a majority of law firms still reported a decrease in fee income in December 2020, 91% made a profit since the first lockdown in March 2020. Of those profit-making firms, 18% reported profit growth of over 20% between March and December 2020. In addition, the percentage of those reporting drops in fee income of over 20% fell from 50% in May 2020 to 9% in December 2020.

Karen Hain, Head of Professional Practices at MHA, said: “These results demonstrate that legal firms across the UK have been able to adapt their commercial operations in the second half of 2020, and overcome the challenges brought by Covid-19. The wildly pessimistic expectations many of us had at the beginning of the first lockdown have thankfully not come to pass and profits and legal fees have now stabilised and even increased for many firms.

Even though law firms generated lower fee income since March 2020, many made immediate decisions to reduce expenditure, generating additional profits. Government support also played a role. We reported in May 2020 that 87% of firms utilised the Coronavirus Job Retention Scheme and the furlough payments reduced outgoings and led to better profits than expected.”

So things looking up? Possibly.

Fewer reach for the Bar

Somewhat fewer of these

Yes, but don’t get too complacent. Returning to the theme of ‘disruption’, as widely reported new figures from the Bar Standards Board show a 35% decline in pupillage registrations in 2020.

 “The Bar Council is disappointed but not surprised to see that there was a large drop in the number of pupils registered in 2020, “ said Derek Sweeting QC,Chair of the Bar Council,

 “Throughout this pandemic, the profession has made huge efforts to ensure that existing pupillages and offers of pupillage were honoured, and to increase the number of pupillages recruited going forward. Most notably, the criminal pupillage scheme saw eight commercial sets fund criminal pupillages that would not have otherwise been offered during this recruitment round. However, such acts of generosity are unlikely to be sufficient to make up the shortfall.

 “Even if pupillage numbers do recover to previous levels, the number of cancelled recruitment processes and deferred pupillages from 2020 are likely to leave a persisting “pandemic” gap at a time when legal needs are likely to increase. This will disproportionally affect publicly funded work and highlights the need for a thorough review of the legal aid system to allow to ensure recruitment into this vital part of the justice system.”

In a normal market, less availability of skills which are in high demand should lead to greater payment. But of course the criminal bat is hardly a normal market.

Your Crash or Mine?

Died waiting for whiplash regulation

Now here’s a good example of a disruptor. First4Lawyers, a seven-time winner at the Personal Injury Awards and the UK’s largest independent legal marketing collective, has just announced plans to launch its own law firm. The idea is that it will support injured people who face being unrepresented in claims arising from road traffic accidents (RTAs) after the whiplash reforms are introduced in May.

First4InjuryClaims will be exclusively an RTA claims outfit. Currently up to 10,000 of the enquiries received each year by First4Lawyers relate to RTAs but from now on these be handled by the law firm.

The recent reforms – which have been under discussion for many years – mean that people with whiplash-type injuries lasting for up to two years and worth less than £5,000 will not be able to recover the cost of using a lawyer from the negligent driver’s insurer. Basically this was in order to deter what was believed to be an excessive number of claims (some of which had little merit). However, says First4Lawyers, “The difficulties with navigating the new online ‘litigant in person’ portal, as well as the experience of financial mis-selling claims, indicate that many injured people will likely still want help. But with compensation slashed under the reforms, the margins will be too small for law firms to carry on in the field unless they can handle huge volumes.”

Yet, the firm points out, ‘innocent people will still be injured by the negligence of drivers’. Hence the need for the new firm should be ready to begin work in early summer. With lockdown over by then (one hopes) there will be plenty of scope for thousands of rusty drivers to resume their crashing habit.

Channel Crossing

They might not have many jabs but they do now have Addleshaw Goddard

One of the great mysteries among corporate law firms was why Addleshaw Goddard had no offices in mainland Europe. They had offices in Asia and the Middle East but venturing across the Channel was a step too far. But now that has changed. In recent months they have opened in Germany and France alike. Maybe it is the effect of that other great Disruptor, Brexit.

“Clients are increasingly telling us that their preference is for an integrated cross-border capability,” said John Joyce, Addleshaw Goddard Managing Partner. “Opening an office in the two largest Eurozone economies in quick succession is an important milestone in our plan to build over the coming years a meaningful presence in the major European markets to better service global and UK corporates. Our German office has quickly exceeded expectations and Paris is a unique opportunity to bring a second profitable, market-leading practice to the firm in another key European centre identified by clients.”

Well, better late than never.

LEGAL ANALYSIS OF THE WEEK

VACCINATING CHILDREN: WHO DECIDES?

Sarah Wood-Heath

Debates about the pros and cons of vaccination for children have gone on for years. Now, due to Covid, the implications of anti-vaxing are becoming more stark. So who has the right to decide especially when parents have split views – and what rights do the children themselves have? Sarah Wood-Heath of Clarke Willmott discusses the issues.

COVID-19 vaccinations are not yet being offered to children but specialist family lawyers are getting increasing enquiries from separated parents about what to do should disagreements arise over possible future vaccinations.

”Discussions should be had around the issue of consent to vaccinations for children at the earliest opportunity,” says Sarah Wood-Heath partner in the family law team of Clarke Willmott.

“We are hearing of some cases where those with parental responsibility are disagreeing over whether the child will receive the vaccination. It is common practice that, in the event of a dispute, a medical professional will not administer a vaccination without an order of the Court.

“The paramount consideration of the Court, when determining such applications, is the welfare of the child. In making these decisions, the Courts are required to undertake a balancing exercise, taking into account all available evidence presented to them.

“The court performed this balancing exercise in the recent case of M v H and others ([2020] EWFC 93) which concerned an application by the father of two children that they be vaccinated in accordance with the NHS vaccination schedule. The mother of the children opposed this application and presented arguments to the court against these vaccinations being in the best interests of the children. Mr Justice MacDonald concluded that it was in the best interests of the children to be vaccinated in this case, citing that the overwhelming medical opinion is that it is in the best interests of otherwise healthy children to be vaccinated in accordance with the schedule recommended by Public Health England.

“In this case, Mr Justice MacDonald elected to defer making a decision in respect of a future Covid-19 vaccination on the basis that such a decision would be premature given the “early stage reached with respect to the COVID-19 vaccination programme”. However, he did state that “it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests”, save for credible medical evidence to the contrary such as by peer reviewed research evidence.”

However, it is not always down to the parents to make a final decision.

“Whilst most persons aged 18 or over are presumed to have the capacity to make their own decisions regarding medical treatment, the ability of children to make such decisions depends firstly upon their age. Anyone under the age of 18 is defined as a child for these purposes,” said Sarah.

“For children aged 16 and 17, there is a presumption that they have the capacity to consent to receipt of medical treatment, while for children under 16 there is no such presumption. They are instead required to demonstrate that they have the capacity to consent to receipt of medical treatment. This capacity to consent is referred to as ‘Gillick competency’.

“Whether a child is Gillick competent is assessed on an individual basis taking into account criteria such as the age of the child, the child’s understanding of the treatment (including benefits and risks) and their ability to explain their reasoning regarding the treatment. If judged to be Gillick competent, the child can make the decision for themselves.

“For children aged under 16 who are not Gillick competent, those with parental responsibility will make decisions regarding the medical treatment of the child. As such, it would be the decision of those with parental responsibility whether or not the child receives the vaccination. However, should a medical professional consider that the decision of those with parental responsibility is not in the best interests of the child, then an application can be made to the court for an order to determine whether treatment proceeds.”

For more information visit www.clarkewillmott.com to contact Sarah Wood-Heath online or call 0800 422 0123.

LEGAL CAMPAIGN OF THE WEEK

Asbestos – the wider victims

Lorna Webster

It wasn’t only the people working directly with asbestos who had their health ruined, says Lorna Webster, a partner and asbestos law expert at Hodge Jones and Allen Solicitors. Other family members too – especially those who had intimate contact – were also at risk.

Webster is now calling for greater awareness around the risks and, in particular, the unfair treatment of women who did not work with asbestos directly, but whose health has been dramatically impacted.  

Many people don’t think of the secondary victims of asbestos exposure,” she says. “This is an insidious and pervasive problem that just isn’t getting enough attention. Although cases of mesothelioma amongst women continue to be diagnosed, there are still many barriers to successfully claiming in a secondary exposure matter. Relevant public insurance has to be identified, which often doesn’t exist. And there is no “Plan B” for a woman to recover compensation if her husband’s former employers cannot be pursued and the relevant insurers cannot be identified. Whilst the Diffuse Mesothelioma Payment Scheme makes payment to mesothelioma victims if the victim’s former own employer is no longer trading and the relevant insurance cannot be identified, it does not extend to cover women who have developed mesothelioma through washing their husband’s asbestos contaminated work clothes. 

And there is the problem of the “1965 rule”. How is it morally right that one wife who washed her husband’s contaminated work clothing prior to 1965 cannot bring a compensation claim, but another wife who washed similar clothing after 1965 can? The woman is the innocent victim and yet the law fails her if her husband worked with asbestos at the wrong time. Even the woman who washed her husband’s work clothing after 1965 faces huge hurdles in overcoming the insurance requirements to bring a compensation claim.  It is often the case that these women are left with no assistance from the law and no compensation for their asbestos condition.

Women are victims of a broken and backward system and it has to change – discrimination on these grounds is completely unacceptable. They are being punished and families torn apart simply because they helped a loved one by doing the laundry.”

APPOINTMENTS OF THE WEEK

Suzy O’Keefe

Suzy O’Keefe is joining Macrae Inc. the international legal recruitment agency as Managing Director in London. She was previously with Major, Lindsey & Africa, where as a Managing Director she specialized in placing candidates at law firms in London, Europe and the Middle East. A former corporate lawyer, she earned her law degree from The University of Law in Surrey.

Henrietta Mason (above) a specialist in trust and probate disputes and former partner at Penningtons Manches Cooper, has joined Farrer & Co’s Contentious Trusts and Estates team. Henrietta joins as a Consultant and will be leading on the team’s internal and external technical knowledge and development needs and its strategic vision for the future. As co-author of the leading legal textbook on Wills and Probate ‘Probate Disputes and Remedies’, Mason has developed a formidable reputation as a go-to expert in this field.

Georg Scherpf has been recruited by Clyde & Co as a Counsel and Head of International Arbitration in its Hamburg office. Scherpf joins for German firm Luther and is a German-qualified Rechtsanwalt as well as an English-qualified solicitor. He practises as counsel and arbitrator in disputes, with extensive experience in a broad range of issues and sectors including international trade, corporate disputes, energy and construction disputes. He has represented clients in commercial arbitrations under most major institutional rules

PODCAST OF THE WEEK



Episode 2 is here! We know that kids have lots of questions about Covid and all the new laws affecting our daily lives. This episode should help answer some of those!

 Human rights barrister Adam Wagner explains Covid & the law for kids
 

Podcast hosts Alma-Constance Denis-Smith and Lucinda Acland are joined this week by Adam Wagner, an experienced human rights barrister at Doughty Street Chambers and well-known commentator on Covid laws. He helps answer Alma-Constance’s questions about how the current laws brought in to help control Covid apply to kids and their families. Listen through the button below!
Listen here

We aim to be back next week. Do send this edition on to colleagues. Sign up as a subscriber. And send your news, views, stories and campaigns to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday 29 January 2021 Edition 43

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

SHORT THOUGHT FOR THE WEEKI’M OK, YOU’RE NOT OK?

Ah, yes! Reminds me of the good old days!

For all its early attractions of Working from Home it looks as if its charms are starting to pall – at least for a lot of lawyers. As reported this week, over a third of requests for support made to LawCare (the mental health charity), have related to the pandemic,. Alongside this there are reports of toxic attitudes developing in some firms. But maybe this is not surprising as a number of the big names – and no doubt many other smaller ones – begin to lay off both lawyers and support staff. Certainly it is easy to understand how stressful it would feel to be stuck at home while unseeable top people are making plans for cuts.

In recent years the legal sector claims to have made big strides over mental health. Just how substantial these improvements actually have been is open to question. But if attitudes have genuinely changed and structures are now in place – including workplace mental health first aiders – then now is the time for them to rise to this new and unforeseen challenge.

The LegalDiarist

In this week’s edition

LEGAL DIARY OF THE WEEK

– Jobs galore?

Co-starring Eversheds Sutherland and Farrer & Co

Sterling student work being done by Ashurst

Mentoring is the Key

+ LEGAL INSIGHT OF THE WEEK – COUNTERFEITING COVID

+LEGAL INSIGHT OF THE WEEK – WHEN FOOTBALL MANAGERS ARE SHOWN THE RED CARD

+ LEGAL APPOINTMENT OF THE WEEK

+ LEGAL LECTURE OF THE WEEK

– IS THERE A LEVEL PLAYING FIELD AT INQUESTS?

LEGAL DIARY OF THE WEEK

Jobs galore?

With plenty of law firms’ partners playing musical chairs right now and even the largest firms negotiating their way through scores of departures the figures published this week in the Robert Walters annual Salary Survey 2021are striking.

Overall it seems 30% of professional services firms are concerned about skills shortages arising from a fall in graduates entering the jobs market and Covid & Brexit-related travel restrictions

Meanwhile more than a third (34%) of employees in professional services – banking & financial services, accounting & finance, legal, technology – look likely to receive a pay increase this year, ‘illustrating the economic value of the sector during the crisis’.

As it happens lawyers seem not to be doing quite so well as many other professional groups within this rather complicated picture. Nonetheless the situation is positive by and large, at least as far as in-house opportunities are concerned.

According to Robert Walters the average retention rate of legal professionals – presumably in-house – is a mere 1.4 years (which sounds rather low to the LegalDiarist – but they’re the experts). And almost three-quarters have stated that they will be seeking a job role change this year – with 57% confident about job opportunities in their sector. Meanwhile over 40% are expecting a pay rise.

The conclusion is that for those currently leaving private practice, maybe not of their own choice, there should be opportunities a plenty in the wider world – provided that you can make the cultural transition.

LEGAL: Top 10 Industries Hiring
Fastest Growing Role% Change in Demand
Information Technology & Services+7.8%
E-commerce+6.3%
Hospital & Health Care+5.1%
Facilities Services+3.9%
Construction+3.3%
Investment Management+3.3%
Financial Services+2.9%
Logistics & Supply Chain+2.3%
Banking+1.1%
Insurance+1.6%

Co-starring Eversheds Sutherland and Farrer & Co

Here’s a major film story about Sutherland and Farrer but not, in this case featuring either Donald or Mia. In fact it is Eversheds Sutherland and Farrer & Co who have the starring roles in the arrival of a bright new presence on the UK’s film production stage following the announcement a state-of-the-art film and creative media complex in the Thames Valley on land owned by Reading University.

Directing the deal wereGlynne Stanfield, Partner and Head of International Education and Elizabeth Fevyer, Legal Director from Eversheds Sutherland’s while the Farrer’s team was led by Mark Gauguier, Partner and Head of Commercial Property and Jon Haley, Partner and Head of Corporate.

The agreement between the University of Reading and affiliates of Commonwealth Real Estate LP (a film studios investor based in Los Angeles) is said to represent a significant investment into the local area and into British filmmaking. The film  studios, which will be known as Shinfield Studios, will bring major Hollywood film productions to the UK, creating around 3,000 new jobs. The scheme also represents a significant investment in the British film and creative industries and is expected to create between £500-600m of annual inward investment to the UK.  said: 

“We are delighted that this agreement has been reached, which will bring welcome significant Hollywood investment, creativity and job opportunities to Reading, Wokingham and the wider Thames Valley,” said Professor Robert Van de Noort, Vice-Chancellor of the University of Reading, “It is a credit to the hard work and determination of everyone involved [ by which he presumably meant the lawyers as much as anyone else] to have concluded a transaction while negotiating through challenging restrictions on movement and travel.”

MeanwhileAdam Fisher, Commonwealth Founder and Chief Investment Officer, said “We are very excited about the prospect of investing in the UK creative industries as one of the most vibrant markets in the world. We look forward to building partnerships across Wokingham and Reading to make this project a resounding success. Our ambitions for the new studio will be of real benefit to the local economy and the UK as a whole.”

Let’s just hope cinemas are open and operating again by the time the building work is complete.  

 Sterling student work being done by Ashurst

Scene of a long forgotten battle?

And here’s another example of collaboration between a University and a law firm to warm the cockles of even the hardest hearted lawyer.

Ashurst and the University of Stirling have announced a new strategic partnership focused on developing the next generation of NewLaw professionals They plan to do this by ‘bringing the evolution of the legal sector and the associated new career opportunities into the core of the curriculum’. Through this innovative collaboration, they say, ‘students will understand and embrace the changing legal services market, and identify the challenges and opportunities posed by NewLaw.’

“The practice of law and the role of legal professionals is changing rapidly, and the education of our future ‘NewLaw’ professionals needs to reflect this new dynamic,” said Mike Polson, partner and head of Ashurst Advance Delivery. “This new programme is innovative and forward-looking, not only broadening and deepening the students’ knowledge of ‘NewLaw’, but also providing them with the skills and behaviours needed to meet the demands of the changing legal services market.”

Ashurst is one of the employers involved in the university’s work experience programme. “Being able to provide work placements allow us to really support young people to enhance their learning experience and supplement taught theory, by educating them on the commercial reality of the legal industry.” 

With Scottish independence now looming large just over the horizon there could be no better time to prepare for the ‘changing legal services market’.

Mentoring is the Key

Alexandra Wilson of 5SAH

One of the key points to emerge last evening from Brown Rudnick’s ‘Women in Business ‘ series in conversation with barrister Alexandra Wilson was the importance of mentorship. In Wilson’s case this had started as a teenager when she took part in the Target Oxbridge programme and her mentor had been ‘brilliant’ in shaping her ambitions. But it has continued up to the present in her career with 5SAH where QCs and other senior barristers have been on hand with advice. “You want your mentor to be someone you can call when you are panicking,” she said. But mentors also need to be ‘brutally honest’ when the occasion demands. “A mentor is not a pillow to cry on,” she emphasised

Wilson was awarded the first Queen’s scholarship by the Honourable Society of the Middle Temple, a scholarship for students showing exceptional promise in a career at the Bar.

Alongside her paid family and criminal law work with 5SAH, Alexandra helps to facilitate access to justice by providing legal representation for disenfranchised minorities and others on a pro-bono basis.

A member of the Criminal Bar Association Social Mobility Committee, she is the founder of Black Women In Law. She also co-founded One Case At A Time, an organisation set up to assist disenfranchised minorities in the legal process.

Her first book, ‘In Black and White: A Young Barrister’s Story of Race and Class in a Broken Justice System’ was published in August 2020. 

LEGAL INSIGHT OF THE WEEK – COUNTERFEITING COVID

The Rouse Insight magazine (from international IP law firm Rouse) provides a regular supply of excellent commentaries on business and legal developments in the far east and particularly in China. In the current edition, published yesterday, NICK REDFEARN, the firm’s Deputy CEO writes a fascinating piece about the ‘Top Enforcement Issues to watch in 2021’ What he had to say about ‘Counterfeit Covid related products – from PPE to vaccines’ is both highly pertinent and percipient.

2020 saw reports of a wide range of pandemic critical products such as masks, PPE, sanitizers and cleaners, testing kids and medicines. This is expected to continue throughout 2021. All over the world criminal, customs and regulatory officers must work with IP owners, many of whom have special IP teams working on Covid related products protection. Ensuring a continuous genuine supply of a wide range of Covid protection products remain a critical global need. 

With the arrival of vaccines comes a new challenge, how to stop the fakes? Action requires the management of ingredient producers and supply chains, which often start in India and China. Vaccines are biologics, limiting the number of producers.  While patents are typically used to stop illegal active ingredient production and transport for pharmaceutical products, the patents won’t exist. Reluctance to seek patent protection and the short timeframe since invention means few patents will exists for such novel vaccines. Trademarks and regulatory approvals must be used, which limits action to ‘end markets’ only. 

The status of generic vaccines may be tested. Counterfeits could prove extremely harmful to recipients if they are dangerous; and even if harmless and ineffective they will allow the continued spread of Covid. The global PR risk is huge, with vaccines already a touchy subject; this suggests that government and the enforcement world need to be very proactive and stamp on the slightest whiff of illegal vaccines.

For more go to  https://rouse.com/insights

LEGAL ANALYSIS OF THE WEEK

When football managers are shown the red card

Mt Lampard has left the pitch

You don’t have to be a failure to be sacked as a football manager. You might just be the person who pays the penalty for other people’s underperformance say Alex Huston, Rachel Lester and Jonathan Metliss

After an 18-month stint, Frank Lampard was dismissed on Monday as Chelsea Football Club’s Chief Coach to be replaced immediately by Germany’s Thomas Tuchel. It appears that his departure was amicable with both owner Roman Abramovich and Lampard releasing complimentary statements about the other.

However, it has not always been such smooth sailing between the Club and their departing managers, and it has been reported that Abramovich has previously spent £110m on dismissing his managers. Antonio Conte successfully brought a claim for unfair dismissal against Chelsea at the Employment Tribunal following the termination of his employment in 2018.

His claim was not defended which means that the club effectively accepted that there was no fair reason for dismissal and/or that they had failed to follow a fair procedure. A total award of £85,206 was made by the Tribunal, the maximum a Tribunal could award at the time.

The Curse of Poor Results

Chelsea’s decision not to defend the Conte case reflects the difficulty that clubs face in establishing that a series of losses is because of a manager’s lack of capability (one of the five potentially fair reasons for dismissal) rather than the capability of his players, whose performance could be said to have led to the poor results.

This can mean that some managers who have underperformed can still be paid off or receive substantial damages when their performance, arguably, does not justify it.

Given that Premier League managers are on an annual salary of millions of pounds per year, it is hardly surprising that one rarely sees them bring claims to the Employment Tribunal for unfair dismissal when the Tribunal can only award compensation up to a statutory cap of £88,519 (from April 2020 to March 2021). Employees must also have the necessary two-year period of service to bring a claim which would exclude Frank Lampard from such a course of action.

Breach of contract claims in the Employment Tribunal are also rare as they are subject to a cap on remedy of £25,000. It would therefore be more desirable for an aggrieved football manager to bring a claim in the County or High Courts where an award is unlimited.

In all likelihood, most cases will settle under a Settlement Agreement to protect the club from legal claims, preserve the confidentiality of the settlement and protect the privacy of the parties, bearing in mind Employment Tribunal decisions and awards are now published on the internet and accessible by a simple internet search.

Jonathan Metliss is Chairman of Axiom Stone Solicitors and Rachel Lester and Alex Huston are solicitors within the firm’s Employment Team

LEGAL APPOINTMENT OF THE WEEK

ALEC CHRISTIE AT CLYDE & Co.

CLYDE & CO. in Australia has recruited digital law, data protection and privacy lawyer ALEC CHRISTIE for the firm’s Resilience practice, joining forces with the firm’s cyber risk practice, headed up by Partner, John Moran. Thus is part of the continuing development of the firm’s global technology and cyber risk offering following the hires of partners Marc Voses in New York in September and Ian Birdsey in London in July. 

Christie joins from Mills Oakley, having previously spent four years as a partner at Ernst & Young and has particular expertise in pre-incident support and helping clients enhance their privacy and cyber resilience. He has wide experience in the fields of data privacy, cybersecurity, privacy compliance, digital transformations and blockchain, smart contracts and cryptocurrency. “The last few years have seen a sharp increase in the frequency and severity of cyber incidents and a continuing growth in the need for the services my practice offers, both in Australia and globally,” says Christie.

LEGAL LECTURE OF THE WEEK

NEXT THURSDAY – FREE LECTURE FROM GRESHAM COLLEGE

Is There a Level Playing Field at Inquests? From Death On The Rock to the Birmingham Pub Bombings

4 Feb, 6pm-7pm online (or watch later)

Presented by Leslie Thomas QC, Gresham Professor of Law

Is there is a level playing field between participants at inquests? What does ‘equality of arms’ mean? Is such a concept appropriate when looking at inquests? Are inquiries better?

How have they developed since the IRA Death on The Rock case? What are the problems faced by those representing families, is there a case for fundamental change? If so what model should we adopt to replace the present system?

https://www.gresham.ac.uk/ lectures-and-events/inquest- equality

To register for this lecture use

an email address via the webpage for the lecture. You will get an email with a link 10 minutes before the lecture is due to start. 

Read more about Professor Leslie Thomas QC

You can see Professor Thomas in this recent Panorama documentary about deaths in custody https://www.bbc.co.uk/ iplayer/episode/m000r6z2/ panorama-i-cant-breathe-black- and-dead-in-custody.

We are planning to be back again next week so please send your news, views, insights and analysis to

fennell.edward@yahoo.com

and please relay this on to friends and colleagues