Edward Fennell’s LEGAL DIARY

Thursday July 30 2020 Lunchtime publication Edition 19

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

SHORT THOUGHT FOR THE WEEK

Witnessing WILLS remotely – who would have ever believed it possible? Let alone legal? After all, who had even heard of Zoom six months ago? So, even though the social rules of engagement keep shifting, the constant is that people, the law and lawyers in particular can keep adjusting and adapting to make things work.

That should apply also, to the social make-up of the profession. As our story today about The Legal Apprentice (see Legal Diary) demonstrates, there are imaginative ways to innovate and make significant change. It really does just depend on the WILL.

The Legaldiarist

In this edition

– The Legal Diary of the week

– Firms must lead action on racial inequality says Trevor Sterling

– Have Lawyer, will zoom

– Blogs from Forsters

– Podcasts from Dechert

– Images of legal London at the RCJ

– The Blank Canvass – legal art works needed

LEGAL DIARY OF THE WEEK

HIGH STAKES IN SAUDI INVESTIGATION

Today’s news that the Serious Fraud Office has decided to bring charges in connection with possible corruption at GPT Special Project Management (a subsidiary of Airbus) by paying bribes in Saudi Arabia has brought immediate comment from white collar crime lawyers.

First out of the traps this morning was Aziz Rahman, Rahman Ravelli’s Senior Partner, who said, The bringing of these charges could be viewed as a brave move when the possible political and economic effects on relations between the UK and Saudi Arabia are considered.

“In 2006, the Tony Blair government called off a three-year investigation by the Serious Fraud Office (SFO) into alleged bribery by British Aerospace in relation to Saudi defence contracts, citing economic and political reasons. This case could possibly have gone the same way.

“This is a case that has taken eight years to reach the stage where charges are brought. It did certainly seem as if successive governments were simply kicking the can down the road and avoiding making a decision.

“The SFO submitted a formal request to the then Attorney General to launch a prosecution at least two years ago. The length of time for a decision to be taken was being viewed in some quarters as a sign of just how willing – or unwilling – the UK was to take a tough approach on tackling bribery when it could be politically sensitive to do so.

But we now have a decision made by the current Attorney General. While the eventual outcome obviously remains to be seen, it is to this government’s credit that it has grasped the nettle on this one.’

ANALYSE DATA, BEHAVE LEGALLY

There seems to be a growing trend of combining legal expertise with other complementary skills to carve out a unique niche in the market. Presumably it’s the attraction of offering intersectionality – where it’s better to get a combined service rather than two disjointed ones – which is the big sell.

Well, Ropes & Gray have now joined the club with its launch of an innovative new consulting service which is claimed to be unprecedented in scope: R&G Insights Lab is said to be the legal industry’s first-ever offering to focus on ‘analytics and behavioral science’. The lab will combine the legal team of Ropes & Gray with experts in analytics, behavioral science, and strategic consulting. Looks potentially very interesting. Worth viewing the video

KINGSLEY NAPLEY BACKS ‘THE LEGAL APPRENTICE’

Stephen Parkinson, Senior Partner at Kingsley Napley

The Legaldiarist is delighted to see that Kingsley Napley has been undeterred by the dreaded C-virus and has pushed ahead with its excellent ‘Legal Apprentice’ competition for schools.

Now in its second year – it was originally developed in conjunction with the Law Page of The Times – ‘The Legal Apprentice’ aims to give school pupils an insight into the knowledge that solicitors need and the interpersonal, communication and problem-solving skills that they apply in their day to day jobs.

Having been slogging away through a series of rounds for several months now the four successful schools – from a total of 700 teams which entered – have been announced for the big final event in September. These includeBurnley College in Lancashire, Fort Pitt Grammar School in Kent, Varndean College in Brighton, and Shenley Brook End School in Buckinghamshire. Unlike last year , however, when the final was hosted by the Times this year’s final will be virtual in form – but then isn’t most lawyersing these days?

“As a firm, we wanted to do something positive to increase social mobility within the legal profession” said Stephen Parkinson,senior partner at Kingsley Napley.  “The Legal Apprentice competition helps to dispel many of the misconceptions pupils might have about a career in the law, demonstrating that it can be accessible, fun and rewarding.” 

In the run up to the final showdown the four schools will be mentored by Kingsley Napley lawyers – a prize in itself. But there are generous financial rewards awaiting as well as the prospect of a Legal Apprenticeship with Kingsley Napley – a truly outstanding and life-changing outcome possible for someone.

INSPIRATIONAL WOMEN?

There is just over six weeks available to make your nominations for the The Inspirational Women in Law Awards which are organised by the ‘First Hundred years’ project.

Now in their fifth year The Inspirational Women in Law Awards seek to ‘identify the trailblazers of the profession who are promoting equality in the legal industry’. Whether they are going to be affected by the ‘trans’ debate remains to be seen – lots of potential issues there – but as things stand the judges will be deciding on the winners in the following categories:

Inspirational Woman of the Year, Under 35 Lawyer of the Year

Inspirational Woman of the Year, In-House Lawyer of the Year

Inspirational Woman of the Year, Solicitor of the Year

Inspirational Woman of the Year, Barrister of the Year

Inspirational Women Awards Champion of the Year (Any gender, any field, making a contribution to equality)

The nominations are open until midnight on 14th September 2020, For more details go to

CAMPAIGN OF THE WEEK (Or maybe the decade)

Firms must lead action on racial inequality

says TREVOR STERLING

Is the ‘Black Lives Matter’ campaign going to change things for ever? Or will it lose momentum amidst a Covid recession and mounting unemployment – including in the legal sector? Come what may this is no time to stop conversations on racial inequality, declares TREVOR STERLING, Partner at Moore Barlow and UK Diversity Legal Awards’ current Lawyer of the Year. But the big question is ‘Are law firms doing enough to create safe spaces for this to happen?’

Since the death of George Floyd in Minneapolis, USA in May, it has been heartening to see lawyers sharing and speaking out about their experiences of racial inequality. The Black Lives Matter movement put the issue of racial equality firmly on the national agenda in the UK, and yet within the legal profession conversations around race have remained light touch.

The statistics from the Solicitors Regulation Authority give an insight into why – only three percent of lawyers are black. Change cannot therefore be driven through by those suffering racial equality, given they themselves are in the minority. Senior management, irrespective of race, need to act. In a profession that prides itself on fairness and equal treatment, we must ask ourselves whether our barriers to entry are too prohibitive to provide a solution to the problem of racial inequality.

I understand that talking about race can be uncomfortable. For people with a rudimentary understanding of racial issues, there is an understandable fear of exposing ignorance and unintentionally causing offence. For individuals who want to champion diversity and inclusion, it is can be tiring and frightening to speak out and risk exposing yourself. However, if a conversation is uncomfortable, it is likely worth having.

The expectation is now on firms to create, and senior management in particular to encourage, safe environments for open discussion and action. I do not think the profession fully understands the importance of building these safe spaces yet, but encouraging people to ask questions and share personal experiences must happen for us to achieve systemic change and build a more diverse workforce.

From my personal experience, I welcomed Moore Barlow’s Managing Partner, Ed Whittington, sending a vlog to all staff raising the issue of systemic inequality and opening the conversation in May. The firm is taking more action, introducing Leadership Development training with a core component looking to address how leaders can create a culture of psychological safety for everyone at the firm.

Firms must continue the conversation so we can achieve real change – it is time to put action into words.

DEBATE OF THE WEEK

HAVE LAWYER< WILL ZOOM

There’s been an immense amount of comment about the proposals to permit the witnessing of wills by zoom etc. – some for, some against. The precedent-setting Dr NICHOLAS BEVAN, Solicitors Title LLP is very much a supporter.

Within two weeks of joining Solicitors Title LLP, I was presented with an interesting challenge. A client wanted to make a will; but was ensconced 150 miles away in self-isolation due to the onset of the coronavirus lockdown.

The legal profession has been uniform in asserting that section 9 of the Wills Act 1837, which prescribes the formalities for a valid will, insists on the physical presence of a witness. However, when I researched the point, I discovered that nowhere in any of its statutory iterations, which date back to the Statute of Frauds 1677, nor in the extensive body of judicial rulings interpreting them, was this ever stipulated. What the law actually requires is a clear ‘line of sight’: one that enables a witness to attest to the fact that the testator signed or acknowledge the will.

I duly executed the client’s will on 1 May 2020, employing live-streaming video technology to manage and witness the whole procedure remotely from my office. The client didn’t touch or sign a single document. In doing so, I inadvertently set a legal precedent.

I shared my research with the Government in a detailed report, and received a gracious and encouraging reply. However, given that the Law Commission and many others were trenchantly insisting on the need for a physical presence, the government informed me that it had decided to provide legislative clarification.

The government’s press statement last Friday goes some way to clearing the log jam caused by this increasingly polemical issue, confirming ‘video-witnessing’ is capable of constituting a valid ‘presence’ if certain protocols, matching my own, are adhered to and sanctions ‘video witnessed’ Wills made after 31 January 2020. A somewhat bewildering two year time limit follows – surely either video wills are valid under the existing law or they are not!

P.S. But not everyone agrees Philip Collins, Head of Winckworth Sherwood’s Contested Estates comments: “We are very concerned about any watering down of the current requirements. The risk of undue influence is clear – professionals and witnesses cannot be sure who else is in the room when a testator is giving instructions or signing their will. The lack of face-to-face contact makes it that much harder to assess someone’s health and their capacity to make a will. We suspect this will just add to the increasing number of disputed wills and estates in the future.”

On the other hand according to Daniel Watson of Hunters Law: While the strictness of the existing Will-signing requirements acts as a safeguard against fraud and undue influence, the law relating to the witnessing of Wills has nevertheless been slow to adapt to reflect changes in technology and society (in contrast with areas of law such as contract law, where the use of technology to facilitate the signing of documents has been much more readily incorporated).


Read also

https://www.lawgazette.co.uk/practice-points/the-need-for-certainty-on-wills/5105105.article by Nick Bevan

https://www.lawgazette.co.uk/news/video-wills-risky-and-unnecessary-solicitors-claim/5105165.article

BLOGS OF THE WEEK

FORSTERS ON REAL ESTATE DEVELOPMENTS

In this funny old Summer it is difficult to gauge who is on holiday, who is working flat out and who is just twiddling their thumbs waiting for something to happen.

Fortunately for lawyers in the real estate business the Government and the Law Commission have been busy proposing and making real changes which should stir up in interest – and then activity – among the clients.

The main proposals cover leaseholders. Although changes to leaseholders’ rights came in a few years ago they did not make much impact. Now reforms to leasehold enfranchisement and commonhold look set to give bite to leaseholders who feel that they are still getting a bad deal. To help galvanise reaction Forsters has seized on the announcements to issue in the past few days a series of blogs which scope out the changes and indicate the issues that people need to think about to take advantage of them.

The blogs now available are

Meanwhile, the government’s attempts to perk up the High Street through changing the use classes orders from September are described in Changes to the Use Classes Order in England by Planning Senior Associate, Laura Parrish [Go to https://www.forsters.co.uk/news/blog/changes-use-classes-order-england-planning-permission-development-rights ]

Blog-power – showing the world you know!

PODCAST OF THE WEEK

– DECHERT ON COMPLIANCE

Dechert is continuing with its regular Coffee Break Compliance Broadcast Series. Episode Four on Due Diligence came out last week. “This series provides insight on several issues, including how to instill corporate values, ensure maximum engagement from remote training, revisit risk assessments and due diligence processes, monitor financial controls and leverage technology,” says the firm. Each broadcast runs approximately 10 minutes.

Go to https://www.dechert.com/knowledge/event-and-webinar/2020/7/coffee-break-compliance-broadcast-series—episode-four–due-dil.html?utm_source=vuture&utm_medium=email&utm_campaign=onpoint

LEGAL LONDON SHOTS OF THE WEEK

– THE ROYAL COURTS OF JUSTICE

We continue with our occasional series with some snaps and snappy comment on the RCJ by Dan Dodman, Partner at GOODMAN DERRICK LLP

The Royal Courts of Justice in The Strand /Fleet Street

The Royal Courts of Justice are the most recognisable legal building in the city and seem to sum up the elegance and mystic associated with the profession as a whole. I certainly remember the dread of attempting to pay Court fees to have a claim issued shortly before 4pm on a Friday and having to negotiate the labyrinthine corridors to numerous offices without any real idea where I was going. How much easier do young trainees have it in the Rolls building?!

The building was allocated £1,453,000 of public money in 1865 for purchase and building. Initially expected to take six years, construction dragged on for a further two as a result of employment wrangles (stonemasons on strike), bad weather and financial distress. Queen Victoria herself opened the building in 1882, but the architect, G.E. Street, had already died during the build – it is said down to the stress of the project itself. The RCJ’s 35 million bricks and three miles of corridors represent his legacy in many ways.

It is said that there are over 1,000 clocks in the building and there is a gentleman who comes in twice a week to wind them and keep them on time. How else to work out whether you have missed that key 4pm deadline or not?

ARTWORK OF THE WEEK – THE BLANK CANVASS

These is a gap on our ‘wall’ this week where a terrific art work from a law firm should be on display.

For next week – and the weeks to follow – we should love to hear from firms who would like to present an image and some comment on their favourite in-house painting, sculpture or photos. We are very grateful to those firms who have contributed some of their key works over the past five months but we are keen to throw a wider net. Please get in contact if you have art on your walls – probably unseen at this time and which you would like to share.

CONTACT

We hope that you have enjoyed this editon of the Legal Diary. Please share it with colleagues and continue sending your news and comment to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Thursday July 23 2020 Lunchtime publication Edition 18

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

SHORT THOUGHT FOR THE WEEK

– NHS ANTI-HEROES?

Tonight on BBC1 at 9.00 PM a pack of celebrities will be celebrating the NHS’s Superheroes. That’s all well and good but the constant bombard of praise for the UK’s doctors and nurses is in danger of providing cover for the undoubted failures and errors within the NHS. This is embodied most notably by the horrendous problems in NHS maternity units at Shrewsbury & Telford.

But according to Nicola Wainwright, clinical negligence partner at JMW Solicitors failures in care and the reports of families being treated with a lack of kindness and respect are not unusual.I have met many families who have had similar awful experiences at different hospitals and whose concerns have not be heeded and whose stories have not been listened to. The real question is why these failures and shoddy treatment were allowed to continue. That brings into question the ability and/or willingness of the NHS to learn from its mistakes to improve patient safety. It also raises the question as to why it is the families and not doctors, nurses, hospital managers or complaints or compliance teams or NHS England or the healthcare regulatory bodies that have led to these independent investigations.”

Unfortunately it is unlikely that any of the celebs on the BBC tonight will be asking those questions.

The Legaldiarist

LEGAL DIARY OF THE WEEK

EDGING IT

With all the throbbing and portentous urgency of a new car launch Thomson Reuters announced this week the arrival of Westlaw Edge, the company’s ‘next-generation legal research system for the UK market’. The vibrant bowing of violins signalled that this was something which was going to rock the world of smart young lawyers – and maybe older ones too – keen to show off that they were ahead of the game when it came to new developments in the law. Big frame pictures of a railway terminal and an island – at least I think that’s what they were – sent out subliminal messages about the dangers of being adrift in an environment of endless shifting change where the only hope of rescue comes in the shape of a computer screen displaying Westlaw Edge in all its reassuring , slick immediacy.

So, yes, there was a lot of super-hype going on. But, of course, the ad. was correct. Clients come to lawyers because they want to have the latest analysis of the law and its regualr updating. And if you don’t have it then they will go elsewhere. And as Thomsons Reuters points out, they are building on ‘200 years of legal content’ so they know what they are talking about allowing users ‘to stay ahead of regulatory change and navigate the legal divergence with the EU.’

So this is the law made into a high tech, quasi-engineering exercise with a user interface which displays ‘the right tools in the context of the legal research session, including new filters, updated toolbars, documents optimised for easier scanning, and more.’ Plus a lot of case analytics. To put it crudely, Thomson Reuters has put in the hard work of keeping abreast of new legislation so that you don’t have to. But the question to put to ‘the answer company’ is ‘Where does this led to next?’

PRIDE OF KENT

At last – after 450 years we have a new office!

Thomson Reuters might have access to over 200 years of legal records but another Thomson , Thomson Snell & Passmore‘s claim to fame, goes back more than twice that far. So this week the Kent-based firm is celebrating the 450th anniversary of its foundation in 1570 when Nicholas Hooper, a curate of Tonbridge Parish Church set up his legal practice. Over the years one client led to another, partners came and went, new outfits joined and there were a series of name changes so that the title Thomson Snell & Passmore was not actually settled upon until 1968. Nonetheless the Guinness Book of Records has recognised a genuine chain of continuity across the centuries and awarded TSP the title of oldest law firm in operation across the whole world.

No doubt had it not been for Covid-19 all sorts of junketing would be taking place across these Summer months. As it is, the firm has just released a forty minute video of a panel discussion of distinguished partners, current and recent, reflecting on the firm’s resilience and longevity. [FULL DISCLOSURE AND SPOILER ALERT TSP kindly invited The Legaldiarist to chair the panel discussion].

Meanwhile though, as the firm points out, 2020 marks a key year in its history as it has also recently appointed a new senior partner – Joanna Pratt – in succession to James Partridge, who held the role since 2008. Commenting on the anniversary, Sarah Henwood, the firm’s CEO said, “Today is a momentous one for Thomson Snell & Passmore. We’re very proud of our long history, and we recognise that we wouldn’t be here today unless we were able to embrace change. From leading the way as early adopters of technology in the 1970’s and setting up a publishing arm producing the first set of legal precedents (which we later sold to Sweet & Maxwell), anticipating and responding to change is part of our DNA. As we start to navigate a ‘new normal’ with coronavirus continuing to impact on all aspects of life, this ability to predict and adapt to change will be more important than ever.”

To see the Thomson Snell & Passmore video ALUMNI panel discussion go to 

https://www.ts-p.co.uk/news/marking-thomson-snell-and-passmore-s-unique-history

TIMELY MEASURE

EU Disclosure Regulation lies just over the horizon – March 2021 being the key date – and to guide travellers unfamiliar with this new terrain Macfarlanes has published this week a very useful timeline – a model of its kind – as to what happens when as we advance towards it. See

https://sites-macfarlanes.vuturevx.com/47/2166/uploads/esg-timeline-final.pdf

The Disclosure Regulation (or ESG Regulation/SFDR as it is known to its friends), is part of a broader legislative package under the European Commission’s Sustainable Action Plan. It requires firms to make strategic business and policy decisions regarding their approach to ESG which must be disclosed on their website and elsewhere. Although the focus of the Disclosure Regulation is the provision of information to investors, clients and other stakeholders, it is clear that the preparation of accurate and comprehensive information on ESG will be burdensome – so it’s the time to get started. Look at that timeline now.

[Post-script: Macfarlanes has a knack for well-produced visuals. Way back in 2005 it published a guide to IP legislation called ‘the brandbook’ – the coolest piece of hard-backed communication ever to come out of a law firm].

BACKING AFRICA



Her Excellency Ellen Johnson Sirleaf

Slow to feel the initial impact of Covis-19 Africa now seems to bearing its full brunt. Meanwhile issues of growth and sustainabity are ever more urgent and were at the heart of Hogan Lovells’ seventh annual Africa Forum held earlier this week.

Her Excellency Ellen Johnson Sirleaf, the First Female President of Liberia & Nobel Peace Laureate, appeared as the impassioned keynote speaker to an online audience of business leaders. Addressing the Covid-19 crisis facing the continent she said, “”The prevailing wisdom is that our continent will survive this pandemic but the effects it will leave are enormous. The truth is that unless we address the issues of the pandemic and its presenting challenges… not only are we all ultimately susceptible to poor health but also we risk all other aspects of our collective existence and enduring partnerships.”

Moving on to climate change Sirleaf observed, “It is a fact that Africa, unlike other regions of the world, has contributed less to the climate crisis we now face. However, such is the interconnectedness of our world that despite this and the fact that many on the continent are without electricity, Africa faces a higher burden than most on changes for climate. Is Africa ready for sustainable values? Is Africa ready to resume full responsibility for its development? Yes. Africa is ready.”

After the conference the Head of the Hogan Lovells Africa Practice, Andrew Skipper, said: “I was delighted to host our 7th Africa Forum virtually and with such an exceptional array of speakers. We were determined to remain present in Africa despite being in the midst of the global pandemic, COVID-19, and we did so. To say Covid-19 has changed the world is an understatement and featured as a backdrop to our discussions. The immediate and lasting effect of the virus is still reverberating, and whilst it will undoubtedly have a fundamental impact on the way we do business in Africa, from Africa and across Africa, the positive and robust discussions showed a way forward brimming with hope.”

LEGAL ARTWORK OF THE WEEK

ALEXIS HARDING AT LINKLATERS

An artistic environment in a corporate setting can stimulate creative thought and examination. That’s why many of the top law firms have invested in art collections – and it might be one of the losses of ‘working from home’. At Linklaters Curator CATHERINE SHEARN has sought out paintings and artworks which reveal the process and deliberation behind the artists’ works. By including preparatory sketches, studies and works where the artist’s hand is clearly evident, she hopes to encourage, subliminally or directly, a creative thought process in the viewer. Here Catherine describes one of the most prominent pictures confronting visitors when they arrive in the firm’s London office.



Alexis Harding Double Rebound – Oil and gloss on canvas

Watching over the visitors to the (at this moment, empty) waiting area in Linklaters’ reception is a striking abstract painting. Two large pink circles appear to have collapsed at the bottom of the canvas by Alexis Harding. On closer inspection, their journey across the surface of the painting is revealed in the traces left on the black background.

Harding’s method involves pouring gloss paint onto a wet oil surface, in this case forming two circles. The paint is then left to dry and over a period of months is pushed, pulled, and squeezed into position. They reveals a dramatic scarred and puckered surface, giving clues about the journey of the moving paint circles, and encouraging the viewer to reflect on the artist’s process and the work involved in creating this piece.

This work follows a long line of abstract painters who have experimented and pushed ideas of abstraction using form, colour and materials. The choice of the circle echoes other artists in this collection – Tess Jaray, Jennifer Durrant, Terry Frost, Barbara Hepworth and Clifford Fishwick rely on this familiar motif in other works around the building – but Harding playfully disrupts the form of his painting by letting the materiality take over

Alexis Harding won the prestigious John Moores Painting Prize in 2004, and has been a key part of a contemporary movement loosely called Process Painting. The subtlety of his work and the analytical exploration of his medium appeals to many at Linklaters – he is a confident and single minded artist who has made his own path out of finding the beauty in process. Hopefully his exploration of paint and its properties provokes comparable questions in the minds of the staff and visitors who engage with this painting.

The Legaldiarist hopes that you have enjoyed this Summer edition. Do share with colleagues and contacts and please continue sending your news to fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Thursday July 16 2020 Lunchtime publication Edition 17

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

SHORT THOUGHT FOR THE WEEK WHERE’S THE TRUTH?

The daily arrival at the Royal Courts of Justice of Johnny Depp and Amber Heard – both wearing elegant , colourful masks over their faces – has reinforced the sense that this case is all about showbiz and everyone involved is a grand-standing bandit. And so the question arises of where JUSTICE can be found in this mess of immaturity and self-indulgence.

It is useful to remember then, as Emily Cox, a partner of Stewarts, points out, “English libel law is different from many other jurisdictions, including the US. The burden of proof [ in this kind of defamation case] is on the defendants to prove the truth of their case, not on the claimant – i.e., not Depp.”

So while the general public can wallow in the squalid details of Depp’s marriage this may be mostly immaterial. As Emily Cox puts it, “To win their defence, NGN and Wootton need to prove that their specific statement about Depp that was published in The Sun was in itself factually true.” Worth bearing in mind as the case moves towards summing up.

The Legaldiarist

CONTENTS

+ HOT LEGAL STORY OF THE DAY

+ LEGAL DIARY OF THE WEEK

+ FLOP OF THE WEEK – UNEXPLAINED WEALTH ORDERS?

+ LEGAL TOPIC OF THE WEEK THE NHS: NO LONGER OFF LIMITS ?

+ WEBINAR OF THE WEEK

+ ARTWORKS OF THE WEEK – DENTONS

HOT LEGAL STORY OF THE DAY – US vs EU OVER PRIVACY SHIELD

While the world’s biggest rivalry between a beleaguered US and an advancing China starts to play out you might think that the uncomfortable relationship between the US and the EU is a mere sideshow. But there are important practical business issues here too as embodied in the Schrems-Facebook case where the Court of Justice of the European Union ruled today that the Privacy Shield scheme for transfers of personal data from the EU to the United States is unlawful,.

“This judgment is the second major blow delivered to the US privacy and data protection legal framework by the EU Court of Justice relating to the Snowden disclosures,” said Stewart Room, Global Head of Data Protection and Cyber Security at DWF. “In today’s climate of unstable transatlantic political relationships, it is unlikely to meet with approval in the US. However, this is not just a US problem. Twice now the European Commission has tried to reach an agreement with the US on data protection, only to have its efforts ruled unlawful. There needs to be a different mindset to how the challenges of international transfers to the US are met, because failed schemes like this have significant impacts for individuals and for businesses [who] will be asking themselves ‘what is next’? There are other countries that pose challenges to privacy rights and data protection and they raise obvious questions about the potential for other legal action.”

Eduardo Ustaran, co-head of the global Privacy and Cybersecurity practice at Hogan Lovells, emphasises that this goes beyond just the US-EU relationship. It is important not to frame it only as a conflict between European privacy versus U.S. surveillance. The Court is reiterating its previous stance in similar cases where irrespective of the practical consequences, European data protection rights will always prevail over disproportionate interference by governments.”

Helpfully Toni Vitale, partner and head of data protection at JMW Solicitors, offers four main takeaways from the case:

1. The EU-US Privacy Shield is now invalidated so it is now an unlawful to transfer personal data to the USA using the Privacy Shield;

2. Data exporters and importers using the standard contract clauses must verify the level of protection in the 3rd country first.  The importer also has a duty to report any issues to the exporter.

3. EU data protection authorities (the equivalents of the UK’s ICO) have a new role in assessing third countries’ protection and could ban exports of data to certain countries.

4. Post Brexit, the UK could be deemed to have inadequate protection given the lack of judicial oversight over the security forces – and this could this lead to a ban on exports of data from the EU to the UK in the future.

On the latter point Mishcon de Reya Partner Adam Rose says that while this is a hugely significant decision by the European Court of Justice ;which may shape the future of global trade the impact on post-Brexit UK might be to its advantage making it “an attractive place for US companies to base operations.”

 (And as to ‘Jucicial oversight over the security forces’? Surely we can rely on Chris Grayling for that? He might not be the chair of the Commons security committee but he was an exceptional Lord Chancellor!)

LEGAL DIARY OF THE WEEK

 True and Fair?

Lawyers versus Accountants – whom do you trust more? A bit of a no-brainer this one. Unfortunately for the accountants any suggestion that EY and its mess-up with Wirecard was a one-off anomaly has been shot to pieces by the revelation this week that the FRC’s annual spot check of audit quality revealed that a third of company audits fell significantly short of the required standards. That’s up from 26% a year ago.

What makes this more sinister is that these failures are not just the result of sloppiness. In recent days the FRC has fined and reprimanded Grant Thornton in respect of ‘ethical and control standards’ in its audit work. Meanwhile the high profile scandal surrounding the auditing of Autonomy has put Deloitte under the spotlight. As Tom Snelling of Signature Litigation puts it, “This caps a dramatic five days for accountancy firms and those calling for radical change in auditor oversight.  All of this puts pressure on Number 10 to find legislative time to put the FRC’s successor, the Audit Reporting and Governance Authority, on a statutory footing.  The UK Government is understandably distracted by the impacts of the Covid-19 crisis, but that crisis could itself exacerbate audit risks, reinforcing the need to get the new regulator on the statute books.” 

The doubly troubling aspect is that this is all reminiscent of what happened almost two decades ago at Enron. That scandal resulted in the sensational disappearance of Arthur Andersen, previously believed to be the most prestigious of the Top Five accountants. And where did the Andersen accountants go? Many found fresh jobs and new starts at Deloitte.

So, yes, I think I’d trust a lawyer more than an accountant.


Your Number’s Come Up

Smiles all round at the Community Justice Fund which has just hit the jackpot following the award of a £5 million grant from The National Lottery Community Fund.

The main beneficiaries are likely to be not-for-profit social welfare law advice agencies who have been adversely affected by the COVID-19 pandemic. “We’re incredibly grateful to have secured this grant from The National Lottery Community Fund and will continue to administer grants via the Community Justice Fund to provide urgent help to legal advice charities as they face the impacts of the pandemic,” said Lord Goldsmith QC, Chair of the Access to Justice Foundation which part-sponsors the CJF.Specialist legal advice organisations are in place across the country to help people who face complex and multiple disadvantages in areas such as debt, disability, discrimination, employment, housing and welfare benefits. In this time of crisis, demand for these essential services is increasing dramatically, so support for the sector is needed now more than ever.”

Dawn Austwick, Chief Executive of The National Lottery Community Fund, added, “We’re grateful to National Lottery players for making this emergency response possible.” So keep picking those numbers.

For further information on the Community Justice Fund go to www.communityjusticefund.org.uk

Make Legal Careers Accessible

Against the background of BLM and other moves to create a level playing field for all ethnic groups and social classes PRIME (the alliance of law firms across the UK, committed to improving access to the legal profession through work experience) has commissioned the agency ‘Mykindafuture’ to deliver a series of digital workshops for students from socio-economically disadvantaged backgrounds across the UK this autumn.

The project builds on work already undertaken with a number of law firms including Brodies, DWF, Freshfields Bruckhaus Deringer and Pinsent Masons, along with support from Thorntons.

The sessions will be delivered to pupils in the top years of secondary schools living in what are regarded as the UK’s social mobility ‘cold spots’, where a lack of opportunities and awareness of professional careers often prevents young people from pursuing viable careers such as the law.

Kirstie Maclennan of Brodies’ who led the PRIME working group said “I am delighted that the hard work that went into the pilot showed what a difference several law firms working together could make and provided a springboard for PRIME to launch this major project with MyKindaFuture”.

 Meanwhile Will Akerman, Founder and MD at MyKindaFuture, explains: “We’re working with PRIME to help inspire, motivate and support young people when it comes to their career options. We want to open their eyes to the possibility of working in the legal sector by becoming a lawyer, paralegal, conveyancer or any other role that grabs their attention.

For more information, visit https://www.mykindafuture.com/ and https://primecommitment.co.uk/

Everyone happy?

It’s a good thing that more young people from a wider range of backgrounds are being encouraged to enter the law – but just how desirable a career is it? Obviously salaries tends to be much higher than the national average (apart, that is, from those who work at the criminal bar) but a recent global survey from the Mosaic Collective has highlighted that not everyone is thrilled by their work. In particular the future of the profession is a cause for concern for nearly half (49 %), with digitalisation, AI and technology given as the biggest worry (24 %), followed by adapting to change (11 %).

Meanwhile .nearly all the lawyers surveyed (94 %) are taking work stresses home with them, and just over half (51 %) struggle to talk about how they’re feeling. “In contrast to the perception of lawyers as ‘go-getters’, over a third (39 %) have no career plan and nearly 90 % feel like their manager isn’t looking out for them. Strikingly 70% say they don’t have time to make a change for the better,” says the report. Well, after Covid-19 they now might.

FLOP OF THE WEEK – UNEXPLAINED WEALTH ORDERS?

Unveiled as being the cunning new weapon in the armoury of the authorities to hit hard dodgy characters in their bank accounts, Unexplained Wealth Orders (UWOs) are starting to lose their appeal.

This follows the legal bill of £1.5 million stuck on the the National Crime Agency after an abortive attempt to impose UWOs on three London properties worth £80 million linked to a wealthy Kazakh family. “Although Unexplained Wealth Orders were hailed as a revolutionary tool in the fight to uncover alleged money laundering, they have proved costly and difficult to deploy.” commented Bambos Tsiattalou, of criminal defence firm, Stokoe Partnership Solicitors. “Ultimately, the taxpayer foots the bill and they would expect to see more bite rather than bark.”

As ever the moral should be ‘Underpromise and over-deliver’. Sadly not too much is seen of that in any aspect of public adminstrartion today. Rather like claims over ‘Best in the world’ track and trace, UWOs make good sound bites but fall short on delivery.

LEGAL TOPIC OF THE WEEK

THE NHS: NO LONGER OFF LIMITS FOR LEGAL ACTION?

Ellen Robertson-Temple Garden Chambers

The clapping is over for the NHS. Does that mean it is now fair game for legal action asks ELLEN ROBERTSON, a barrister at Temple Garden Chambers

A former NHS official has announced his plans to sue the health service after he was told that he would need to wait longer for cancer treatment due to the Covid-19 crisis.

The retired NHS trust executive was diagnosed with prostate cancer on 19 March 2020, four days before the start of lockdown. After a delay before his initial appointment with a consultant, he was told that the wait for a biopsy would be two or three months. Concerned at the delay, he opted for a private biopsy, which confirmed the tumour was aggressive. He then paid for private treatment at a cost of £20,000.

Many other patients with cancer and other serious illnesses will have faced disruption to vital treatment due to Covid-19, but it is too early to predict whether there will be an influx of claims of this nature. Gratitude and strength of feeling for the NHS may deter some, but some suffering financial loss, particularly in a challenging economy, may consider themselves without another option.

Some have called for a public debate over NHS compensation claims, with the Medical Defence Union arguing for doctors to be granted immunity from negligence claims for treatment during the Covid-19 crisis. Several US states, including New York, New Jersey, Illinois and Michigan, have passed immunity provisions. The UK has taken a different path, with the Coronavirus Act 2020 providing broad indemnity protection, rather than immunity from suit, for healthcare workers.

Will claims arising out of delayed treatment succeed? As with all clinical negligence claims, a vital question will be context – Covid-19 will not be an acceptable catch-all explanation for delays, but the standard of care expected by the courts will reflect the need for prioritisation during the lockdown. The courts will consider whether procedures were implemented to prioritise patients most in need, including whether National Institute for Health and Care Excellence (NICE) guidelines on rapid treatment were properly followed.

WEBINAR OF THE WEEK ‘ALERT’

RESTRUCTURING AND INSOLVENCY’

Wednesday 22 July @ 1.00 – 1.45 pm

The Centre for Legal Leadership will be running a webinar on ‘Restructuring and Insolvency: The Post Covid-19 Options’ to be hosted by Paul Bagon. a partner in RPC‘s Restructuring & Insolvency team. Under review will be the options available to assist businesses navigate the myriad financial challenges, potential recovery paths and opportunities in a changed economy. The topics to be addressed include

  • Restructuring v insolvency
  • Stakeholder considerations
  • Directors’ duties
  • Key measures introduced under the Corporate Insolvency and Governance Act 2020

To register contact admin@legalleadership.co.uk

ARTWORKS OF THE WEEK

DENTONS ANNOUNCES WINNERS OF ITS NINTH ART PRIZE

Untitled (Whig) by Amanda Denny

In this difficult time for artists Dentons has announced that the £5,000 prize money for its annual art prize will be distributed between all eleven shortlisted artists namely Alastair Gordon, Alexander Stavrou, Amanda Denny, Anna Freeman Bentley, Daniel Pettitt, Morris, Josh Rowell, Margaux Derhy, Osian Jenaer, Simone Mudde and Xiuching Tsay. As part of the initiative, the shortlisted artists will display their work at Dentons’ London office and are given access to expert pro bono legal advice.

Lucille De Silva, partner in Dentons’ London office, said, “The aim of the Dentons Art Prize is to support the best emerging artists with a monetary award at a crucial stage of their creative careers and to enhance the working environment of our clients and lawyers with a changing collection of cutting-edge art. In these challenging times we can only really achieve our first goal, and the Dentons Art Committee agreed with our judges that sharing the prize was the best decision we could make in order to make a difference to all the talented and shortlisted artists. Each artist is a worthy winner.”

Judge Angela Samata said, “I’m not sure a decision made by a jury I’ve sat on has ever felt more like the right thing to do. At this time of global emergency, we decided that we had an opportunity to make a small but significant contribution to all our artists, and so we decided to divide the prize money equally amongst them.”

NOTE: Download the excellent digital brochure of the winning works from the right hand column of

https://www.dentons.com/en/home/whats-different-about-dentons/an-entrepreneurial-approach-to-pro-bono-and-social-responsibility/pro-bono-in-the-uk-and-middle-east

Eclectic by Anna Bentley courtesy of the artist and Frestonian Gallery, London

Do circulate this edition of the Legal Diary to colleagues and contacts and please continue sending your stories and opinions to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Thursday July 9 2020 Lunchtime publication Edition 16

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

SHORT THOUGHT OF THE WEEK

– FITTING IN WITH RFC

The announcement by the cream of City law firms – including Allen & Overy, Ashurst, Bryan Cave Leighton Paisner, Clifford Chance, DWF, Dentons, Freshfields Bruckhaus Deringer, Herbert Smith Freehills, Hogan Lovells, Linklaters, Macfarlanes, Norton Rose Fulbright, Pinsent Masons, RPC, Slaughter and May, Travers Smith and White & Case – that they will sign up to the Race Fairness Commitment (RFC) is potentially a landmark development in creating mechanisms for monitoring and enforcing equal opportunities in the legal workplace.

Much of this new environment will hinge on the collection of data. But there is also a cultural dimension to the move. In particular the RFC includes an explicit commitment to continue to foster workplaces where BAME people can ‘be themselves at work as much as White people – without feeling the need to be inauthentic in terms of their speech or culture, simply in order to “fit in”’.

The interesting point here is that there are plenty of white law graduates – crudely characterised maybe as ‘bog-standard comp-educated kids from Essex’ – who also feel that they are discriminated against on grounds of accent, manner and origin. Historically, those who have managed – against the odds – to get through the system have done so by adapting fast to their new environment. Maybe they too will no longer feel the pressure to do so.

The Legaldiarist

THE LEGAL DIARY OF THE WEEK

Doesn’t Work For everyone

Veteran law business leader Sir Nigel Knowles is rapidly making his presence felt as the Group CEO at beleaguered DWF. Having floated on the Stock Exchange in the Spring of last year DWF was always going to be a test case for the viability and sustainability of the new model of ownership. And, to give it the benefit of the doubt, the conditions created by Covid-19 were bound to create an adverse environment.

But things did not go well and it required the smack of decisive management to stop a slide into catastrophe. Knowles’ arrival on the scene – quite literally a knight riding to the rescue – has delivered that through major cost savings and a new way of managing. As a result, this morning the firm was able to report strong trading in the first two months of the financial year and organic revenue growth of c.6% year-on-year plus other improvements. Nonetheless questions have been raised as to whether DWF has effectively pulled the plug on other floats by law firms. Maybe so for the foreseeable future. But what it really underlines is that a very different management style and culture is required. Does that suit the typical lawyer’s temperament? Right now, probably not.

Gold – Mine! Mine! Mine!

In whatever light one might regard the calamitous state of things in Venezuela it does throw up complicated legal scenarios. Hence it was that last week the courts in London decided that a hoard of gold held by the Bank of England on behalf of the Venezuelan central bank should not be handed back to Venezuela on the grounds that the presiding Maduro regime was not legitimate.

As Sarosh Zaiwalla, the British lawyer from Zaiwalla & Co. acting for the bank, observed after the judgment had been handed down, “It is very rare for a case of such international legal importance to be decided by reference to legal questions alone without taking into account the facts on the ground, and still rarer for an English Commercial Court to be told that it can only decide a question in the way that the Government says it must. This has led to the unusual result in this case that while at the same time acknowledging the UK’s full diplomatic relations with Mr Maduro’s government, the Court has also upheld as valid in England Mr Guaidó’s acts of appointment [the opposition leader claiming to be the righful President] which are considered unlawful and invalid in Venezuela.”

(Fortunately in the UK we can be content that the Supreme Court never gets drawn into political controversies of a constitutional nature – perish the thought!).

Did We Pass?

We are not out of the woods yet over the C-Virus but we are in a position to start taking stock on how well we coped with the enormous jolt to the system.

According to this week’s ‘Looking Glass’ report, from global law firm Clyde & Co and Winmark, (the professional network organisation) there is general satisfaction with how business responded to the unprecedented threat posed by the illness in terms of working practices, operating procedures and technology.

“COVID-19 has had a profound impact across the business landscape with old certainties blown away overnight.,” said Peter Hirst, Clyde & Co Senior Partner. “One of the positives to have come out of this crisis has been the ability of so many organisations to rapidly adapt, not least by shifting to remote working models and adopting new technologies. Now the immediate shift has taken place, risk management and mitigation must remain central considerations for boards and their general counsel as they seek to address the longer-term challenges and opportunities the pandemic has presented them with.” In other words the real challenge starts now.

Back to Work? Not necessarily

This morning at nine o clock BDB Pitmans ran an Employment Webinar on the grim topic of ‘Collective Redundancy Consultation – What do you need to know?’ I am afraid that I was too busy writing this to be able to join in but past experience of the firm’s seminars suggest that it would have been very thorough. After all less than a fortnight ago it ran one on ‘Back to the Workplace – the Do’s and Don’ts’.

So what has changed since? Maybe the Chancellor’s largesse from yesterday wasn’t quite as generous or comprehensive enough to allay fears that large scale lay-offs are just around the corner.

And, er – what happens next?

Following the revelations of what has been going on at Wirecard in Germany their auditors EY, the creative accountancy firm formerly known as Ernst & Young, is facing all kinds of trouble. But it has also resurrected the old debate about the need to separate out auditing from consultancy services. This goes back for two decades or more and was brought to life originally around the time of the collapse of Enron whose auditors then were Arthur Andersen.

Andersen also had a law firm and it seemed at the time that everything was lost. But not quite. On both sides of the Atlantic Andersen has come back to life and in Europe, of late, it has been operating under the brands Andersen Tax, Andersen Legal and Andersen Tax & Legal. However with perfect timing these have now announced that they will ‘demonstrate the unified and seamless approach of the global tax and legal firm’ by just operating as Andersen.

“Our common brand, Andersen, is reflective of our ‘one firm’ culture and encompasses all that we do as a global organization,” said Mark Vorsatz, Andersen Global Chairman and Andersen CEO. “It signifies our ability to provide best-in-class service and our deep commitment to investing in our people.” What was it that someone once said about history repeating itself?

ARTWORK OF THE WEEK – SOOYOUNG CHUNG

at DLA PIPER

Consultant Cornelius Medvei, who has largely selected and coordinates the extensive art collection at DLA Piper, introduces Royal College of Art graduate Sooyoung Chung whose work now hangs in the firm’s Aldersgate Street office.

 “I chose this artist as her work has resonated particularly strongly with everyone in the office, clients and staff alike,” explains Cornelius Medvei. “These two pieces were some of the first pieces we bought – from her degree show at the Royal College in 2018 – to add to our collection in anticipation of the move to 160 Aldersgate Street. We hang them together and they complement one another very well.” 

Sooyoung Chung’s practice considers prosaic architectural spaces and the everyday objects that  fill them. Her painting ​Monday ​ depicts cardboard boxes and office envelopes atop a cluttered  desk, hinting that someone has just left the room in the middle of working. Meanwhile ​The Other Space  Confirmed Bachelor ​ is populated by keys strewn on a table, coffee cups, bananas and pills. The  seaweed of a decorative aquarium is visually coupled with the design of a vacuum cleaner  hanging on a wall. Her painterly style shifts from the hyper-realistic to the graphically stylised and  she flattens out space to create depthless, motionless scenes.  

 “I look at things around me,” says Sooyoung. “I observe objects around me. I observe the silence of things in  front of me. I sometimes think that the beings of silence wander in the air and rest for a  moment in the things [they pass]. It is as if the soul was swallowed by another’s body.” 

Please keep sending your stories and images to fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Thursday July 2 2020 Lunchtime publication Edition 15

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

SHORT THOUGHT FOR THE WEEK

Thirty-three years ago this week, the Legaldiarist started writing about law firms and the legal world. A review of the diary of that time shows thataside from Simmons & Simmons and Slaughter and May all the law firms featured in those first few months have now disappeared. So while the overall trajectory for the law business has been upwards bigger, more international and more diverse many firms have found it a difficult path to tread.

Right now that path has become even more slippery and steep. No one knows any longer the formula for long-term survival. To coin a phrase, ‘Stay Alert’ is about as wise as one can get. But, also, to read a headline in the legal press this week that announces ‘Andersen Global Enters Caribbean with Collaborations in 4 locations’ demonstrates that, sometimes, there can be life after (seeming) death.

The Legaldiarist

In the week’s edition

+ The Legal Diary

+ Artworks of the Week at Travers Smith

+ Locations of Legal London – Temple Bar

p.s with Summer now here The Legal Diary is scaling down somewhat for the next few weeks – but do, please, keep sending in your stories.

THE LEGAL DIARY

Lock ‘Em Up

It’s a big day today in the fight by the determined campaigner Simon Dolan to overturn the government’s lockdown strategy as the High Court hears an application for permission to seek Judicial Review.

The nice irony, of course, is that because of the lockdown the hearing will take place via video link and not physically in the High Court. Anyone who wants to observe the proceedings will only be given Skype access at the discretion of the judge. So what about justice being seen to be done? But compounding the irony is that the lock-down is about to be lifted – at least partially in England- on Saturday. So if Mr Dolan and his team are successful they can – if they wait 36 hours – go out and celebrate in some suitable hostelry. (How long, incidentally, before a certain pub is re-branded as ‘The Whig and Keyboard’?).

But, jokes aside, these are serious issues which are setting precedents for the future. How far should democracies succumb to arbitrary restrictions on freedom to travel and socialise? So a lot hangs on the jousting today between Philip Havers QC for Mr Dolan and, probably Sir James Eadie QC, the Government’s counsel. Like the virus itself the case might be microscopic but the ramifications to the body politic are enormous.

You Take the High Road

Yesterday the Supreme Court ruled by a majority of 3 to 2 that Mr Charles Villiers – who is related to the Duchess of Cornwall – would not be allowed to have key aspects of his divorce from Mrs Villiers heard in Scotland. Instead they can go to England. Mr Villiers’ motive, it is fair to say, is that England’s courts tend to be much more generous than those in Scotland to wives. But, significantly, the only element in the divorce to go south are the maintenance arrangements. “This “loophole” that the wife has successfully found is linked to the EU Maintenance Regulations but is embodied in domestic law as part of the jurisdictional interplay with Scotland,” commented Julian Hawkhead of Stowe Family Law.

Of course everything these days is viewed through the lens of either Scottish independence or Brexit. Or in this case both. As Laura Burrows of Collyer Bristow points out, Lord Wilson – the court’s most experienced family judge and part of the dissenting minority – was moved  to pen “A  highly unusual postscript to his judgment that is searingly critical of the ramifications of the majority decision. The tactic used by the wife in this case is only applicable between England and Wales, Scotland and Northern Ireland and is likely only to be available until 31 December 2020, upon Brexit being finalised.” How this will impact on Scottish wives who are eyeing up divorce to vote in IndyRef2 remains to be seen.

Hidden Gold in overlooked IP?

All sorts of special measures linked to Covid-19 are now starting to see their horizons looming with a hint/nudge/shudder that ‘normal’ life is about to return. One of the most overlooked deadlines, probably, is the ending of the special ‘interrupted days’ period introduced by the UKIPO at the start of the Covid crisis. This had the effect of extending the application dates for patents, supplementary protection certificates, trade marks and designs. And a jolly good thing it was too. But July 30 now looks likely to be the date when it’s back to the old regime.

Never one to waste a good deadline Joe Dearing of Global Intellectual Property Solutions at UnitedLex and his new pal Patrick Woolley, IP Department Chair at Polsinelli, are now encouraging in-house lawyers to take advantage of this prompt and make more of their IP assets to help their companies through the Coronavirus-challenged economy. “Smart Intellectual Property investment and management is one of the levers GCs can pull to successfully deliver new revenue opportunities,” they say, pretty much with one voice as their two organizations have come together blending Polsinelli’s patent experience with the ‘workflow engineering’ of legal services company UnitedLex.

Mind you, it hardly needs to be said that probably the most valuable IP in the word right now lies in a cure for this Covid-19 virus. Does one of your clients have the next dexamethasone? Worth checking out.

Computer Says ‘No Comment’

Channel 5 ran a fascinating documentary on Tuesday evening about the Harold Shipman case ‘Five Mistakes which caught a Killer’ (OK, it was a repeat but isn’t everything these days?). One of these mistakes related to Shipman’s attempt to edit the case records of his victims on his GP practice’s computer. The IT specialist police sergeant who caught him out declared triumphantly on camera “The computer doesn’t lie.”

Ironically that was exactly the same claim made by the Post Office in its pursuit of the sub-postmasters whom it alleged had been fiddling their ‘books’ on the Horizon computer system. But whereas the police were right about Shipman, the Post Office authorities could not have been more wrong over the sub-postmasters. The Horizon system was plagued with malfunctions.

As previously reported in this blog, sorting out the horrendous consequences has been – like Windrush – long drawn out and still continues. The latest developments include 45 (or more) of these cases being referred by the Criminal Cases Review Commission (CCRC) to the Court of Appeal. The CCRC says there was an “abuse of the process of the court” by the Post Office. A further 900 prosecutions have now been referred by the Post Office for review to a specialist crime law firm.

The good guys in this are Aria Grace Law which is working as part of a pro bono team (including also Paul Marshall, a barrister at Cornerstone Barristers) on behalf of a number of people appealing their convictions. I bet their computers have a clean bill of health.

 ARTWORKS OF THE WEEK – TRAVERS SMITH

BELLA HALL, SORIN BOGDAN SOFIAN and OSARETIN UGIAGBE

Bella Thorn’s winning work ‘Thorns of Christ’

Notwithstanding the C-Virus restrictions Travers Smith LLP has persevered with its annual CSR Art Programme featuring artwork by students from the University of Westminster and the Royal College of Art (RCA).

And last week they announced the winners from this year’s selection. Admittedly it was not through the usual process of intensive face-to-face discussion by the judges. Instead the panel, consisting of Natalia Grabowska (Assistant Curator, The Serpentine Galleries), Nemo Nonnenmacher (CSR Art Programme alumnus and Associate Director of Unit 1 Gallery) and Alex Deveruex (Artist) had to confer virtually to decide the winning artwork and artists from a selection of 57 shortlisted pieces.

So the winners are Bella Hall, (University of Westminster) who received a prize for her “Untitled Blue” and “Thorns of Christ”, an abstract series of paintings exploring the formal elements of painting along with Osaretin Ugiagbe, (RCA) for his piece “Heads 2018-2019”, which aims to re-address the tradition of portraiture.

In addition Sorin Bogdan Sofian (University of Westminster) was announced as the winner of the popular vote, which was open to everyone who works at Travers Smith, for his series of striking photographs titled “The Last Place on Earth”.

All three winning artists have been awarded £2,000 to support them with their transition towards professional practice.

Staff Involvement

Engagement by the firm’s staff in the exhibited works is crucial to the project’s success. “Sorin’s landscapes are a complete contradiction,” said one staff member. “On first viewing they are beautiful abstracts until you realise what he has photographed is the result of the shocking environmental damage caused by chemicals used in the local mining industry. The surreal images of the submerged church and yellow river are counterpointed by portraits of smiling locals. A really powerful set of thought provoking images that stay with you long after you have seen them.” Meanwhile another added, “I really enjoy the CSR programme. It draws together people from right across the firm and it was really interesting to view lots of different works and shows.  It’s fantastic the firm helps to support emerging artists and it’s a pleasure to walk around the office viewing gallery standard art every day, I never tire of seeing it.”

Sorin Bogdan Sofian‘s ‘The Last Place on Earth

Commenting on this year’s event Travers Smith’s CSR Partner Donald Lowe, said, I am delighted that our judges were able to come together virtually to choose this year’s winners, and many congratulations to all the students that have been awarded a prize. Now in its fifth year, we are extremely proud of our CSR Art Programme and the way in which it emphasises our commitment to CSR from the moment someone enters our offices. As a firm, we remain fully committed to nurturing artistic talent and supporting the participating graduate artists as they transition from student life to professional practice.”

 Rounding up, the judges Natalie Grabowska and Nemo Nonnenmacher praised the initiative saying, “Over the years, through their CSR Art Programme, Travers Smith has manifested its commitment and dedication to contemporary art by focusing on promoting and supporting emerging artists. This programme is even more remarkable this year, when many art organisations and networks are readjusting to the changed reality. We have a huge respect for Travers Smith for striving to go ahead with this programme, as it is a support mechanism for emerging artists evermore needed in these demanding times.”

Osaretin Ugiagbe‘s ‘Heads’

LOCATIONS OF LEGAL LONDON

In the second in an occasional series about key places of legal significance to London Daniel Dodman of Goodman Derrick LLP reflects on Temple Bar.

The Royal Courts of Justice are perhaps one of the most recognisable legal buildings in London.  They are regularly besieged by camera crews who accost the victors and losers of various legal battles and its grand gateway sits prominently in the public perception of the English legal system.  But the immediate surroundings to the Court weren’t always as they are now.

Very close to the entrance to the RCJ sits the location of the original Temple Bar which marked one of the first entrances to the City.  Built in its earliest form in 1351, shortly after the Black Death and housing a prison above it, the gate was further renovated for the coronation of Anne Boleyn. Her daughter, Elizabeth I, passed under it to celebrate the destruction of the Armada. 

Sir Christopher Wren built the final version of the gate in the 1670s and it was regularly used as a place to exhibit the heads of traitors (telescopes could be hired for those wanting to get a better glimpse of the offenders’ remains).  Bizarrely, it is also one of the first examples of flat pack building, having being removed in 1878 to assist with the traffic flow near the Royal Court of Justice.  It was resurrected in an estate in Hertfordshire where it stood for 100 years slowing falling into disrepair. 

 Fortunately in 2004 it was returned to the City newly polished and installed next to St Paul’s at the entrance to Paternoster Square.  It looks so at home there that I wonder how many people getting their Pret sandwiches realise its remarkable history.

Although we will be slimmed down for the rest of the Summer please continue sending in your stories, comments, circulate to your colleagues and, even, register as a follower.

Write to fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Thursday June 25 2020 Lunchtime publication Edition 14

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

SHORT THOUGHT OF THE WEEK

– SINS OF THE FATHERS

It should come as no surprise to anyone who knows anything about British economic or political history in the period 200 years ago that law firms were complicit in the slave trade. Slavery was both big business and was legal and so it needed lawyers. How culpable we should regard the heirs to those firms today is a moot point.

But the question it does raise is the moral choices made by lawyers now about whom they take on as clients and the transactions they undertake for them. Rest assured, our descendants a century or so ahead will be making judgements about our conduct. To argue that a client is acting perfectly legally might not stand up in the court of public opinion in 2120. But then, you might ask yourself, does that matter?

The Legaldiarist

In this edition

+ WEBINAR TO WATCH THIS WEEK

+ LEGAL DIARY OF THE WEEK

+ APPOINTMENT OF THE WEEK: EOIN O’SHEA AT CMS

+ LAW BUSINESS INSIGHT OF THE WEEK : AI IS COMING

+ CSR INITIATIVE OF THE WEEK THE COMMUNITY JUSTICE FUND

+ LEGAL COMMENTARY OF THE WEEK: TELEMEDICINE

+ ARTWORK OF THE WEEK : PINSENT MASONS

+ PLACE IN LEGAL HISTORY OF THE WEEK – THE OLD BAILEY

——————————————————————————————————-

WEBINAR TO WATCH THIS WEEK

TONIGHT – ‘THE FRAUD FACTOR HALF HOUR

A lively webinar this evening 6pm-7pm hosted by Keith Oliver, Head of International at specialist business crime law firm Peters & Peters and featuring the Right Hon Lord Briggs of Westbourne, Justice of the Supreme Court along withJane Colston (Partner at Brown Rudnick) and Mona Vaswani (Partner at Milkbank)  who will debate the key fraud issues of the moment. 

“There isn’t a confirmed agenda as the desire is to  get straight to a candid conversation about things these market leaders are seeing first-hand,” says the organisers. “What are the regulators missing? Who’s the regulator got its eye on? Are we anywhere near keeping tabs on fraud during lockdown? 

 The session will be interactive so it welcomes ‘guest appearances’ from the audience. Sounds as if it could be fun as well as informative.

Join by phone via +44-20-3198-8143 (UK) and use the access code 160 772 9141

LEGAL DIARY OF THE WEEK

Burford sets precedent in deal with PCB

Thenews yesterday that Burford Capital, the world’s largest litigation funder, has become an equity stakeholder in PCB Litigation LLP, the leading specialist dispute resolution firm, represents a step of enormous importance in the evolving relationship between lawyers and those who invest in their cases.

In the first ever move of its kind, Burford’s tie up with PCB is a powerful endorsement of the law firm’s reputation. Not only will Burford finance a portfolio of matters but it will also to take a 32% equity stake in the firm’s success overall as a part of agreeing to make capital available. This novel structure has been in train since last year and has been approved by the Solicitors Regulation Authority (SRA). PCB has now converted to an ‘Alternative Business Structure’ (ABS).

“We have spent some time working on this and in some ways the importance of the deal has grown as a result of Covid-19, “ said Anthony Riem, PCB’s Managing Partner. “The idea behind it was to leverage off our respective top tier legal and financing expertise in dealing with fraud, asset recovery and distressed debt so as to offer world class solutions to clients in these areas and in dispute resolution generally especially in relation to insolvency and white collar crime. Distressed debt was already a huge issue before Covid-19 and will be even more massive as a result of it.”

 Riem went on to highlight two features of the present crisis for business. “The first is that there are those who are taking advantage of the current situation now by committing fraud while there are others who may feel compelled to do so to keep their businesses alive. The second point is that creditors and victims of fraud are going to be looking for help to fund those claims. We believe that with Burford now having taken an equity stake, we are best placed to help.”

Don’t Bank on It!

Things are hotting up in the case of Banco Central de Venezuela (BCV) v The Governor and Company of The Bank of England and will come to the boil today on the final of four extraordinary days in the High Court.

It is, to put it mildly, a complicated case. Or, if you approach it from the other end, dead simple.

“Why are we in this court at all?” asked Mr Vineall QC  instructed by Zaiwalla & Co. on behalf of the BCV. “Well, we are in this court because, on the one hand, the Bank of England and, on the other hand, Deutsche Bank, both of whom for present purposes are undoubtedly in this jurisdiction, need to know, as between two competing claimants, both of whom claim they represent the BCV, which they are to give the money to.  That’s what this case is about.  To characterise it as being essentially about things in Venezuela seems to us just to be utterly artificial.”

At stake is a pile of gold which the Bank Of England has been kindly looking after on behalf of the BCV – and thereby, possibly, its government. The problem is, as anyone who follows South American politics knows, that there is a bit of a dispute at the moment about the status of that Government. Or indeed anyone claiming to be the Government.

As ever these days the C-virus is game changer. The BCV says it wants the gold back to spend on fighting the virus – so let’s not allow politics to get in the way. Or as Sarosh Zaiwalla, senior parter of Zaiwalla & Co. puts it, “Venezuela has been denied access to its resources during an international crisis. In effect, the nation’s gold reserves in the BoE are being held hostage to political factors dictated by the foreign policy of the United States and certain of its allies. In the meantime, there is a very real risk that the people of Venezuela will suffer.”

Sadly they are likely to have to suffer for some time longer. “We expect Mr Justice Teare to withhold judgment to allow him to properly consider the many authorities that have been cited in the last couple of days,” commented a source close to the case. Meanwhile the golden dream goes on.

Sarosh Zaiwalla, Senior Partner of Zaiwalla & Co.

Well Noted

In the light of the Bank of England story above I have to mention another curious case involving a far away country. This time the focus is on De La Rue PLC, a long time supplier of bank notes to the Bank of England but which also does a healthy amount of business for other governments. Of late, however, it has been under scrutiny by the Serious Fraud Office for its activities in South Sudan.

What could it have been up to? Well nothing very much apparently because after eleven months the inquiries have been halted. “News of the SFO having dropped its investigation into De La Rue PLC’s activities in South Sudan will come as a welcome relief for the embattled banknote printer,” said Neil Williams, Rahman Ravelli’s Legal Director.

Actually less than a year represents quite a quick decision by the SFO. “This announcement also suggests that the SFO is working to free up resources,” continued Williams, “presumably in anticipation of an increase in activity as it unpicks the wrongdoing that been committed by those who have sought to gain advantage during the pandemic.”

De La Rue’s share prices surged following news of the investigation’s closure – a clear reminder of the destabilising impact that an SFO investigation can have on a business. You might say it now has a licence to print money.

WFH – Really?

According to a story elsewhere in the legal press this week a ‘well-respected Mexican IP lawyer’ at Basham, Ringe y Correa died suddenly of a heart attack at age 44. Obviously very sad for him and his family. But also for his colleagues in the office who blamed the long hours culture – and, who knows, maybe presentism – of working from home.

Well maybe it’s different in Mexico but the general view during recent weeks over here seems to be that – unless you are also dealing with young children in lockdown – WFH is better for productivity and for your general state of mind. Maybe the reality is that – home or away – being a lawyer is a stressful activity. You need to keep a cool head, wherever you are, to make it work.

APPOINTMENT OF THE WEEK:

EOIN O’SHEA, HEAD OF WHITE COLLAR CRIME, at CMS

White collar crime is one of the hottest and fastest growing areas of the law right now with fraud expected to surge in the aftemath of the C-Virus pandemic. As Guy Pendell, Head of Disputes at CMS comments “There has been a huge amount of movement and growth in the Corporate Crime & Investigations space over the last five years. As such, we have identified this as a high-growth area and an important focus for the team.”

So the appointment of Eoin O’Shea as Head of White Collar Crime in CMS’s Corporate Crime practice – which he will lead alongside partner Omar Qureshi, Head of Corporate Crime – is an important development for the firm.

White collar crime is one of the hottest and fastest growing areass of the law right now with fraud expected to surge in the aftemath of the C-Virus pandemic. As Guy Pendell, Head of Disputes at CMS comments “There has been a huge amount of movement and growth in the Corporate Crime & Investigations space over the last five years. As such, we have identified this as a high-growth area and an important focus for the team.”

With years of recommendations in Chambers and Legal 500 O’Shea is the author of a leading textbook on the law of bribery. Add to that being the Chair of the City of London Law Society Corporate Crime Committee it is no surprise that he has been has been praised for being “fiercely passionate about the rule of law”.

”We are seeing an increase in demand for new and evolving streams of work, particularly in the investigations space, “ said Omar Qureshi “Eoin’s impressive experience and proven track-record will be of real benefit to the team and our clients, enabling us to better respond to their evolving needs and I look forward to working alongside him.”

Impact of the Bribery Act —

Bearing in mind that the Bribery Act has recently marked its tenth anniversary the Legadiarist asked O’Shea whether it had made much difference in practice. “The Bribery Act has had a very significant impact on business,” he said. “It has shifted the Overton window [ that is the ‘range’ or ‘window’ of policies that the public will accept.] as to tolerable corporate conduct, and over a very short period. The spread of corporate anti-bribery procedures has definitely prevented some potential bribery, and the broader changes to corporate culture have triggered major policy decisions by boards and investors.

Of course bribery still happens, O’Shea continued. Enforcement is critical but has, in the UK, been patchy. “Enforcement against companies (in the form of Deferred Prosecution Agreements) is now common. The prosecution of individuals is far more problematic for agencies such as the SFO. But we should remember that, twenty years ago, foreign bribery was hardly being investigated, let alone prosecuted.  “

Across the wordl organisations such as the OECD and other agencies see the UK Bribery Act as a model, says O’Shea. “Reforms and improvements to the laws of other countries have stemmed from a global movement towards transparency and against corruption. That movement both gave rise to the Bribery Act and was, in due course, given momentum by it. It also facilitated international cooperation between law-enforcement on major corruption cases, a trend which is likely to continue.”

LAW BUSINESS INSIGHT OF THE WEEK

AI is coming – but it should not be feared

by ANDY MOSEBYCorporate Partner at Kemp Little

Before the COVID-19 pandemic, a number of AI and machine-learing software products had been released, each designed to increase the efficiency of legal processes. Many of these were built to aid contract review, particularly for M&A transactions. Without the use of software tools, a buyer waiting to understand the value and risk associated with a target’s revenue-generating contracts but have little choice but to instruct a team of lawyers to review each agreement. AI was heralded as a method of transforming this due diligence process. However, in reality, most forms of this technology are still fairly rudimentary.

It’s not hard, though, to see how useful the next generation of AI tools could be for deal-makers. As we’ve seen over the last six weeks, fortunes and financial forecasts can change rapidly; for most businesses contemplating a sale or looking to raise investment during the UK’s lockdown period, the result has been a slow-down, with many deals in limbo until buyers or investors can more accurately predict how the effects of COVID-19 will impact the target business. In such circumstances, AI-powered real-time data analysis could help deal-makers make informed decisions faster, without the need to put transactions on hold.

Even though the country has started to come out of its lockdown state, we anticipate there will be far greater use of software tools aiding remote working, such as collaboration portals between lawyers and their clients. We’ve also seen how useful technology and data analytics which aids contract analysis can be in a crisis situation. Businesses not employing such tools have found it difficult to respond quickly to questions around how robust their revenue-driving contracts are in the face of potential supply-chain disruption or renegotiation by customers facing working capital difficulties.

Clients interacting with lawyers –

There are a lot of interesting developments happening across the lawtech sector involving a number of suppliers and law firms. Whilst areas of focus differ at Kemp Little we believe that the most transformative tools are not simply those which enable lawyers or client deal teams to work more efficiently.

We have developed internally a number of software products which look to change how clients interact with their lawyers. Across the industry, billions of pounds are still being spent on complicated legal advice given by humans, yet this is rarely captured in any way which allows for future searching or tailoring. Software can be used to database and store legal advice in a way that means it is memorialised and can be updated in a tailored way to all that may need it in the future. The aim is that this will democratise the advice and save significant amounts in fees for repeat work.

We have also built a product which uses new technology to provide a service which simply wasn’t possible until now: monitoring the whole web for design infringements, and filtering the list of millions of potential results down to the couple of hundred real infringements, using advances in AI-vision. Using software to provide a more efficient legal service is already a given. What interests us is how cutting-edge technology can be used to fundamentally benefit our clients’ operation of their business and how they use their lawyers.

CSR INITIATIVE OF THE WEEK

– THE COMMUNITY JUSTICE FUND

Legal advice charities from around the UK are benefiting this week from grants worth over £1.8 million awarded by the Community Justice Fund.

The Fund was set up by the Access to Justice Foundation and five other leading social justice funders to help not-for-profit legal advice organisations be effective and sustainable in the face of responding to COVID-19.

The grants vary in value from £10,000 to £75,000 and have been awarded to 35 charities supporting disadvantaged and vulnerable people across the UK, in areas such as disability, employment, housing, immigration women’s rights, benefits, debt and welfare. They are intended to enable the organisations to respond to challenges arising from the current pandemic.

The charities whoch have been awarded grants include Child Poverty Action Group, Disability Law Service, Brighton Housing Trust (BHT), Welsh Housing Aid (trading as Shelter Cymru), Mary Ward Legal Centre, JustRight Scotland, Just for Kids Law, Norfolk Community Law Service Ltd (NCLS), Advice on Individual Rights in Europe Ltd (The AIRE Centre) and Independent Provider of Special Education Advice (IPSEA).

“We have tried to make the application process as straightforward and streamlined as possible to provide the vital financial support that the not-for-profit legal advice sector needs as quickly as possible”, said Ruth Daniel, CEO of the Access to Justice Foundation. “We are working hard to issue multiple grants every week and strongly encourage applications from specialist legal advice charities across the UK who need urgent and flexible financial assistance to stay open and sustainable at this time of crisis.”

For further information on the Community Justice Fund, to donate, or apply for a grant, visit www.communityjusticefund.org.uk.

LEGAL COMMENTARY OF THE WEEK: TELEMEDICINE – THE THREAT OF DATA BREACH

With the C-virus prompting a new way for patients to consult with their doctors it is vital the technology complies with the law, says RAUL KALLO, Chief Executive Officer, Viveo Health

A recent McKinsey survey revealed that 76% of people globally would prefer their doctor’s appointments to be virtual and the predictions are that online healthcare interactions could surpass the one billion mark by 2025. While phone and video calling has become more common between doctors and their patients, we are seeing a growing risk of major data breaches such as with Babylon Health earlier this week where users of the service were sent videos of other people’s consultations.

In order to maintain the highest standards in telemedicine, platforms need to be designed so that the risk of personal data leaks is reduced to the absolute minimum. End-to-End encryption (E2EE) – where only the communicating users can read the messages – offers one solution to this problem. By using E2EE encryption in all communications between patients and doctors, data is secured and doctor-patient confidentiality standards can be upheld.

Importance of Compliance —

Compliance under HIPAA (the American ‘Health Information Privacy and Portability Act’ ) and PCI DSS 3.2 (the Payment Card Industry Security Standards Council) needs to be inbuilt into any telemedicine platform from the ground up. Perhaps the most important area of compliance, however, is with the Regulation (EU) 2016/679 of the European Parliament on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR, General Data Protection Regulation). We have already seen fines issued from the ICO to those failing to comply, so inbuilt security must become the norm in every sector, not just telemedicine.

Data protection and GDPR compliance can only be guaranteed when a telemedicine service is provided solely through a secure platform (often called a health portal). Inside such health portals, doctors should be allowed to access only the health records of those patients that they themselves are consulting with. When signing up for the telemedicine platform, each patient is given a unique strong password, and every time the patients enter the platform, they use a secure login with this same strong password to maintain the highest security standards.

From a technology perspective quality assurance is also a key factor that must be given due consideration. Very strict QA processes that are undergone with transparency between all areas of a business are essential to ensuring that new features and updates to software do not damage the quality of service in any way. Proper communication between departments ensures that testing is only carried out in the most careful conditions; this is the key to preventing occurrences such as the data breach experienced by Babylon Health.

PHOTOGRAPHY BY STUART FRANKLIN

AT PINSENT MASONS

ARTWORK OF THE WEEK

During Covid-19 we have witnessed a renewed appreciation of parks and green spaces with many of us dependent on them to provide some much-needed relief mentally, physically and emotionally, writes MAGGIE O’REGAN of InSitu, the art consultant to Pinsent Masons.

Within the art collection of Pinsent Masons there are a number of pieces which celebrate nature and our connection to it, specifically the extraordinary landscape series ‘Narcissus’ by Magnum Photos photographer Stuart Franklin.

Partner and Head of the Pinsent Masons art committee, David Isaac says ‘During lockdown we have all been forced to re-engage with the natural world. Nature has always been around us but until now modern life hasn’t easily allowed us to acknowledge that fact. Franklin’s work is an exception. The playful way in which he turns his stunning images of Norwegian fjords into human form have always been a reminder to us that we are part of nature and that it is never far away”. 



Image Narcissus: Stela I 2010, (copyright 2020 Stuart Franklin Magnum Photos)

Scandi Noir (et Blanc) —

‘Narcissus’ is a collection of landscape photographs taken by Franklin over a five year period in the region of Møre og Romsdal on Norway’s western fjordland. Beginning in 2009, Franklin bought a cottage by a lake on the island of Otrøya, spending a great deal of time there over the following years. These tranquil, contemplative, anthropomorphic and introverted landscape photographs time and again seek references to human beings.

Long associated with landscape photography, Franklin engaged with the subject from as early as the mid 1970’s when he explored the landscape of Thomas Hardy’s Dorset. Later, during the 1980’s he was drawn – but as more of a documentary incentive – to the post-industrial landscape of Alsace-Lorraine and northern England. Franklin has documented the rapid changes in the European landscape, culminating in his book ‘Footprint: Our landscape in Flux’ (Thames and Hudson, 2008). Other publications include ‘The Time of Trees’ (1999 Leonardo Arte, Milan) which examines the social relationship between nature and society.

Photography in one place —

Franklin’s trip to Norway followed a busy period of assignments and three years as Magnum’s president. The remoteness of the Norwegian location provided him with space and time to think which enabled the development of a more personal and subjective approach to landscape. Franklin acknowledges the change in his approach as a backing away from political engagement and the work highlights that time taken to slow down, to think, to reflect, to photograph in one place is still a political as much as a creative act.

POST SCRIPT: FIRM SUPPORT FOR YOUNG ARTISTS

The Covid-19 pandemic has left art college graduates grappling with no access to workshops, ‘virtual’ degree shows and uncertain career prospects. So for the remainder of June and throughout July, Pinsent Masons art consultant, Maggie O’Regan of InSitu, is providing free online consultations for the sector via the Instagram @insitu_art_consultants.

PLACE IN LEGAL HISTORY OF THE WEEK

– THE OLD BAILEY

In the first in a new occasional series Dan Dodman, a Partner at Goodman Derrick LLP, reflects on the story of the Old Bailey site and its grim history

Dare you enter in?

The Old Bailey (or the Central Criminal Court as it should properly be called) is probably the single most famous legal building in London.  It’s the site of many of the most notorious cases in the Country (Oscar Wilde’s criminal case, Dr Crippen, Lord Haw-Haw, Christie and Peter Sutcliffe to name a few).  However, what is rarely remembered is that for 800 years it was also location of Newgate Prison. 

This had an equally illustrious list of prisoners as the Old Bailey (Titus Oates and Daniel Defoe) but was also the location for major criminal executions from the late 18th century onwards.  Scaffolding sat on the Old Bailey street and those to be executed climbed on to it having gone through the exit on Newgate Street.  The crowds attending were huge, many people died in 1807 when a crush developed during one of the hangings.  The last public execution in Great Briton took place outside the walls of the prison in 1868 but the killings would continue behind closed doors until 1902 (1,169 died in total). 

The prison has also entered literary history with Dickens visiting it on a number of occasions and becoming somewhat obsessed with it.  Newgate features in Barnaby Rudge and Great Expectations.    It’s also the location where Fagin waits for his comeuppance in Oliver Twist, not far from his den in Saffron Hill. 

The Old Bailey now stands as a testament to how far law and order in this country has progressed but perhaps also a reminder that things can continue to improve. 

The Bailey’s Dome still dominates the surrounding buildings

Have you a legal story or insight for publication?

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Edward Fennell’s LEGAL DIARY

Thursday June 18 2020 Lunchtime publication

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

WELCOME LLM !!

ANNOUNCING THE LEGAL DIARY’S

new LISTING for LEGAL MEDIA service (LLM)

One of the game-changers from the C-virus emergency is that webinars, zoom meetings as well as use of video, podcasts and blogging have all accelerated. The quality is still very variable and all styles are catered for but, suddenly, lawyers and their clients, law departments and other law-related organisations can share opinions and expertise as never before.

To help make more people aware of what is on offer The Legal Diary is shortly to publish regular weekly listings of new product. So if you want the widest possible audience to be aware your latest video or webinar or read your smart new blog just go to

and complete the form

SHORT THOUGHT OF THE WEEK

– DEMOCRACY Versus COMMUNITY?

The rights and wrongs of legitimate ‘direct action’ versus legal due process was brought into sharp focus by last week’s scenes in Bristol. But it is happening across the continents.

This week in Albuquerque, New Mexico there were violent scenes around a controversial bronze statue of Juan de Oñate, a Spanish conquistador who governed the region of ‘New Spain’ and who represents the arrival of Spanish settlers in the 1590s. Removed, temporarily, ‘for its own safety’ the statue’s future is now up for debate. In a significant statement Dr. Shelle VanEtten Sanchez, director of the Albuquerque Cultural Services Department, observed “This has to be a community-led process for us. It has to be a dialogue that’s rooted in the cultural traditions and very diverse heritage of this state. We don’t want it be a democratic process; we want it to be a community dialogue that’s authentic, that’s about healing, and talking about our shared past and our present.”

The row has pitted three groups of minorities against each other – Hispanics, indigenous peoples and people of colour with a fourth minority, the police, trying to hold the line. Whether a community-led process will be any better than a democratic process (backed by the law) will be interesting to see.

THE DIARY OF THE WEEK

Cummings Must Fall

One man determined not to let Dominic Cummings evade the long arm of the law over his cavalier disregard of the lockdown is former senior Crown Prosecutor Nazir Afzal who is backing the campaign demanding that Cummings’ goings-on should be investigated. In what sounds like a measured statement (or hugely provocative depending on your point of view) Afzal says, “The big divide was never between leave and remain, nor black and white, nor men and women, nor north and south. It’s between those with power and those without. The power differential is the greatest cause of inequality……My experience tells me that there have to be consequences for law breaking otherwise the public lose confidence in those meant to enforce the law, and lose trust in the law itself.”

Mike Schwarz of solicitors Hodge Jones & Allen and Counsel Matthew Ryder QC of Matrix chambers have been instructed by Nazir Afzal to “get to the bottom of what happened, and why and better understand what the police in Durham and London knew and what drove the decision making.”

In the unlikely event that Cummings were ever to be prosecuted it would, presumably, be clear evidence that the power has shifted.

Princely Power?

One would hesitate to compare Dom Cummings with Prince Andrew – but somehow the temptation is irresistible given that both may or may not be facing awkward further interviews with the police. However Nigel Cawthorne, author of PRINCE ANDREW: EPSTEIN AND THE PALACE (out this month published by Gibson Square) has this to say about the Prince’s legal predicament.

 “The Epstein investigation in the UK has reached an unprecedented stage. After US Attorney General William Barr’s public request on Fox News that Prince Andrew ‘give some evidence’, we now know that the highest office in the US is running the negotiations with the prince’s legal team. As the New York Attorney Geoffrey Berman seems no longer to be the one calling the shots, it is not clear that complaining publicly about Berman will help the prince’s case if Berman is now merely the messenger. The centre of gravity of the investigation has evidently moved to Washington DC and it would seem the prince’s team needs to rapidly adjust and align their legal and PR strategy to the new situation.”

Whoever thought the ‘Special Relationship’ was dead. It’s alive and very much KICKING.

Naughty Mis-Step

It is always a bit of shock when very large, high profile organisations do not follow the rules or manipulate possible grey areas of the law to their own advantage. But, there you are, it happens. Regularly.

Two examples of this have stuck out over the past few days. First, the decision by the Supreme Court that Mastercard had been guilty of restricting competition when it set multilateral interchange fees (“MIFS”) on retailers. The result meant that Sainsbury’s had been correctly awarded about £68m in competition damages back in 2016 and now hundreds of other businesses are likely to make a similar claim

“This judgment not only confirms that the setting of MIFs is a restriction of competition,” said Rob Murray, the Mishcon de Reya Partner who represented Sainsbury’s, “but it also sets out requirements for any possible exemption, and the test for whether any unlawful payment is pass-on to another party which may then have a claim.” So that’s them sorted.

Maybe more shocking though was the revelation that Commerzbank’s London branch had been failing to make adequate money laundering checks over a five-year period from 2012 to 2017. This cost them a £38m fine by the Financial Conduct Authority (FCA). And the German bank is not likely to be the only big name facing the music. “The Commerzbank fine is a sign of things to come, and follows the record AML fine on Standard Chartered last year, of over £100m,” said Abdulali Jiwaji,a partner at Signature Litigation. “In the current climate of economic distress, with firms under pressure to take on new business, the FCA will continue to target institutions from small to large in respect of AML failings, and will be focussed on opportunities for actions against senior management in particular.” So watch this space.

All Lies? Or Allies?

Well worth watching the recording of yesterday’s webinar ‘Black Lives Matter: A challenge to the law’ from the IBA’s Human Rights Institute. Chaired by Baroness Helena Kennedy QC and featuring David Lammy MP (a door tenant at Doughty Chambers). Ulele Burnham (also Doughty Chambers) and Matthew Ryder QC (Matrix Chambers), it dissected most of the big issues we are currently wrestling with over race and diversity from both an institutional and individual perspective. The three panellists did not always agree although there was clear focus on the need for action rather than yet more navel-gazing – especially when the navel has already been examined numerous times before. As David Lammy said, “There is a great feeling of exhaustion in the black community – the weariness is getting under people’s skin.”

Unsurprisingly the absence of black partners in the Magic Circle drew considerable comment as the embodiment of the institutional discrimination. “There is much talk of ‘allies’ but that should be a verb as well as a noun,” said Lammy

Watch on https://www.ibanet.org/Black-Lives-Matter-a-challenge-to-the-law.aspx

APPOINTMENT OF THE WEEK

– STUART HATCHER at FORSTERS

The West End is starting to open up again but Forsters, one of the top West End private wealth and real estate law firms, barely seems to have paused. And its upward trajectory was given a further boost earlier this month by the news that Stuart Hatcher (pictured above) , formerly a partner at PwC, had joined its corporate practice.

Hatcher has built his reputation on start-ups, scale-ups and fast-growth companies, with a focus on entrepreneurs, private businesses and mid-cap companies. His arrival at Forsters is reckoned to add further expertise to the firm’s private M&A team, particularly in the international arena.

“I will be working with my partners to further enhance our corporate offering in the private business space and particularly to High Net Worth clients and the businesses that they own,” said Hatcher. “In these challenging market conditions, my focus will be to bring the robust, commercial and practical legal advice clients need and expect to help them steer their businesses through unchartered territories.”

Craig Thompson, Head of Corporate at Forsters commented that right now is a critical time for business owners, entrepreneurs and innovators. “We are well placed to help our clients determine a clear and strategic path to enable them to drive value out of their corporate transactions.”

The Forsters Corporate department acts both as a standalone function and can advise in co-ordination with the firm’s Private Client and Real Estate teams.

“Some may assume that high net worth (HNW) individuals are having a “good” pandemic, due to their wealth but this would be too simplistic as similarly to the rest of the business world much depends on the access to liquid assets,” said Hatcher. “HNW individuals with access to cash are investing in and buying into those quality companies that need funds to thrive and the deal market is slower but still active. Those HNW individuals whose wealth stems from businesses that are hit by the pandemic – notably hospitality, leisure and retail – face more challenging times as the value of their assets become uncertain and they themselves need to access funds to trade through lockdown.”

What happens around the Forsters’ office in the Mayfair and Oxford Street areas will be a useful barometer for how quickly the recovery is taking place.

LEGAL COMMENTARY OF THE WEEK – SPORTING CHANCE?

The Premier League restarted last night with controversy over a botched refereeing decision impacting on Aston Villa’s chances of staying up. But how will the lower leagues struggle for survival? asks STEPHEN TAYLOR HEATH, Partner and Head of Sports Law at JMW

The Premier League and Championship restarted this week, but there has been little focus on the impact of the virus on the lower leagues. The lower down the leagues you go, the more important ‘gate money’ is and without it, it simply isn’t economically viable to try and continue behind closed doors below the championship.

Sports lawyers had to advise on various issues at the onset of the pandemic such as force majeure and frustration – though the situation was fairly clear cut with a government ban putting a stop to all sporting events. Now that some professional sport has resumed, but without a live paying audience whilst other sports have not been able to restart, there is likely to be a greater need for legal advice on contracts and dispute resolution.

 Semi-Pro players used to have fixed term contracts during the season and other jobs during the break. They face double jeopardy with the clubs terminating contracts early due to the cancellation of the season so they cannot be furloughed but they may not qualify for the Government’s self-employed relief scheme either.Meanwhile professional players may need to go part time at clubs higher up the football pyramid than prior to the outbreak.

 The Football Finance Authority Task Force set up by the Government should be the independent body to focus on what needs to be done to help clubs and players. They can provide support in return for a stake in the club that can be exercised by the fans, enhancing the community aspect of the game. Now more than ever lower league clubs need to integrate with the local community.  In other countries, such as Germany, the most financially stable clubs are helping out clubs lower down the pyramid.

 Academy players have had no competitive football since March and may not have any until September. Many of these players are minors and the sport’s governing bodies have always had a mission statement to protect and look after minors, which extends beyond the Covid-19 pandemic to their general and mental well-being. The clubs will therefore try and involve these players in training matches for the first team and will be given opportunities if there is nothing riding on the outcome.

 Academy teams have competed in the England Football League (EFL) Cup competitions and if there was a restructuring of the EFL, that could enable the academy teams to compete in the EFL league pyramid as well next season.   

LAW BUSINESS INSIGHT OF THE WEEK

– AXIOM STONE ON DIVERSITY

The debate about diversity in law firms has raged for years but has now been given added impetus with the UK protests over racial inequality fuelled by the Black Lives Matter campaign. And some of our leading law firms are now in trouble following revelations about how few BAME lawyers they employ. But why would they not want to diversify? asks NORMAN HAYDEN, a spokesperson for Axiom Stone.

A more varied staff – by gender, ethnic groups, religion and social background – means fresh ideas able to address a fast-moving business scene amid changing social and cultural norms.

But Michael O’Dwyer’s news piece in last week’s Daily Telegraph reported that the “Magic Circle” law firms faced increasing pressure over their continuing lack of diversity. The paper’s analysis revealed that just six out of more than 800 UK-based partners are black, with two of the firms having no black partners.

The Law Society is quite clear: greater diversity means meeting legal and regulatory rules on equality plus firms benefiting by recruiting more widely, having a flexible and responsive workforce and enjoying better staff retention.

Where can the common ground be found to achieve this? The answer lies quite simply, by recognising shared values and experiences and celebrating differences among staff. Axiom Stone Solicitors operates this way and now has unique diversity credentials in terms of its partners, staff make-up and client base. By adopting intentional recruitment practices, transparent and open internal systems and career paths, mentoring and role models and flexible working it is achieving change both internally and externally – it also sponsors a number of business diversity awards and networking organisations.

As a result the firm is now one of the capital’s fastest-growing business law firms with offices in Mayfair, Edgware and Birmingham. By actively operating a “no discrimination” recruitment policy its workforce of over 100 now comprises all ethnic and religious groups across all departments along with women occupying many of the most senior positions.

Axiom Stone could now be a role model for others to follow.

Axiom Stone’s Managing Partner and founder, Pragnesh Modhwadia, is a prominent member of the Asian community.

ARTWORK OF THE WEEK

– Gökhan Tanriöver at Travers Smith

SASHA RADOJA of Travers Smith introduces the work of Gökhan Tanriöver, a graduate from The University of Westminster, who participated in the firm’s CSR Art Programme 2018 and was awarded a prize for his artwork ‘Confessionals’. The series of modern, personal and striking black and white photographs is now on display in the firm’s offices.

‘Contemplating Religion’

Gökhan is a London-based photographic artist born in Izmir, Turkey. He moved to London with his family for his father’s job and since then he has lived between Turkey and the UK.

His interest in photography began when he was a medical student and eventually his hobby became my vocation after working in the NHS for two years. It was a difficult decision to change careers but he never regretted it.

About ‘Confessionals’ Gökhan says,”I am a very introspective person by nature. As way to gain a deeper self-knowledge, I began to recollect my childhood memories to link my current thoughts and behaviours. My identity is informed by these memories: those that are recalled and those that remain hidden below the surface.

Confessionals is a series of analogue still-life photographs rooted in my autobiographical memory. The studio and the darkroom serve as the physical space where a meditative state facilitates a form of auto-therapy. The childhood memories, first voiced as a textual confession, are used to construct an image as a method of enriching my understanding of the self.”

‘Back Garden Mosque’

LEGAL MEDIA OF THE WEEK

– ‘Death, Protest and Change’ from Matrix Chambers

Lawyer and Member of Parliament David Lammy is everywhere this week so no suprise that he also turns up on Matrix Chambers’ lawpod series hosted by Richard Hermer QC accompanied by Murray Hunt and Helen Mountfield QC to talk about ‘Death, Protest and Change’.

Catch it here: https://www.matrixlaw.co.uk/resource/the-matrix-law-pod-episode-9-death-protest-change-a-discussion-with-david-lammy-mp-on-the-response-to-the-killing-of-george-floyd/

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Edward Fennell’s LEGAL DIARY

Thursday 11th June Lunchtime edition

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

SHORT THOUGHT OF THE WEEK

It has not been a good week for the British administrative establishment. Monday evening’s television schedule highlighted the Great Post Office scandal and the ‘Limbo’ experience of the Windrush generation. In both cases officials and government politicians came out of it poorly. Ordinary members of the public were abused and then abandoned. Aside from the victims only the lawyers were the heroes.

Then we heard of the Ministry of Justice’s decision to remove alternative dispute resolution from the incoming whiplash portal. It’s a small but typical example of the same mind-set. “It is a disgrace that the government is turning its back on a fundamental part of their proposals just because it is ‘difficult’ to achieve,” responded Qamar Anwar, managing director of First4Lawyers. “The message is simple, try harder. The government seems intent on creating yet more ‘David v Goliath’ inequality in the justice process by allowing innocent accident victims to fend for themselves against insurers.”

Mind you, with a good slingshot – aka lawyer – David can win in the end. But by heaven it’s a soul-destroying process.

The Legal Diarist

THIS WEEK’S CONTENTS

+ THE LEGAL DIARY OF THE WEEK

+ LEGAL REPORT OF THE WEEK – ‘REFORMING LEGAL SERVICES’

+ LEGAL COMMENTARY OF THE WEEK – TEST AND TRACE?

+ PRO BONO PROJECT OF THE WEEK – CMS

+ THE LAW BUSINESS – WORKING ACROSS JURISDICTIONS

+ ARTWORK OF THE WEEK – HOGAN LOVELLS

THE LEGAL DIARY OF THE WEEK

LOVE THE V SIGN IN COURTS

One encouraging sign of ‘green shots’, we guess, is that the courts would be back in business big time. And that is what is happening according to research from law firm HFW and litigation analytics company Solomonic who say that activity in the English Courts has recovered to pre-Covid-19 levels. This follows a sharp slump during the height of the outbreak.

 “At least 70 new claims were filed in the English Courts in each of the last three weeks of May, according to Solomonic data, having previously fallen below 30 new claims per week in March – a drop of 56% on the previous year. The English Courts are now slightly busier than they were at this point in 2019 (61 new claims per week on average) and 2018 (63 new claims per week on average),” says HFW.

 Damian Honey, Dispute Resolution Partner at the firm, added, “The current uptick in claims being filed in the English Courts suggests that the market is now coming out of that initial crisis stage. Businesses are starting to look ahead more confidently and consider issuing proceedings – particularly in relation to contractual issues that have arisen due to the outbreak.The high levels of market uncertainty mean that disputes activity could remain patchy over the coming months, but we ultimately expect the market consequences of Covid-19 to result in a surge of litigation and arbitration.”

So let’s all welcome the (admittedly jagged) V-shape graph below.

BREAKING UP IS NOT SO HARD TO DO

When we exit this Corona crisis and the word ‘Lockdown’ has disappeared from the popular vocabulary, people are still going to look back on the Summer of 2020 as a time of critical change in British social life. Because, rather like the 1944 Education Act, the vote in favour of the Divorce, Dissolution and Separation Bill (which had its second reading in the House of Commons a few days ago) will transform how fractured couples manage the conclusion of their relationships.

“The real impact is to reduce the areas that divorcing couples need to argue about and research has shown that the current need to find fault heightens tensions and creates unnecessary animosity,” said Julian Hawkhead, Senior Partner at Stowe Family Law. Meanwhile Alex Carruthers at Hughes Fowler Carruthers commented, “Although opponents to the law suggest that it will make divorce easier, in fact what it does is make it less divisive. That must be a good thing.”

Simon Beccle of Payne Hicks Beach, one of the lawyers involved in the landmark Owen divorce case which acted as a catalyst in highlighting the shortcomings of the current system, was clear about the benefits. “Once, hopefully, this no-fault or no-conduct divorce legislation has been brought into effect, couples will be able to divorce with greater dignity without them having to trawl over their conduct or behaviour towards one another and attribute blame for the breakdown, which often has a negative effect at the outset of proceedings and so often damages efforts to resolve issues relating to finances and children.“

But almost the last word must go to Tini Owens, the woman involved in that case. “My devastating experience going through the divorce courts left me trapped in my marriage and unable to move forward with my life. I am so pleased with today’s vote to bring in legislation which is fit for the 21st Century and which should mean that in the future, couples will not have to go through the unhappy, long, arduous and expensive divorce process which  I have had to endure and which I would recommend to no-one.”

According to the Office for National Statistics, there were 7.5 divorces of opposite sex couples per 1,000 married men and women in 2018. It will be interesting to see how – if at all – the figures move following this expected change in the law. Simon Bassett of Royds Withy King supports the proposed changes but counsels those considering a divorce at this time that they should try to step back from the current situation, as it may be that any issues that have surfaced are due to the stresses surrounding the situation at present. “It is important to be open and honest with each other as it may be that the issues are something that you can work through with a counsellor or therapist,” he advises. Sounds prudent.

MIXED SOUNDS IN THE ECHO CHAMBERS

Professor Stephen Mayson’s much anticipated report on future regulation of the legal profession ‘Reforming Legal Services: Regulation beyond the echo chambers’ has appeared this morning. The early signs from the first responders is a broadly supportive but nonetheless mixed reaction.

From Professor Chris Bones, Chair of Chartered Institute of Legal Executives (CILEX) it was a green light. “The measures included in this report that will protect consumers, open the market further to full competition and ensure that legal services as an industry remains a competitive sector for the UK, are all welcomed by CILEx and by CILEx lawyers.”

By contrast Sheila Kumar, Chief Executive of Council of Licensed Conveyancers (CLC) was not so supportive. “Stretching a single regulatory framework across the full range of legal services is not an obvious solution to the needs of a dynamic legal sector. Our approach to having different levels of qualification, cited in the report, shows the benefit of a diversity of approaches by different regulators so allowing innovative solutions to develop.”

Meanwhile Claire Green, chair of the Association of Costs Lawyers, seized the opportunity to have a little dig at solicitors. “Professor Mayson…notes how errors from ‘dabblers’, including solicitors, can lead to significant and avoidable shortfalls in costs recovery, to the detriment of lay clients.“ But she went on to add, “There is much to digest in his report about the overall structure of legal regulation, and it will hopefully form a major stepping stone to a regime where those needing advice on costs receive it from those who have demonstrated their expertise and have proper consumer protections in place. We also strongly welcome his call to protect all legal professional titles, including that of Costs Lawyer.”

See below an article from Profesor Mayson outlining his recommendations.

NCDV SUPPORTS HIGH COURT CHALLENGE TO LEGAL AID RULES ‘DEATHTRAP’

Among all the demands for the ‘defunding’ of the police – mainly in the USA but also in the UK – it should not be overlooked that this country has already massively defunded the Justice system – and has been doing so for over a decade.

Evidence for that is well known and frequently discussed but one little-known gap is in the Catch-22 over access to legal aid by women involved in domestic violence litigation.

Basically if you are a home-owner then you will be deemed to be able to fund yourself and will not be eligible for legal aid. But, in reality, capital which is locked up in bricks and mortar is not readily available to pay lawyers’ bills. So the money you notionally have disqualifies you from accessing legal aid even though, almost by definition, it is not available in practice. That is whythe Guildford-based National Centre for Domestic Violence (NCDV) earlier this week strongly supported a lone woman’s High Court challenge to the current rules.

“This challenge is hugely important,” says Mark Groves, the NCDV chief executive. “It is no exaggeration to say that in some domestic violence cases, where speed of protection is key, the current legal aid rules can amount to a deathtrap.”

The case involving “Claire” (not her real name) is very typical. Claire has two children and is on Universal Credit but cannot get the legal aid she needs for proceedings against her ex-partner because she has equity in the home she co-owns with him.

In this case, the family home may also be subject to further legal proceedings – for which she may require legal aid – and she also cannot borrow against its value because that would require her ex-partner’s consent.

“The so-called ‘capital’ that victims have on paper but cannot get at becomes a cruel trap from which there is no escape.,” said Mark Groves. “It dissuades victims from protecting themselves or leaving the home. It is time that the High Court looks at this issue afresh.”

LEGAL REPORT OF THE WEEK – ‘REFORMING LEGAL SERVICES’

THE INDEPENDENT REVIEW OF LEGAL SERVICES REGULATION

Two years in the making the final report of the Independent Review of Legal Services Regulation has now been submitted to the Lord Chancellor. Its author Professor STEPHEN MAYSON sums up here its findings in what could be a game-changing development for the legal industry.

The key proposal in this week’s Independent Review is for the registration and regulation of ALL providers of legal services, whether legally qualified or not, with a base level of regulation for the lowest-risk services. And regulation should be the responsibility of a single, sector-wide, regulator to ensure a common, consistent and cost-effective approach, subject to a statutory duty to apply only the minimum necessary regulation.

Risk should be assessed by reference to the public interest or to the potential for detriment to consumers. Regulatory obligations should be targeted on the risks of what practitioners actually do, and be proportionate in burden and cost to those risks. Higher-risk activities would attract additional regulatory attention.

Regulation could then reflect the circumstances, vulnerability and challenges inherent in the life-events of consumers. A more inclusive approach to regulation would also offer the prospect of investigation and redress for all individual consumers and small businesses, irrespective of the source of their legal advice.

The proposals would, however, still allow professions to maintain and promote higher professional standards than those required by the regulatory minimum.

Finally, while the principal focus of the report is on longer-term reform of the regulatory framework, the Covid-19 pandemic has accelerated the need for change. The likely increase in use of ‘unregulated’ providers and technology at a time of personal, social and economic instability in the lives and circumstances of both consumers and regulated providers suggests a need for short-term reform to regulation.

The report, therefore, also recommends a new ‘parallel’ structure. This would leave the currently regulated untouched, but bring ‘the unregulated’ (including online services) within a short-term version of registration and access to ombudsman investigation and redress.

The report is available at: https://www.ucl.ac.uk/ethics-law/publications/2018/sep/independent-review-legal-services-regulation.

Stephen Mayson is Honorary Professor, Faculty of Laws, University College London

LEGAL COMMENTARY OF THE WEEK

– ‘TEST AND TRACE’ WHAT’S LEGAL ABOUT THIS?

The introduction of ‘Test and Trace’ to stop the spread of Covid-19 is proving problematic all round. It’s not just that there has been the usual organisational road-crash but, more seriously in many respects, there are some fundamental issues of data protection law being overlooked under the cover of protecting public health. Here AARON MOSS, barrister at 5 Essex Court, unwraps the problem.

“The Open Rights Group’s primary challenge to Test and Trace is that the agencies have not carried out a Data Protection Impact Assessment. A DPIA is required by Article 35 GDPR where the data processing “is likely to result in a high risk to the rights and freedoms of natural persons”. The GDPR highlights that “new technologies” are more likely to require a DPIA.

The Prime Minister has said that he wants a “world beating system” for testing and contact tracing, to identify “local flare ups”. But this system will only achieve its goal if the public has confidence that their data will be protected and used in ways they can understand and to which they consent. Otherwise people will not use it and a significant tool to fight the pandemic will be lost. If Public Health England is unable to gain the public’s trust in Test and Trace, the prospect of the public putting their faith in a contract tracing app, which records location data, seems pretty remote.

It was 20 years ago today’ —

Test and Trace will collect personal data including an individual’s full name, NHS number, home address, and description of medical symptoms. In addition, people will be asked to identify anyone with whom they have been in close contact. Where somebody has shown COVID-19 symptoms, that data will be retained by Public Health England for 20 years in a personally identifiable format. People will understandably worry that the data could be used for purposes to which they would not consent. This is what the Information Commissioner calls “function creep”.

The 20-year retention period will likely be the battleground. Public Health England states in its privacy notice that this retention period is justified because COVID-19 is a new disease, and it may be necessary in the future to know who has been infected or in close contact with somebody who has had symptoms. PHE does not explain this statement any further, but this is understandable: it is not in a position now to state precisely how and why it might be necessary to use the data.

Just Gives Us the Facts —

This approach represents a departure from the contract tracing systems being used in other countries. Apple’s and Google’s joint API does not record any identifying data; the purpose of such a contact tracing app is to prevent the spread of the virus in the short term by informing those with whom a symptomatic individual has had contact that they are at risk of developing symptoms. In contrast, Public Health England wants the opportunity to do something much more long term, retaining the data to exploit it if the need arises. Public Health England will say that they are forward thinking, allowing the country to respond as the pandemic evolves; the ORG will say that the public should know how their data will be used before they hand it over.‘

Aaron Moss is a barrister at 5 Essex Court, a set of Chambers that regularly provides advice and advocacy across the full scope of matters relating to information and data protection law.https://5essexcourt.co.uk/our-people/profile/aaron-moss

PRO BONO/CSR PROJECT OF THE WEEK

DEVELOPING ISO 31022 – THE FIRST INTERNATIONAL LEGAL RISK MANAGEMENT STANDARD courtesy of CMS lawyer DR SAM DE SILVA

DR SAM DE SILVA

ISO (International Organization for Standardisation) 31022 is a new principles-based standard designed to guide companies in the management of legal risk in relation to all their operations and activities. It will help them meet their legal and regulatory requirements, manage contractual risk and enhance strategic decision-making in complex legal environments. Dr SAM DE SILVA, a partner in CMS’s IT and Outsourcing Team, joined the-then newly established ISO Working Group as Co-Convenor, acting as a representative of the British Standards Institute (BSI), and played a leading role in the development of the new ISO standard. All of Sam’s work was done on a voluntary and pro-bono basis. Here he describes its significance

Organisations have often not considered legal risk as a category in its own right and such risks have been subsumed within other risks. For example, in relation to financial services, Basel II defined legal risk as being a part of operational risk. This lack of identification of legal risk in its own right could be the result of its comparative lower profile when compared to other risks arising from, for example, financial crime, conduct and duty of care, IT and cybersecurity. These, historically at least, have had a much larger impact on the viability or capital adequacy of an organisation. However, this has changed over recent years with the level of fines in relation to not managing legal risk appropriately, and the significance of reputational losses for many businesses, driving significant changes in the profile of legal risk.

What is Legal Risk? —

The definition of legal risk is one of the most difficult areas on which to reach a consensus. Ultimately, legal risk was defined by reference to the established definition of “risk” as the “effect of uncertainty on objectives”– see ISO 31000 (Risk Management – Guidelines). This definition was then modified to include concepts specific to legal, regulatory and contractual matters, as well as non-contractual rights and obligations as part of that definition. The intention was to keep the definition as broad as possible – and as relevant possible to multiple jurisdictions – to ensure as wide an application as practicable.

ISO 31022 has 3 core sections which deal with the principles of legal risk management, the legal risk management process and, finally, the implementation. The principles section adopts the principles set out in ISO 3100, i.e. integrated, structured and comprehensive, customised, inclusive, dynamic, best available information, human and cultural factors and continual improvement. These principles are then applied to the context of the management of legal risk. In addition to these principles a new principle of “equity” has been introduced.

Supporting Fairness —

The Working Group responsible for drafting the new standard considered that, for decision-makers, establishing the principles of equity was useful to guide in the management of legal risk as it includes managing conflicts of interest and refers to providing an unbiased, independent voice in decisions and supporting due diligence and fairness for the best interests of an organisation.

The section of the standard covering the legal risk management process includes a flow-chart and description of how legal risk can be managed, including guidance relating to establishing the relevant context and criteria, the assessment of legal risk and the treatment of legal risk. The process also reinforces that monitoring and reviewing, reporting, communication and consultation should be ongoing throughout the entire process of managing legal risk.

The final section provides guidance on implementation and discusses the issues related to policy, roles and functions, integration, resource allocation and awareness of legal risk. It’s an important step forward.

For more on the new Legal Risk standard go to https://www.iso.org/standard/69295.html

THE LAW BUSINESS:

PERSONAL PERSPECTIVE OF THE WEEK

WORKING ACROSS JURISDICTIONS

KARISHMA VORA is based at 39 Essex Chambers in London also runs a set of chambers in India which specialises in international commercial disputes. Adjusting from the culture and etiquette of one jurisdiction to another requires constant attention, she explains.

Practising law in a jurisdiction other than where one grew up or read law prompts an internal negotiation between two cultures (although I suppose the same may be said about a barrister practising in London who grew up in Scotland or Ireland!).

So, for example, every time I get off the plane, I remind myself of the manner in which I must address my clerks. Here in London it is ‘if you do not mind..’ and ‘when you have a moment, please can you do…’. In India, by contrast, it involves simply making the task known to the clerk – ‘this needs doing’ without ‘please’. Although a ‘thank you’ would be welcomed, it is not expected.

In terms of the law itself, the chance to imbibe differing analytical approaches and advocacy skills are one of the key reasons why English lawyers might wish to gain experience working abroad. Before relocating to London in 2009, as a junior at the Bombay High Court, I was instructed to argue 3-4 commercial interim applications per day, developing the ability to think quickly on my feet.

Meanwhile as a lawyer with full rights of audience at the DIFC Court in Dubai, I learned about the interplay between local culture, a domestic civil law system and the common law governed DIFC Court.

In London, by contrast, a valuable lesson has been ‘less is more’. Nonetheless difficult judgments need to be made about drafting practices and the vociferousness of presenting one’s argument in court. In that regard, ‘tiptoeing’ is perhaps a better approach than performing ‘vertical gymnastics’.

ARTWORK OF THE WEEK – SAMUEL BASSETT AT HOGAN LOVELLS

Samuel Bassett, Alone at Sea and The Lord Lay Cold, 2015, Mixed Media on Board, 238 x 214 cm

“Sam Bassett’s works were the first new addition to the Hogan Lovells Collection as part of the refresh,” explains Mike O’Donoghue, the art-savvy lawyer who curates the firm’s collection. “My first project was to source a large work that would command the entrance to our new lounge in Atlantic House, which was a big ask given the size and space. I looked at a large number of works and artists and spoke to a number of galleries to find something that would not only logistically work in the space, but would engage with visitors and communicate the benefits and the role that art plays in the Hogan Lovells office. Sam’s work struck a chord, not just with me, but once up, with our staff, visitors and even a few passers-by from the street who have wondered in.

“In these paintings Sam paints the sea a dark black, almost oil-like. The figures delicate but surrounded and submerged in bold and brutal splashes of colour. His paintings are instantly recognisable as his work, but traces of his influences remain embedded in his work.

“The imagery is drawn from the space around him in St Ives, a seafront renowned for its beautiful golden sand and azure waters, which artists usually adorn on their canvases, but here in these works, they represent the sea at winter; dark, brutal and atmospheric. This is what it looks like when the holiday makers are gone.

“Sam often refers to his work as a confessional and diary all rolled into one and perhaps that is what makes and keeps the viewer intrigued.”

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Edward Fennell’s LEGAL DIARY

Thursday June 4 2020 Lunchtime edition

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

SHORT THOUGHT[s] OF THE WEEK – THE POLICING CRISIS AND THE LAW

“In these very uncertain times, lawyers have a duty to advance and protect the cause of human dignity,” says David Pressman, the former US Assistant Secretary of Homeland Security and now a partner with Jenner & Block who chairs the International Bar Association’s Committee on Human Rights Law.  “ Filing lawsuits will not solve the fundamental problems [the US] is grappling with.  Those will come, and they should.  But lawyers must serve their communities and the cause of justice holistically.  Our very character as a society is being challenged, and lawyers can and must play a role in standing up for the most vulnerable amongst us.”

Meanwhile Gresham College, London’s oldest higher education Institution, announced today the appointment of Leslie Thomas QC as its Gresham Professor of Law, the first time that the post has gone to a person of colour.

“If George Floyd’s brutal and racist death teaches us anything it is what the Black Community have strongly suspected and complained about for decades,” said Professor Thomas, “namely that for all the lip service society pays to the cold legal concept such as ‘the right to a fair trial’, this is rendered utterly meaningless and sterile if you are black but never get to trial because you are killed by law enforcement agencies. The focus is wrong. The debate shouldn’t be solely about ‘due process’, it has got to start with a fundamental respect for the ‘right to life’. I intend to shine a spotlight on the deficiencies in the system and what I believe we need to do to ensure that ‘Black Lives matter’ equal to other lives.”

OUR CONTENT OF THE WEEK

+ LEGAL DIARY OF THE WEEK

+ APPOINTMENT OF THE WEEK – TOM SNELLING AT SIGNATURE LITIGATION

+ CSR INITIATIVE OF THE WEEK

+ ARTWORK OF THE WEEK – SIMMONS & SIMMONS

+ THE LAW BUSINESS: PERSONAL PERSPECTIVE OF THE WEEK

+ LEXWeb of the Week – Clyde & Co on Covid-19

LEGAL DIARY OF THE WEEK

HEALTHY DEVELOPMENT?

The ‘Law and Crisis Management’ webinar set up yesterday afternoon by the Center on the Legal Profession’ Harvard Law School in conjunction with Africa.com attracted a large turn-out from UK and US law firms including Dentons, Norton Rose Fulbright, Weil Gotshal, Clifford Chance, White & Case and many others along with the American Bar Association and the Law Society.

What drew them in was the theme of how lawyers could work with business and government in dealing with the challenges of Covid-19 especially in the African context. Inevitably though the first remarks of keynote speaker Eric Holder, the US Attorney General under President Obama and the first person of colour to hold that role, were directed at the crisis aroused by the George Floyd murder.

Speaking movingly about ‘using the rule of law to improve the human condition’ he reminded the audience of the obligation on lawyers ‘never to allow our moral compass to waver’. Now based in Covington & Burling and helping Africa build its legal infrastructure Holder’s implied question was how much ‘Big Law’ should be doing to support equitable development worldwide. Time to take the knee, maybe – but then step up to the plate?

THE FUTURE’S IP

One of the key points made at the Law and Crisis Management webinar by Prof. Ruth Okediji of Harvard Law School was that large parts of Africa lack the laws and the legal infrastructure to protect IP. This is a major drawback given the fact that there is plenty of innovation taking place across the continent in developing treatments for disease including Covid-19. But, in the absence of a robust IP regulatory framework, international businesses are reluctant to invest in supporting development at scale.

Maybe this is a cue for a law firm such as ‘Am Law 100’ firm Polsinelli to get involved along with its new legal services company partner UnitedLex. The two outfits have just come together this week to combine the patent experience of a traditional law firm with the cutting-edge of legal tech.

“Intellectual Property represents a strong investment vehicle during times of economic instability,” said Polsinelli Intellectual Property Department Chair, Patrick. C. Woolley. “IP should be considered a ‘real’ asset with many advantages compared to traditional real assets. Our goal is to enable companies to protect and develop new assets while establishing a new way of leveraging valuable IP assets for years to come.” Just what Africa needs right now.

GROWING GULF IN LAW

China? The USA? Is anywhere safe these days? Radha Stirling, founder and CEO of Due Process International and Detained in Doha is highlighting what she claims is the growing number of British citizens suffering ‘unjust treatment and wrongful convictions in Qatar’.

“Many people are not aware of just how pervasive Qatar’s presence is in the United Kingdom,” she says. “This is quite concerning given the severity of Doha’s treatment of British citizens in their country. We cannot help but wonder if the extent of these financial interests may be compromising Britain’s willingness to support and intervene on behalf of our citizens.”

As an example, Stirling cites businessman Ranald Crook who has been found ‘Not Guilty’ of bouncing cheques and yet remains stuck in Qatar under a travel ban. “The British government could easily intervene and resolve the situation with a few simple phone calls to the Interior Ministry – but it seems reluctant to take any action.”

Stirling suggests Qatar’s economic clout in the UK might explain why the inaction. “Qatar’s investments in the UK have been strategic, and, frankly, that is dangerous for British expats in Qatar.”

YOU COULDN’T MAKE IT UP

In a deal which would set the pulse racing of any fan of great literature Travers Smith LLP has been instrumental in the acquisition of twelve literary estates from one of the longest-established literary and talent agencies in the UK, Peters, Fraser + Dunlop by newcomer to the business International Literary Properties (ILP).

Merely to run through the authors’ names is to savour a smorgasbord of extraordinary talent and diverse styles – Georges Simenon, Eric Ambler, Margery Allingham, Edmund Crispin, Dennis Wheatley, Robert Bolt, Richard Hull, George Bellairs, Nicolas Freeling, John Creasey, Michael Innes and Evelyn Waugh.

Wow! What a collection. Indeed how the seven-strong Travers Smith team led by IP, Technology & Data Partner Louisa Chambers got the job done at all is extraordinary. The Legaldiarist would have just hidden away re-reading some of those great books – especially as it was almost all done in lockdown.

“I am truly excited by the opportunity to nurture these twelve wonderful estates and to find new and exciting ways of telling the great stories that lie within them,” said Hilary Strong, CEO for ILP UK. I bet she is.

999: RING AND RUN?

Given what’s been going on in the USA it is no surprise that the performance of the British police has also come under scrutiny over the past week with accusations of excessive force being used against BAME young men featuring on news programmes. So it will be interesting to see the public’s response to the 999Run, the latest Covid-19 charity appeal, in support of the Blue Light Symphony Orchestra, the UK’s only orchestra for all emergency services personnel including the police.

The charity event is being organised by Sebastian Valentine, a detective constable in the Surrey Police Safeguarding Investigation Unit based in Guildford.“Our emergency services are working tirelessly to keep us safe, protected and healthy every day, but more so now during this coronavirus pandemic,” he says. “It is only right that we give back and help them regain some sort of normality and happiness in these difficult times.”

For more information on the charity run go to www.999run.co.uk

APPOINTMENT OF THE WEEK – TOM SNELLING AT SIGNATURE LITIGATION

Snelling immediately busy with his Signature smile

When Tom Snelling started at Signature Litigation this week it made a major splash in the legal media. As former Head of the Commercial Disputes Group at Freshfields he was a big name at a leading firm with an enviable record of managing high value, complex, commercial disputes across many business sectors. With experience before the UK’s most senior appellate courts, arbitral tribunals and the CJEU he was a big catch. And although, in these crazy times, he can only meet many of his new colleagues and clients remotely, he has already hit the ground running.  

 Not surprising really because although Signature might be a new name to some its lawyers are old hands in the litigation business. The partnership includes a number of people like Snelling with glittering CVs who, for one reason or another, want to work in a new kind of set-up which offers high quality disputes-only work without the client-conflict issues of some big City firms.  “That was one of the things that attracted me,” says Snelling.

 Founded in 2012 by Graham Huntley, formerly a Group head with Hogan Lovells, the firm is constituted as a co-operative (as well as being an LLP) with an inclusive culture which enables all members of the workforce  to contribute to  decision-making. Even pre-lockdown there was  only one meeting a month, attended by all staff and which lasted a maximum of just one hour!

 That intense focus on what really matters allows lawyers to get on with the job of doing their best for clients and is ideally suited to this new post-Covid19 era of lean operations which emphasise product rather than process.

 Meanwhile the prospects ahead for litigation look explosive, observes Snelling. “Over the past few months we’ve seen some legal ‘nudge theory’ going on,” he says. “Basically the UK Government has been encouraging everyone to try to be reasonable and patient with each other. But there is now an appetite for litigation building up and some clients are going to feel that they need to protect their interests even harder than before in order to get through the torrid times ahead.”

 Added to that there is Brexit. Assuming the UK quits the EU, deal or no deal, in December that is likely to give rise to immense volumes of litigation. As a former member of the Brexit Law Committee which the Lord Chancellor, established to help ensure the continuing use of English law and Courts by the international business community post-Brexit, Tom Snelling is deeply familiar with both the threats and the opportunities. He is likely to be very busy. 

CSR INITIATIVE OF THE WEEK – THERIUM ACCESS

In a rare glint of light for the otherwise bleak social justice scene right now Therium Access, the not-for-profit arm of global litigation funder Therium, has announced that it is contributing £100,000 to support social welfare law advice agencies during the coronavirus pandemic with the launch of the Community Justice Fund. Also involved in supporting the project are a number of law firms including Linklaters and Allen & Overy and five grant giving organisations 

 The aim of the Fund is to support social justice during the COVID-19 pandemic and lay the foundations for longer-term renewal of the advice sector. The fund now totals £7million and the first awards amounting to £600,000 have been made to 10 charities. 

Therium Access’ Grant Programme Director, Jeunesse Mensier, is on the Project Management Group and Grant Assessment Panel at the Community Justice Fund and is part of the team awarding grants. “This is an incredibly difficult time for all those that provide free specialist legal advice, and I am proud of Therium Access’ role in supporting those during this crisis,” she said. “I look forward to working with our partners to create better access to justice for all.”

For more go to www.theriumaccess.org

ARTWORK OF THE WEEK – SIMMONS & SIMMONS



Paulis Liepa
Raum 19
Relief print on paper on plywood Edition 2/2


It is over thirty years since STUART EVANS, as a partner at Simmons & Simmons, started building an art collection for the firm. “I’m still working on it with enthusiasm,” he says as he talks about a recent acquisition.

“In September 2018 my son John and I attended the art fair viennacontemporary. We had been asked to take part in a conversation about collecting contemporary art.

At the fair we got to know Maksla XO gallery from Riga. They had a solo show of work by the Latvian artist Paulis Liepa (b 1978) who makes distressed printed surfaces using basic graphic techniques such as stencilling and collography . The aesthetics of Liepa’s works come from influences of the modernist graphic culture of the 1960s and 70s: design, architecture and engineering blueprints.

To amplify the effect of “oldness”, Liepa  exposes his work to direct environmental influences – coagulated layers of glue, cardboard pieces scratched with a knife, layers of paint, one over another, creating a sense that the pictures have been abandoned somewhere and forgotten and rediscovered today.

Liepa’s work reflects on a wide range of philosophical and current events including everyday items from the artist’s diary. His pictures of “Rooms” reoccur. From time to time, Liepa will decide that he should move in a new direction. He makes an artwork to express this resolution graphically. Room 19 contains a wine glass, a hand gun and a cleaver.

This is the picture we bought for the Simmons & Simmons Collection. It spent eighteen months in our Citypoint London headquarters and is now installed in our Madrid office.

THE LAW BUSINESS: PERSONAL PERSPECTIVE OF THE WEEK

To open our new series of ‘Personal Perspectives’ on the Law Business CHRIS MULLEN Managing Partner ARC PENSIONS LAW reflects on the strengths of the specialist law firm

As the co-founders of Arc Pensions Law, a specialist pensions law firm, Anna Rogers, former head of Mayer Brown International’s pensions department, and I, the former head of Pinsent Masons LLP’s pensions team and then the international firm’s senior partner for a decade, first conceived of Arc back in Spring 2015.

Now celebrating our fifth anniversary and twice the winner of the British Legal Awards’ “Boutique Law Firm of the Year” the reasons for establishing a new dedicated pensions law firm seemed, for us, to be incredibly strong.

First, being able to focus exclusively on one market and dedicate all our efforts on servicing the clients in that market. What an advantage not to have to try and understand multiple types of clients across many different sectors and jurisdictions!

Second, the simplicity of the operation and the agility that comes with that: attributes that have really helped in this current Pandemic. Adjusting to rapidly fluctuating demand is no longer turning a super-tanker but pointing a speedboat on a new heading.

And finally, working with people who really understand what we’re trying to do and the clients we serve. At Arc, with the exception of our three marvellous PAs, we’re all pensions lawyers. A firm run by pensions lawyers, staffed by pensions lawyers. Communication is easy, understanding comes rapidly. The joys of having everyone pulling in the same direction!

So I’m a cheerleader for the specialist law firm. With around twenty people at Arc, we may be small, but we pride ourselves on being able to service our clients’ needs as well, if not better, than firms fifty times our size. Dedication to a market you understand well, a coherent and clear strategy and unity around that strategy – the Holy Trinity of successful law firm management. Little wonder that in so many specialist areas – IP, tech, employment, private client, tax, planning, environmental, insurance – the list is long and growing – experienced partners are leaving the larger firms and instead finding fulfilment and enjoying life, in a specialist law firm.

LEXWeb of the Week – Clyde & Co on Covid-19

Clyde & Co is running one of the most comprehensive information hubs on Covid-19 and is addressing the issue from all the possible angles. Recently it has put up an on-demand webinar on the disease and its impact on the mental health of employees. Chaired by Michael Tooma, Managing Partner of Clyde & Co Australia and author of ‘Michael Tooma on Mental Healththe four-way discussion considers employers’ duties of care with regard to mental health and then addresses the evolving challenge of a return to work – something which is now likely to impact on many more industries.

Definitely worth a look (although the pace could be a bit quicker – everyone’s WFH so it occasionally feels as if they’ve all just dropped in for a leisurely chat).

Go to http://www.clydeco.com/insight/article/covid-19-on-demand-webinar-covid-19-and-mental-health

EDWARD FENNELL’S LEGAL DIARY

Thursday May 28 2020 Lunchtime publication

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

REGISTER NOW: WEBINAR FROM HOGAN LOVELLS STARTING AT 1.00 PM TODAY

Who can start and join data class actions?’

Hogan Lovells’ second webinar in its data class actions webinar series is just about to start. It will be looking at how the GDPR kicks in when ‘data subjects’ – that’s people like you and me – believe the processing of their data has infringed their rights. But who can start and join data class actions?

Go to https://ehoganlovells.com/rv/ff0060055fd287cf18a685183043bf967fb5d990

Also access previous webinars in the series

SHORT THOUGHT OF THE WEEK

End of @The Office for Slater + Gordon?

With Slater + Gordon apparently abandoning their high profile, strategically placed office in Chancery Lane in favour of full-time remote working and the arrival in London of American outfit FisherBroyles which has been effectively office -free for almost two decades (see Appointment of the Week) the focus is now truly on the future of the office model as we have know it since the 1980s.

There is an echo here of the switch to LLP status some time back. At first a few small firms , barely heard of outside their own High Streets, opted for it. Mostly it was not taken seriously. But then came a gradual conversion followed by an avalanche of change as the benefits became clear and attitudes changed. So where will the tipping point lie for office occupation? The next six months or the next six years?

Legaldiarist

OUR CONTENT THIS WEEK

+ THE LEGAL DIARY

+ APPOINTMENT OF THE WEEK – THE ‘MAGNIFICENT SEVEN’ JOIN FISHERBROYLES

+ COMMENTARY OF THE WEEK – THE PLIGHT OF THE SURROGATE CHILD

+ ARTWORK OF THE WEEK – LAW FIRMS AS ART COLLECTORS

LEGAL DIARY OF THE WEEK

POST OFFICE – TURN YOUR RADIO ON!

We are now into the fourth day of BBC Radio 4’s excellent lunchtime investigatory series about the Post Office’s ruthless pursuit of sub-postmasters who were profoundly let down by the introduction of the (then) new Fujitsu HORIZON accounting system.

See The Great Post Office Trial https://www.bbc.co.uk/programmes/m000jfyv

Yeserday’s programme, featuring a graphic recording of the brutal interrogation of an entirely innocent female sub post mistress, was particularly shocking. According to the latest evidence it is believed that the Post Office brought over 1,000 prosecutions and racked up 900+ convictions of sub-postmasters and employees in the wake of the introduction of Horizon in 1999/2000. This contrasts with a mere five or six convictions per year before Horizon. Almost all the prosecutions were based on false readings given by the flawed IT system.

A major exercise in compensation and restitution is now due. However, according to Ron Warmington who ran the consultancy Second Sight which was brought in, ultimately, to investigate the scandal, this will be an enormous challenge. “How on earth the Criminal Cases Review Commission will be able to cope with reviewing a new tsunami of cases is beyond me,” he commented a few days ago. “Worse still, one can only guess how much public money has already been spent, over the past twenty years, on what must have been an appreciable percentage of the cases that our criminal courts were handling.

“I remain convinced that, had the Crown Prosecution Service been in the loop, most of those cases would have never made it to the court steps where many deals were struck.  [The Post Office’s] ‘clever trick’ of using the criminal courts (rather than the hugely expensive civil ones) as a virtually free of charge (to them) way of bludgeoning money out of its Sub Post Masters has blown up in its face.  Why did it take so many years – and so much money – for this to be disclosed?”

A good question indeed.

ARBITRATION RUBIK’S CUBE

Bryan Cave Leighton Paisner’s (BCLP) newly published Annual Arbitration Survey 2020: A right of appeal in International Arbitration has tested out in detail attitudes towards whether parties to arbitration should have the right to appeal a tribunal’s decision on the merits. In other words, the right to seek review of the award, simply because the decision that the tribunal has made is wrong.

The trouble is that it is hard to reconcile all the various elements on the interviewees’ wish-list (rather like achieving simultaneously lower taxes and better public services). It’ more like twisting a Rubik’s cube to get a consistent pattern – it can be done but it’s difficult.

For example71% of respondents said that a right of appeal would make international arbitration less attractive. Yet 51% of respondents felt that in some cases the consequences of an incorrect decision are so serious as to make the lack of an appeal mechanism unacceptable.

But as they say, you just can’t please all/some/any people.

For more https://www.bclplaw.com/en-GB/insights/bclp-annual-arbitration-survey-2020-rights-of-appeal-in-international-arbitration.html

OVER BUT NOT OUT FOR NIGEL RICHARDSON of HJA

Gone but not forgotten – and not even really gone



One of the toughest areas of law to work in is sexual abuse. So after thirty five years one would imagine that Nigel Richardson, as Head of Crime at Hodge Jones & Allen Solicitors, would have had his fill. But while he is now standing down as a director of the firm and member of the management board he is not going away entirely. Instead he intends to remain as a consultant and, as the firm puts it, ‘maintain continuity in the work for which he has gained a formidable reputation’.

Richardson’s reputation is based not just on years of work in practise but equally significant on his seminal book ‘Sexual Offences – A Practitioner’s Guide’ (Richardson and Clark) which was first published in 2014 and is now being prepared for a second edition.

“Doing my job over the last 35 years hasn’t always been easy, but it’s always been something I have enjoyed,” he says. “What is important to me, and what I am left with after every case, is that I did my best to help someone during a difficult time of their lives, especially when other people around them may have been judgemental or hostile. I am grateful to have been recognised by my clients and also my peers for the sensitivity I have tried to show in my approach, and their kind words have left a lasting impression.”

So, the story continues.

LOCKDOWN BLUES IN COURT

The presumption that “We police by consent in Britain” is being examined to its core right now as the legitimacy of the Lockdown laws (or maybe ‘rules’ or ‘instructions’?) is being exposed to the Cummings effect.

Yet whatever is going on in the Court of Public Opinion there is still an important case about the Lockdown making its way through the real courts. Earlier this week (Tuesday 26th) High Court judge Mr Justice Swift ordered the Government to respond by June 12 to the legal challenge to the lockdown issued by businessman Simon Dolan. This date was set after Government lawyers had again asked for more time to prepare and respond following the formal launch of proceedings. The 17 days allowed to the Government than usual but the pace of changing attitudes on the streets probably makes this essential. “Such is the magnitude of our fight, we pushed hard for an earlier date. But true to form, the Government wants delay after delay,” says Dolan.

The Judicial Review will seek to challenge the Government on three main points:

  • Whether lockdown is unlawful because the Government implemented regulations under the Public Health Act 1984 instead of the Civil Contingencies Act 2004 or the Coronavirus Act 2020.
  • The legality of the continuation of lockdown, and whether the tests for lifting it are too narrow, failing to take account of the economic and social impacts of lockdown.
  • Whether the restrictions brought in by the Government contravene the European Convention of Human Rights, which cover the right to liberty, family life, education and property.

These are big questions which might well have important answers if we go into a second spike. Whether Mr Dolan (who is represented by Michael Gardner of Wedlake Bell LLP and Francis Hoar of Field Court Chambers) will emerge as a hero remains to be seen.

APPOINTMENT OF THE WEEK – THE ‘MAGNIFICENT SEVEN’ JOIN FISHERBROYLES

Robert Boresta – One of the Magnificent 7

The appointment of seven new partners to the new and virtual office of US firm FisherBroyles in London this month could hardly be more apposite. At a time when many major law firms are trying to make a virtue of telling their lawyers to be homeward bound FisherBroyles can say that they have already been there, done that and are making a very good job of it – and that its seven new partner recruits need never worry about coming into the office ever again.

The seven new recruits – uniformly white males – are big gun-slingers. Between them Robert Boresta, Stephen Di Cioccio, Richard Flaggert, Daniel Larkin, Ben Lasserson, Andrew Webster and Thomas Wiesner have an impressive collection of ‘top-ranking law’ firms in their collective Curricula Vitae. These include major London names such as Freshfields, Withers and Pinsent Masons as well as elite US names including Cravath, Davis Polk and Sullivan and Cromwell. So they represent a major putting on of muscle to the London start-up operation bringing the total number of lawyer in London up to ten. But Rory Graham (formerly with Baker McKenzie), who joined in London a couple of months ago, is ambitious for more. “I think we can be up to twenty in London by Christmas,” he says.

Originally set up in 2002 in America to be lean and debt-free in the aftermath of the tech boom-and-bust the firm has grown through what it calls its ‘unique Law Firm 2.0® business model’ to have 230 partners in 23 locations all except London in the US.These locations are effectively geographical markets rather than offices and as Rory Graham (formerly with Bird & Bird), who joined in London a couple of months ago, puts it, “My laptop and I are the functioning unit.” So whereas other firms are grappling not just with the mechanics of WFH but also with massive overheads of rents, rates and multiple overheads of empty office blocks FisherBrolyes has no distractions from getting on with the job.

Unlike other challenger law firms where the lawyers operate effectively as self-employed sole-traders under an umbrella brand, the Managing Partner Michael Pierson, insists that the Fisher Broyles lawyers work in teams pretty much like conventional law firms – it is the absence of the physical ‘desks-and-dining room’ office infrastructure which makes the difference.

There is, however, one other major difference. The firm is not hiring associates – it is only interested in seasoned and experienced experts with partner backgrounds. “We leverage off each other,” says Michael Pierson, So no organic growth of the firm then? “There will be new ways of learning as well as working,” he says with emphasis. It will be interesting to see how it works out.

COMMENTARY OF THE WEEK

THE PLIGHT OF THE SURROGATE CHILD

There has been a lot of interest recently in the difficulties and joys of surrogacy. The Times’ T2 section ran a whole double page spread about it on Saturday last. That was a tale of happiness all round for a British-based couple and the surrogate. However it is not always that easy, legally and otherwise, says SARAH WOOD-HEATH (above) a family law partner at Clarke Willmott LLP who is an expert in surrogacy, donor conception and co-parenting agreements.

It is a sad fact that a lot of people who are trying to start a family via a surrogate in this country feel like they have no choice but to go abroad to complete the process.

 In the UK it is very difficult to find a surrogate outside of your family and friendship group as commercial surrogacy arrangements are not legal.  This means that you cannot pay someone to be your surrogate (only reasonable expenses). It also means you are unable to advertise that you are looking for a surrogate and a surrogate is unable to advertise themselves.

 There is also no binding contract between the surrogate and the intended parents which leads to a lot of unnecessary anxiety and uncertainty on both sides. Furthermore, the surrogate (and her partner) are recognised as the legal parents of the child until the intended parents obtain a parental order from the Court following the birth.

 For those who feel uncomfortable and vulnerable with the position in the UK or who don’t have a friend or family member willing to carry their baby the options are few and far between and so they look to foreign jurisdictions.

In a lot of foreign countries the rules are more relaxed, they allow commercial surrogacy and some have an established legal process recognising the intended parents as the legal parents at birth.

 The USA is a popular surrogacy hotspot as commercial surrogacy is legal in most states but the high cost of the process here means it is often prohibitive to intended parents. As a result countries like Ukraine have become increasingly popular, where treatment is more affordable but there are less regulations.

There are advantages but also risks to choosing surrogacy abroad and it adds complications to an already difficult and stressful situation, not least having to obtain travel documents to get the baby home once it is born. I have had clients who have been stuck abroad for months after the birth of their child.

 [Currently there has been high profile reporting of surrogate-born babies stuck in the Ukraine because of the corona crisis] Of course, nobody could foresee this current situation but it does bring into stark reality the existing concerns family lawyers have about both our system and the systems in other countries.

 The Law Commission is currently reviewing our surrogacy laws which is a really welcome development and I hope that the system is updated to reflect modern family living and to help couples achieve their goals of starting a family as much as possible and make the path easier here in the UK.

 We must remember that at the heart of this are parents who have usually been on a torrid and fraught journey of infertility to get to this point and who desperately want to grow their family. The anxiety of the intended parents whose babies are thousands of miles away must be phenomenal so I hope that the government will step in soon and class their journeys as essential travel so the families can be united.

ARTWORK OF THE WEEK

LAW FIRMS AS ART COLLECTORS : THIS IS THE WAY TO DO IT

by CATHERINE SHEARN

The transformational effect of art on the Haynes and Boone’s office

In the aftermath of the C-virus there is bound to be a major debate about the role of ‘the office’ for law firms – indeed it has already started. People might be working from home more but there will still be – for most – the need for a physical base as an expression of a firm’s character and where special events – including meeting clients – can happen. All the more reason then to regard the office not just as a ‘legal factory’ but as a place of significance in which art can play a special role.

Art Advisor CATHERINE SHEARN has recently set up a starter collection of art for US law firm HAYNES AND BOONE’s office in London. She explains here what she looked for and how she selected it.

Visit any law firm around the City and its environs, the value and importance of art is evident in every reception. At one end there are sleek contemporary canvases and on the other rococo framed portraits of Senior Partners, long deceased. The art is, for many, the first visual encounter with the firm.

Where do these artworks come from and who buys them? Starting a collection may be daunting – there is too much choice and it can all seem pretty expensive.

However, the art communicates the business and the culture of the firm. The art collection is one of the most individual expressions a company has. Whatever you choose, you are reflecting the brand and the values of the firm. You may select daring work by young artists (try the end of year degree shows at the art schools), or considered works by established names (perhaps some works on paper by Barbara Hepworth). You may prefer an obvious expression of financial success (think Damien Hirst or Jeff Koons), or an understated abstract work by a respected contemporary painter (maybe Callum Innes or Alexis Harding).

I avoid the obvious: there are artists whose work pops up in every other collection in the City. Andy Warhol prints are great and relatively inexpensive, but their ubiquity reduces the impact. Seek out interesting works by well known artists, or find work by lesser known artists. No one wants to see the same image in every boardroom.

For Haynes and Boone, the budget was small, but we wanted something high impact. All works were sourced and installed for under £7500. We focussed on a few works in key areas, and plan to add more artworks each year.

The first choice was for the library area. The back wall is now host to a series of Ellsworth Kelly lithographs published by Editions Maeght in 1958. The American abstract painter spent several years in France in the late 1940s, and it was here he developed his abstract visual language, before going on to exhibit at Fondation Maeght in 1951.

Not only is the international element of the firm reflected via these lithographs, but they communicate a logical and confident approach to thinking. The initial impact is graphic and strong, but these pieces reveal more on consideration as the artist’s study of colour and form is ever intriguing.

Clearly enough to engage the interest of visitors and staff alike.

For more go to http://vertigoartprojects.com/

Look forward to seeing you again next week – send your stories and commentaries to

fennell.edward@yahoo.com