Thursday June 18 2020 Lunchtime publication
Diary news, commentary, insights, appointments and arts from the legal world
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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.
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.”
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’.
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