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

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