Edward Fennell’s LEGAL DIARY

Add title

Friday October 23 2020 Edition 31

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

SHORT THOUGHT FOR THE WEEK

Those with Disabilities – The overlooked minority

‘If you can measure it, then you can manage it’. That’s an old adage but it is being observed by an increasing number of law firms in relation to the recruitment, retention and the pay of their lawyers by ethnicity and gender.

But one of the most significant minority groups – those with disabilities – has been consistently overlooked in these exercises. So it is to Allen & Overy’s credit that it is now, for the first time, including disability as one of the characteristics it will track in relation to pay.

This comes at a time when, as reported in the Legal Diary below, Addleshaw Goddard has become the first law firm to sign up to the BBC’s 50:50 The Equality Project initiative to track the representation of minorities as the spokespeople for their organisations. The firm has elected to focus initially only on the gender balance in their figures. There is scope to extend to other groups. It will be good to see when those with disabilities are also taken into account at Addleshaw Goddard and every other ‘leading’ law firm.

The Legaldiarist

IN THIS WEEK’S EDITION

+ The Legal Diary of the Week

– Quentin Hunt

– Addleshaw Goddard and the 50:50 project

– SRA vs. SDT

– Banco Central de Venezuela

– nexaGC

+ Legal Comment of the Week – Rewriting Human Rights

+ Legal Analysis of the Week – Potential implications of Brexit

+ Snapshots of Legal London

LEGAL DIARY OF THE WEEK

Forged in Fame

Quentin Hunt, a barrister of 2 Bedford Chambers, enjoyed his two minutes of fame in this week’s Channel 4 documentary about the controversial background to the jaw-dropping interview by Martin Bashir with Princess Diana back in the 1990s. The suggestion was that forged documents procured by Bashir had been instrumental in persuading the princess to take part in the programme. Hunt pointed out that this might constitute a criminal offence – still prosecutable even after all these years.

Mind you, in the unlikely event that the CPS does decide to follow up on this possibility there could be no better person to defend Bashir than Hunt himself. After all, as is pointed out on his website, “His easy manner and heavyweight reputation has attracted numerous high profile clients including International and Premiership footballers, Grammy award winning pop stars, World Champion Sportsmen, Members of Parliament and numerous business leaders. Such clients have trusted Quentin to secure the best possible outcome for them in their cases.” A celebrity journalist would easily fit into that company. Mind you, Bashir’s latest media role has been head of religious affairs at the BBC. Maybe better to start praying now.

First Equal

The last thing that highly competitive law firms want is to be equal with others. They want to be the ‘best’ or the ‘top’ or the ‘leading’. Well Addleshaw Goddard can now claim to be the ‘first’ law firm to have signed up to the BBC’s 50:50 The Equality Project. According to the firm this means that it will initially “Commit to achieving a 50:50 gender balance in spokespeople representing the firm in the media, press releases and awards, using the BBC’s detailed methodology and best practice developed to fully and better represent their audiences.

Although other ‘minorities’ will be targeted in the future the focus for the time being is exclusively on the male/female ratio. “Measuring makes a difference – going forward we will have the data which makes us accountable for our progress,” saidJustine Delroy, co-head of Addleshaw Goddard’s Gender Diversity & Inclusion Group. “We need to reflect in our external communications the wealth of credible female voices, and ensure that everyone has the best possible chance to get their voice heard”

The Legal Diary will be counting.

Visit 50:50 The Equality Project website for more information.

Irregular Proceedings

Oh dear! What on earth is going on at the Solicitors Regulation Authority (SRA)? In what must be one of the most humiliating judgements in recent history against any UK regulatory body the SRA has been condemned by the Solicitors Disciplinary Tribunal for falling “demonstrably below” the standard required of the profession following an  “improperly brought and pursuedcase against lawyer Jamil Ahmud, a partner with Bloomsbury Law.

In what was clearly a shambolic (and conceivably vindictive) attempt to pursue an inaccurate complaint of dishonesty made by a costs draftsman against Mr Ahmud the SRA made the almost incomprehensible error of not speaking to the only key witness. When, very belatedly, the SRA’s solicitors, Capsticks, eventually contacted that witness – a full four years after beginning the investigation – his evidence contradicted their allegation.

But that was not the only bizarre aspect of the case. It seems that the SRA’s own officers had previously investigated the matter and concluded that there was no merit in it – and actually closed the investigation! Despite this it was then re-opened in breach of the SRA’s own Reconsideration Policy. The Tribunal described this conduct as ‘lamentable’.  Indeed the SDT found that the proceedings “should not have been brought in the first place” and that “all matters were infected from the outset with a regrettable injudicious and peremptory lack of professional assiduousness [on the part of the SRA].”

Mr Ahmud was defended in this case by his own firm Bloomsbury Law, a specialist litigation and property practice and the upshot is that the SRA now has to pay Mr Ahmud’s defence costs amounting to £215,000. Should the parties not be able to agree this figure there will be a detailed costs assessment. In any case it is likely to be an unprecedented sum – the largest previous costs awarded against the SRA being £62,000.

“It is now clear that these baseless allegations should never have been pursued against me,” said Jamil Ahmud. “Substantial costs have been incurred in defending these proceedings only for them to be withdrawn at the eleventh hour. The SRA’s ‘lack of diligence and transparency’ in this case has wasted the time of both the SDT and myself, as well as squandering the profession’s money.”

The only consolation in this entire sorry story is that the SRA did not get away with it. But its reputation is clearly tarnished.

BANKING ON IT

The rule of law is supposed to be about observing the law even when you don’t like what it says (as we are now realising with the Covid Rules). So, whatever one’s view of the Maduro regime in Venezuela, one cannot support the representatives of Mr Guaidó (Maduro’s rival) in failing to comply with the English Court of Appeal’s Order requiring them to pay the costs of the Banco Central de Venezuela in its successful appeal in the ‘Venezeulan gold’ case (already covered on several occasions in this blog).

The Court Order required that Mr Guaidó’s ‘Ad Hoc Board’ of the BCV make an interim payment of £400,000 to the BCV’s client account with their solicitors, Zaiwalla & Co, by the 20th October 2020. The Guaidó Board has failed to do so, placing it in breach of the English Court of Appeal Order.

It is already on record – or at least the record of John Bolton in his recent book In The Room Where it Happened – that Jeremy Hunt when Foreign Minister had agreed that Britain would co-operate in ‘freezing Venezuelan gold deposits in the Bank of England, so the regime could not sell the gold to keep itself going’. But when that policy back-fired legally – as it has done – then surely the Government should be encouraging its friends in Venezuela to comply with UK law. But then, as we know, the Government hates ‘lefty lawyers’ especially in its own courts.

“Where parties knowingly fail to comply with a Court Order while having the means to do so, the court is able to impose sanctions – including potentially striking out their case,” said Sarosh Zaiwalla. The stakes, it seems, in this game of risk are starting to get higher.

Speaking Generally

Is there life after retirement for General Counsel? We know that growing numbers of lawyers are leaving big and small firms alike to opt for a more flexible future. But now nexa law – a challenger ‘distributed’ law firm – is offering the same option to GCs via its  nexaGC platform which matches up former in-house counsel to growing businesses and to the legal teams of larger corporates. It now has nearly 20 former in-house business lawyers on its books including the former data protection and GDPR lead from BT Group Plc, the former GC of Etihad Airlines and another from US pharmaceutical giant Teva Pharmaceuticals. 

“Former in-house lawyers make ideal partners for growing businesses because they have been on the ‘buy’ rather than the ‘sell’ side of legal services and know exactly what’s needed and what’s not,” comments Nigel Clark, nexa’s Sales and Recruitment Director. “We’ve seen a lot of traction for this model amongst former GCs who want a bit more flexibility and perhaps a desire to work with a handful of clients in a really strategic way. Our model aims to offer lawyers the best choice, the best commercial arrangements and the best culture.”

Assuming any of us actually has a future post-Covid, it all sounds rather seductive.

For more information about nexaGC visit https://www.nexa.law/client-services/nexagc/

LEGAL COMMENT OF THE WEEK

BORDER FORCE?

With politicians aiming to ‘take back control’ of the courts Priti Patel seems to be intent on curbing the use of human rights laws to block deportations through her Fair Borders Bill. But will it make any difference? Barrister Ben Keith is not so sure.

This image has an empty alt attribute; its file name is ben-keith.png

The Home Secretary has again been raising legal eyebrows with her rhetoric on immigration and human rights. She told the Conservative Party Conference that the new Fair Borders Bill would limit the power of judges to prevent removal from the United Kingdom because of fear of a breach of Article 3 of the European Convention on Human Rights. She cited Theresa May attempt to codify Article 8 (Right to a Private and Family Life) of the convention using very strict criteria. There has been some powerful language around the topic but the issues of human rights, asylum and immigration are conflated to try and attack the system.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” says Article 3 of the European Convention on Human Rights.  There are no caveats to the statement and no proportionality consideration. The right to be treated like a human extends to everyone, even those who have committed the most horrific of crimes. The language from the government that Article 3 had been interpreted too broadly and criteria would be implemented to help judges determine the meaning of inhumane and degrading.

So, it is a ‘brave’ government which tries to limit the power of the courts to enforce those rights. The narrative around the story is that Foreign Criminals are using Article 3 to prevent their deportation from the UK. The plan is to give judges a set of criteria with which to analyse whether someone might be subject to inhumane and degrading treatment if deported. This, in my experience, isn’t actually a problem. To win an Article 3 case is extremely difficult. The person must be at serious threat to life or violence. In a case involving someone with a medical condition they must be almost on death’s door. Our courts and the ECHR only find breaches of Article 3 in exceptional circumstances. In the first 6 months of 2020 the ECHR granted only two injunctions against the UK in American Extradition Cases (one was my client).  Examples of Article 3 inhumane conditions are overcrowded prisons where inmates have to share beds and are locked up for 23 hours a day, prisons where beatings and sexual assault enforce discipline – horrendous places with dreadful conditions. Changing the law will make no difference in respect of Article 3 and only serve to muddy the waters. 

Ben Keith is a barrister at 5 St Andrew’s Hill

Legal Analysis of the Week

Potential implications of Brexit

With Brexit negotiations now in the balance Robert Lyons of Excello Law examines what might happen next.

2020 has been an extraordinarily difficult trading year globally and 2021 is likely to be even more challenging.

Irrespective of whether a Free Trade Agreement (FTA) is negotiated with the EU,  businesses involved in cross border trade between the UK and EU will need to identify and cost new non-tariff barriers, get to grips with non-tariff quotas, work through any Brexit implications for the current and future work force and become familiar with the latest GB-EU border manual

(SEE https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/925140/BordersOpModel.pdf.)

If no FTA is agreed with the EU, businesses will also need to identify whether their businesses will be subject to import/export tariffs, cost any such tariffs and then assess the impact of these tariffs on their margins and working capital facilities.

The nationality of the goods being sold may also need to be identified.  Currently, any goods produced in the UK will be deemed to have EU nationality but, post-Brexit, the relevant nationality will be the UK.  There are many sectors with complex pan-EU supply chains e.g. the motor and aerospace industries where certain goods comprise numerous components manufactured throughout the EU. Ascertaining the rules of origin will be an additional new cost for many UK companies.

If no FTA is agreed, then many EU and UK supply chains may need to be revisited to ensure that the final product satisfies either the EU or UK nationality tests under the relevant rules of origin.  If the UK element is large enough to result in a mainly EU product no longer satisfying the EU nationality test, it may be that the EU manufactures will seek to source the UK elements from elsewhere within the EU.  It will be imperative for these businesses to ascertain whether these rules of origin will be a threat or an opportunity post Brexit. 

Robert Lyons is a specialist business and corporate lawyer at Excello Law

http://www.excellolaw.co.uk 

Snapshots of Legal London: Halloween Edition

In our occasional series of images and accounts of ‘Legal London’ Daniel Dodman takes a Halloween look at Smithfield.

Smithfield Market, historically a field of gore

As Autumn begins to settle in, the weather turns colder and the clocks go back it can only mean the impending count down to Christmas that begins with Halloween.  Anyone short of inspiration for ghoulish ideas only needs to turn their attention to the City and, specifically Smithfields for decades of blood and violence. 

Originally set outside the City walls (in the Smooth Fields), it quickly became the meat market feeding the whole of London.  It was also a large space that was used for jousting tournaments and public gatherings, the most famous of which are now its infamous executions.

These would be attended by thousands of people who would bring the entire family, get some fast food and let the festivities commence.  But no one should be in any doubt about the way the day would end up.  More common executions by hanging were run of the mill but a number of religious dissenters were burnt at the stake in the same location (including James Bainham who was a lawyer and a member of the Middle Temple at the time). 

Even worse was the infamous punishment of being hanged drawn and quartered.  A statutory penalty for high treason since 1351, the details make for pretty gory reading.  First you would be tied to the back of a horse and dragged through the street (drawn) before being hung until almost dead and then having your entrails removed along with your heart.  The final act was to quarter the body into four pieces.  One of the great quotes about the whole process comes from Samuel Pepys:

“I went to see Major General Harrison Hung Drawn and Quartered.  He was looking as cheerful as any man could in that condition.”

Thankfully, there are no executions in Smithfield today (although plenty of blood and guts still to be found in the meat market).  For those that want to get a sense of some of the misery the location has seen, a short trip to St Bart’s the Great is worth a visit.  As London’s oldest parish church it is quite stunning but also holds Damien Hirst’s “exquisite pain”, a statue of Saint Bartholomew holding his own skin post flaying.  Inspiration enough for Halloween! 

The Flayed St. Bartholomew

Daniel Dodman is a Partner at Goodman Derrick LLP, the London law firm. See more blogs at https://dandodmanhistory.com

And finally…

following on from the above our best wishes go to BDB Pitmans which has just moved from Westminster to Bartholomew Close, immediately around the corner from Smithfield and the place of execution. That should set the tone for the office!

Please keep sending in your news, comments and insights to

fennell.edward@yahoo.com

and do pass on this edition to your colleagues and friends.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s