Edward Fennell’s LEGAL DIARY

Friday May 21 2021 Edition 58

Diary news, commentary, insights, appointments and e-vents from the legal world

SHORT THOUGHT FOR THE WEEK – A BLOODY MESS

Image: Valentyn Salja

It’s been a week of reckoning for the Establishment. Last night’s Panorama pointed the finger at the top brass in the BBC who turned a blind eye – and covered up – the misdeeds of Martin Bashir. Meanwhile, later today the chickens begin to return to roost regarding the contaminated blood scandal of the 1980s (see our lead story in ‘Diary of the Week’ below).

As Des Collins (Senior Partner, Collins Solicitors), who acts for many of the victims, points out, the list of politicians involved in the affair, one way or another, is long and runs through both main parties – Lord Fowler, Lord Clarke, Edwina Currie, Baroness Bottomley,  Stephen Dorrell, Alan Milburn, Lord Reid, Patricia Hewitt, Alan Johnson, Andy Burnham, Lord Lansley and Rt Hon Jeremy Hunt MP. “We remain hopeful that they will be called and agree to participate [in the inquiry],” he says. “Their recollection of events is crucial to help us understand how this scandal came about, the response and how a recurrence can be prevented.”

Most of those above have left politics. Not so Andy Burnham. In recent weeks he has spoken about his disillusionment with “The ways of Westminster.” Just how disillusioning it all was we wait to find out.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Blood Money?

Crimes Against Humanity in Syria

– Going Green in the Midlands

– Tintin in America

– Lawyers offer a Lead (in social media)

+ CONTRIBUTED ARTICLES OF THE WEEK: WHAT DO WE DO POST-COVID?

– THE FUTURE FOR RESIDENTIAL EVICTIONS by Mark Steggles, Thomson Snell & Passmore LLP

– WRONGS AND RIGHTS OF RETURNING TO WORK POST-COVID by Miquelle Groves,  DAS Law

– WHAT TO DO ABOUT MANDATORY VACCINATION? by Desley Sherwin,  Roythornes Solicitors

+APPOINTMENTS OF THE WEEK from Addleshaw Goddard and Royds Withy King

E-VENTS from Matrix Chambers and BDBPitmans

LEGAL DIARY OF THE WEEK

Blood Money?

This is where its starts – Image: Nguyen Hiep

This afternoon Matt Hancock is due to given evidence on behalf of the Department of Health to the long-awaited official inquiry into the historic contaminated blood scandal “We welcome the fact that Matt Hancock is taking time in his busy diary to engage with the Infected Blood Inquiry,” says Des Collins, Senior Partner, Collins Solicitors and legal advisor to more than 1500 of the people affected.

Understandably, Mr Hancock and colleagues have primarily focused on Covid of late. However infected blood remains the biggest treatment disaster in the history of the NHS, having begun decades ago yet the effects are on-going and raw.  We urge the Government not to lose sight of its obligations to all those who have suffered and those who continue to do so by putting the matter of fair recompense to bed, once and for all.”

Mr Collins went on to say that his clients are hoping the Secretary-of-State will provide details of the Independent Reviewer’s appointment, whose role is to manage a new compensation framework, “As promised back in March and about which we have heard nothing since,” Collins points out. Covid, it seems, can provide cover for everything.

Crimes Against Humanity in Syria

The Syrian nightmare goes on and might even be compounded for refugees by this week’s news that Denmark is ordering some of its Syrian refugees to ‘go home’ on the grounds that Damascus and its surrounding area is now secure.

Meanwhile earlier this week Legal Action Worldwide (‘LAW’) filed a victims’ submission to the Office of the Prosecutor of the International Criminal Court on behalf of 20 Syrian refugees in Jordan. This is the first time that Syrian survivors of sexual violence are urging the Prosecutor to open an investigation into crimes against humanity perpetrated by the Syrian government. The victims – who include 13 men and 7 women – are all survivors of sexual violence. In many cases they were children at the time and were subject to mass rape, gang rape and other forms of sexual violence and torture. Many witnessed civilians being summarily executed and tortured to death.

According to LAW, its submission is representative of hundreds of thousands of Syrians who have been subjected to cruel and degrading treatment for daring to oppose the Syrian government. The victims, it seems, were targeted on the basis of their religion, political ideology and gender. Their testimonies confirm that the Syrian government used sexual violence as a tool to terrorize, humiliate and instil fear in the civilian population.

 The case builds on the precedent set by the International Criminal Court (ICC) in 2019 when it concluded that it could open a full investigation on the situation of the Rohingyas when they fled from Myanmar to Bangladesh. For Syrian victims, the situation in Myanmar/Bangladesh is analogous to their own. Millions of Syrians have been forced from their homes and the continued threat of violence prevents them from returning home.

  “Syrian victims have had the bravery to stand up and tell their stories. said Antonia Mulvey, Executive Director of Legal Action Worldwide (LAW). “The ICC now has a chance to restore some of the dignity that was stolen from them” 

 LAW is funded by the European Union. For further information contact hare@legalactionworldwide.

Going Green in the Midlands

Totally wired?

Following the first-ever detailed survey of individual law firms’ eco-friendliness by Law.com International the question remains whether solutions lie primarily in large scale strategic change or whether we can save the planet one light bulb at a time. The answer is probably a combination of both but to check out individual motivation Roythornes Solicitors (which has offices stretching across middle England from Birmingham to Spalding) has recently undertaken a survey to explore changing attitudes towards carbon emissions among its staff.

“Sustainability and protecting the environment around us is more important than ever and it’s vital that we make a conscious effort as a team to mitigate our carbon footprint where possible as small changes can make a big difference to the planet,” said Ann Barrasso, the firm’s ‘green team’ champion.“We commissioned the survey to gauge the commitment of staff, so we were pleased to see that people are making a concerted effort to protect the planet by shopping locally, recycling more, composting their waste and even installing solar panels.”

Maybe not surprisingly during lockdown the firm reduced its own carbon emissions by 45% (October 2019-December 2020) through implementing initiatives such as switching from paper-based forms to electronic forms thereby saving just under half a million sheets of paper and significantly cutting the emissions of running the printer and producing the ink.  

“As a firm we’ve made huge steps to reduce our carbon emissions, saving seven tonnes in the last year through [among other things] the purchase of 100% renewable energy in our Spalding office,” added Barrasso. “We hope that it will inspire other companies to make definitive steps towards reducing their environmental impact too.”

Where Spalding goes Spitalfields must surely follow.

Tintin in Hopper-land

‘IP-ee-aye-o!’ Catch me if you can!

Is nothing sacred? Increasingly we are asking that question both literally and metaphorically as some people get murdered for the use of what are regarded as blasphemous images and others are merely sued for them. The latter, fortunately was the case recently in France where a court in Rennes had to judge whether there had been a copyright infringement by the artist Marabout when he – jokingly – placed an image by Tintin into a picture by Edward Hopper.

Moulinsart, whoch acts on behalf of the Tintin estate, argued that the works were “nothing to do with humour”. Instead they simply took advantage – you might think, cynically – of the Tintin character’s reputation by including him in an “erotic universe.” (Thereby promoting shock and fury!).

So it was, maybe, understandable that the schoolboy detective’s representative could not see the funny side of Marabout’s juxtapositioning. But fortunately the court did and ruled that the artist’s works were covered by the ‘parody exception’ to copyright.

This is an important ruling because of the necessity on freedom of speech grounds to strike a balance between protecting intellectual property rights and allowing a wide range of comment and innovation,” comments Andrew Stone, intellectual property specialist at Clarke Willmott. “Decisions such as that found in this case enable people to critique the underlying work or artist without infringing their intellectual property rights.”

No doubt Captain Haddock would agree.

Lawyers offer a lead

According to research from Passle, the Corona virus has given rise to a much higher than usual number of social media posts by law firms – mostly advising clients on how to become C-virus savvy. A total of 37,000 pieces of online advice was given by the top 100 firms last year with the Top Ten contributors consisting of Norton Rose FulbrightKingsley NapleyFreshfields Bruckhaus DeringerLinklaters, Taylor Wessing.  Burges SalmonSlaughter and MayLewis SilkinIrwin Mitchell and Osborne Clarke. The old-style Slaughter’s partners would be incandescent – time was they thought that even speaking to the press was way beneath them.

CONTRIBUTED ARTICLES OF THE WEEK: WHAT DO WE DO POST-COVID?

THE FUTURE FOR RESIDENTIAL EVICTIONS by Mark Steggles, partner in the property litigation team Thomson Snell & Passmore LLP

Mark Steggles

Most evictions in England remain suspended until after 31 May as a result of changes introduced by the Government in response to the pandemic. Certain evictions can still go ahead (for example where there are more than 6 months’ rent arrears or anti-social behaviour), although bailiffs will reschedule evictions for a later date if an individual residing in the property is self-isolating or displaying symptoms of COVID-19

On 12 May, the Housing Minister, Christopher Pincher, announced that the emergency measures for renters introduced during the pandemic would be brought into line with the roadmap.

Notice periods for the service of Section 21 Notices (based on no fault evictions) that were increased to 6 months will be reduced to 4 months from 1 June. The Minister indicated that he planned for notice periods to return to pre-pandemic levels (being 2 months) from 1 October.

The current ban on all other bailiff enforced evictions will end on 31 May, although the restrictions on carrying out an eviction if anyone living at a property is self-isolating or displaying symptoms are expected to remain.

No let-up from uncertainty

Landlords directly feeling the effects of a tenant failing to pay rent will welcome this announcement. However, getting a County Court bailiff appointment often took many weeks pre-pandemic and with the anticipated increase in demand, further delays in obtaining possession seem inevitable.

In certain circumstances, there is scope for a possession order to be transferred to the High Court where there is greater access to more enforcement agents, but how willing County Court Judges will be to agree to such a transfer in the current climate is unclear.

The Government has also announced that a White Paper will be published in the autumn setting out proposals for the abolition of Section 21 evictions to provide tenants with greater security. In short, the long-tail of Covid will be felt by the property letting market for many months (or years) to come.

WRONGS AND RIGHTS OF RETURNING TO WORK POST-COVID: Key questions answered by MIQUELLE GROVES, Associate Solicitor at DAS Law

My medical history makes me more vulnerable to the virus. Can I refuse to return to work until I feel comfortable and safe to do so?

This will depend on the individual circumstances. You could firstly raise this with your employer informally if you feel the work place is unsafe. Should you not get the answer you had hoped for, then you could consider the more formal route of a grievance which could outline your concerns with regards to health and safety.

You could also consider speaking with your GP for some advice with regards to your medical history and whether they can give any recommendations or suggestions that you could put forward to your employer (if any). Should the risk be too high then a ‘fit note’ from the doctor may be an option. However, failure to have good reason for not returning to work could be considered as unauthorised absence. If you do have a genuine reason and health concerns that affect your ability to return to work, best practice would be to ensure that you have a letter or fit note confirming the need to remain off work due to the risks.

Remember these? They used to be called ‘TRAINS’. Dare-devils, nicknamed ‘commuters’, sometimes broke in and tried to travel on them! They didn’t usually get very far.

I have been asked to return to work but do not feel safe using public transport. Can I refuse to return or insist my employer pays/organises safe transport to and from work?

This is an unprecedented area, one that is unlikely to provide definitive guidance until cases begin to be held at Tribunals.

Although your employer does owe a duty of care to you and other members of staff, they do not have an obligation to arrange or pay for any safe transport to and from the work place (unless contractually obliged to) and this is generally not a reason to refuse to attend. However, as above, should you have any concerns around the safety of travelling back and forth to the work place, you could approach your employer and raise this with them. Individual circumstances may be considered, and certainly relevant at a Tribunal, for example someone with an underlying medical reason may be more justified in their refusal to use public transport based on health and safety grounds and thus having the additional protection provided by the Employment rights Act.

AND WHAT ABOUT MANDATORY VACCINATION?

DESLEY SHERWIN, senior associate at Roythornes Solicitors explains what the law says

“The long answer is that to force an employee to have a vaccination without consent could expose the employer to criminal charges of assault and battery. Employers must be mindful that some staff may suffer from severe allergies or have immune system disorders, meaning they cannot be vaccinated. Forcing such employees and other staff to have the vaccine might expose the employer to the risk of a civil claim for compensation over personal injury, should the employee suffer an adverse reaction.

From an employment law stance, mandatory vaccination requirements could lead to claims of fundamental breach of contract by existing staff, leading to the employee resigning and bringing a constructive unfair dismissal claim to a tribunal.  Although, in theory, this requirement could be introduced into the contracts of new recruits, other concerns discussed will still apply.

Claims may be raised of indirect or direct discrimination, where younger people who are waiting in line for the vaccination are prevented from attending work or taking up new roles through no fault of their own. Mandatory vaccination may also breach human rights law (in relation to the Article 8 right to a private and family life).

Other concerns and advice…

Another thing for companies to consider in relation to a vaccination policy is the possible adverse reputational damage that might be caused once disaffected staff voice their displeasure on social media. This might persuade customers, suppliers, and current or prospective staff to vote with their feet and go elsewhere.

“It remains of concern that the efficacy of the vaccination is not yet fully known. Although vaccination seems to reduce the chance of becoming ill if exposed to the virus, the extent to which transmission is reduced and for what period it remains effective, are still not fully understood.

“Instead of imposing a mandatory requirement for vaccination, employers are advised instead to encourage their staff to be vaccinated by providing information, holding informal question and answer sessions, encouraging staff to speak with HR or their GP to discuss their concerns, and to offer paid time off to attend vaccination appointments.”

APPOINTMENTS OF THE WEEK

Royds Withy King has appointed Mark Scott (pictured below) as a partner in its residential property practice in its London office. He joins from Blake Morgan where he was a legal director and head of the London residential property team. He was previously at Mishcon de Reya.

Scott has a 30-year track record in buying and selling prime residential in London, acting for wealthy individuals both in the UK and overseas, investors, private banks and family offices. Commenting on the current state of the market Scott said, “The past 16 months have been a particularly challenging environment for businesses and the people they employ. Yet the residential property market has held up and remains strong with encouraging forecasts for the year ahead and beyond. The demand for prime residential property both in central London and across the South East remains high and will continue as we emerge from the Covid pandemic.

Royds Withy King has a 60-strong residential property practice across its offices in London, Bath, Oxford and Swindon.

Addleshaw Goddard has appointed of Sarah Randall (pictured below) as a consultant in its competition team. Previously with BP plc, Randall was Global Head of Competition law, with responsibility for leading the in-house team and advising on cross-border M&A transactions, antitrust investigations, antitrust disputes and competition compliance. She is now just the latest in a series of appointments by Addleshaw Goddard intended to enhance its international and cross-border capabilities.

Bruce Kilpatrick, Addleshaw Goddard’s Head of Competition, said: “[Sarah’s] hire boosts our capacity across the broad range of antitrust matters on which we advise. Her skills will be invaluable in helping Boards to ensure they comply with increasingly complex and multi-faceted antitrust regimes both in the UK and internationally.

The Addleshaw Goddard competition team now comprises over 24 lawyers with significant international reach, assisting organisations with advice on merger control and antitrust across multiple industries and jurisdictions.

E-VENTS

Gaza – An International Law Perspective

Listen to the Matrix Law Pod’s latest episode

Due to the current conflict in Gaza, you might be interested in this week’s episode of the Matrix Law Pod which focuses on the current conflict in the region from an international law perspective. Richard Hermer QC speaks to Professor Andrew Clapham, an international human rights specialist, to provide an overview of the legal framework that governs not only the current hostilities but the overall legal context of the conflict.

BDB Pitman’s BREXIT WEBINAR SERIES: PUBLIC PROCUREMENT AND STATE AID AFTER BREXIT

Following the postponement of the second episode in our Brexit Webinar Series, we would like to invite you to the rescheduled event on Thursday 03 June 2021.

This session will draw attention to the changes to Public Procurement Law post-Brexit and consider the government’s direction of travel as suggested by the Green Paper.

We will also consider the new subsidies regime which has replaced the EU Law on State Aid and what public authorities and others should be alive to when subsidy issues arise.

 Topics we will discuss will include:

  • The new procurement landscape
  • Effect of the Public Procurement (Amendment etc.) (EU Exit) Regulations
  • Issues to look out for
  • The government’s Green Paper-Transforming public procurement
  • State Aid is ‘no more’ – An outline of the new subsidies regime
  • The new legal framework
  • How to approach a subsidy concern

The session will conclude with the opportunity for Q&A from the audience.

Register for your place by clicking here or by using the RSVP button on this mailing. If you have any colleagues that may also be interested in this session, please forward on this invite.

The session will be held using Zoom, a link will be sent to you in your registration confirmation email and will also be re-sent on the morning of the webinar.

We hope you can join us.

Follow us @BDBPitmans #BuildingBetter

We do hope that you have found this edition of the Legal Diary interesting (and occasionally amusing). If so please pass it on – or alert – your colleagues.

Meanwhile, please keep sending your Diary news, comments and insights to

fennell.edward@yahoo.com

We look forward to appearing next Friday – but will then have a week away in sunny…

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