Edward Fennell’s LEGAL DIARY

Friday July 16 2021 Edition 66

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

SHORT THOUGHT FOR THE WEEK – GROUP THINKING?

Are they standing together? Or standing apart? Image courtesy of the University of Pennsylvania

“Inclusion and diversity is an underpin of workplace culture,” said Monica Kurnatowska, Partner, Employment & Compensation, at Baker McKenzie earlier this week. “In a diverse and inclusive organization, group think is avoided and every day challenge is encouraged. This is a crucial part of managing risk.”

Brave words – especially in that ambition to avoid ‘group think’ whoch sems to be increasingly the norm across UK society. For a diverse organization to be ‘authentically’ inclusive there needs to be some common ground, something which can be held in common respect, otherwise diversity can lead to fragmentation and polarization. Managing that ‘every day challenge’ so it becomes a positive rather than a debilitating experience is a test of leadership especially in this era of cancel culture. Law firms have the great advantage in that respect for the law is a shared commitment. But what about the ‘unwritten laws’ which exist in every workplace? How many of those can be broken in the quest for diversity?

The Legal Diarist

Please note that next week’s Legal Diary will be suspended to mark term-end and also the publication of the Legal Diarist’s genre medieval mystery CHARTER FOR MURDER which has law at the core. Available now https://www.bookdepository.com/CHARTER-FOR-MURDER-Edward-Fennell/9781919616117

In this week’s Edition

+ LEGAL DIARY OF THE WEEK

– It’s ‘My place or yours?’ as firms move office with KIngsley Napley and Clarke Willmott

– Families Favourite at Irwin Mitchell

– Expansion in Major Trauma Group

– Seeing the Future of Law – It’s LawTech

+ LEGAL COMMENT OF THE WEEK

– The Diversity of the Judiciary 2021 report: Bar Council and CILEX

– The Infected Blood Inquiry: Collins Solicitors

+ CONTRIBUTED ARTICLE OF THE WEEK – TACTICS FOR LITIGATION FUNDERS by J-P Pitt of litigation funder Asertis

LEGAL INSIGHT OF THE WEEK: TICKET TO NOWHERE? From DAS Law

+ APPOINTMENT OF THE WEEK Travers Smith

LEGAL DIARY OF THE WEEK

It’s ‘My place or yours?’ as firms move office

New brand image – and new offices below

Following all the discussion and debate about how the pandemic might change perceptions and priorities for office working we are now starting to see some real life examples of how law firms are responding.

For example this week Kingsley Napley moved into its new office at Twenty Bonhill (Bonhill Street EC2). Although planned since 219 the detail of the move has been shaped by the new circumstances and the commitment to ‘agile working’.

“The firm has worked successfully on a remote basis during lockdown,” says Jemimah Cook, Kingsley Napleys HR Director. “We have seen strong levels of engagement and performance and, in many ways, have strengthened our culture as a result of the shared experience and initiatives we introduced to ensure we have maintained a sense of togetherness as a firm. We now want to retain the option of flexibility for people, trusting them to make the decision about where the best place is to conduct their work on a daily basis, whilst at the same time recognising that there is a positive case for office attendance for team working, developing and supporting relationships, and sharing knowledge and ideas, as well as for training, learning, supervision and development.”

The result is that members of the firm will work two to three days per week in the office as a guide (or the equivalent of 40-60% of their time calculated on a pro-rata basis) from September. The new offices also include a ‘Wellbeing suite’ comprising relaxation room, fitness studio, prayer and contemplation room.

Will Gareth Southgate be able to persuade them to return to the office?

Meanwhile, on Monday next, Clarke Willmott LLP will move their Birmingham office from Edmund Street to a new location at Colmore Row. As the management points out, the new office has been designed both for future growth and to support full flexible working for staff.

 “Prior to the pandemic we had plans for Birmingham including a more flexible use of our office space, but in the last 16 months we have learnt so much that we have been able to be more adventurous with our plans,” saidStephen Rosser, the firm’s Chief Executive. “Over 90% of our staff have told us via our surveys that they want to work flexibly going forward and this has given me freedom to design our new office for that purpose.”

 Rosser went on to say that staff who prefer and want to work in the office can do so. Staff who want to dip in and out as their needs change are also accommodated. “By using a desk booking system and having created a space with a full range of work environments from private booths through to a business lounge, our people can collaborate with one another, socialise or work quietly on confidential matters.“

Families Favourite at Irwin Mitchell

While some firms are going for agile working in terms of offices Irwin Mitchell has announced an upgrade in its family leave policy, designed to ‘Further improve wellbeing for colleagues, including enhancements to paternity and parental leave’. Included among a significant number of changes is the removal of the time limit for colleagues undertaking fertility treatment; plus the flexibility to take parental leave as single days, rather than in one block. “The limit for group enhanced adoption, maternity and shared parental pay has also been removed,” says the firm, “so colleagues can take advantage of these benefits from the first day they join.”

There will also be enhancements to the firm’s parental bereavement leave policy which will support colleagues through loss of a child regardless of age and miscarriage.

“These new family friendly policies come in response to feedback about what our people need and recognise the vital importance colleague wellbeing plays in the overall success of the firm,” said Susana Berlevy, the firm’s chief people officer. “As more of us work from home, this was an opportunity to enhance our policies to improve work-life balance and extend flexible working to offer greater choice and inclusion in everything, from maternity and paternity leave, through to fertility treatment and fostering. In exceeding statutory allowances, we are continually improving how it feels to work at Irwin Mitchell. These positive changes deliver equal treatment for all and provide our colleagues the very best working conditions and also allow us to attract the best talent in the legal profession.”

Expansion in Major Trauma Group

We need a lawyer Image courtesy of South Central Ambulances

The Major Trauma Group (MTG) continues to attract new member firms as part of its drive to support survivors of major trauma injury and their families through integrated legal, health and social care pathways. The latest recruits to the alliance include Burnetts Solicitors whose specialist award-winning serious injury team operates across the North East and Cumbria along with Lime Solicitors which champions individuals across the Midlands and the South East. Meanwhile HCC Solicitors is an award-winning serious injury law firm with offices in Manchester, London and Birmingham. As the group points out, major trauma injuries are the main cause of death for people under 45 in the UK. MTG is now a source of information for these individuals, and can direct them to appropriate legal, financial, and mental health services.

The work done by the Major Trauma Group is essential,” says Paul Brown, Senior Associate at Burnetts Solicitors. “Far too often sufferers of major trauma do not receive the support they require, and the situation has been made even worse as a result of the pandemic. Burnetts Solicitors is proud to be joining the Major Trauma Group at this important time, with the shared vision of helping those most in need access the rehabilitation, support and treatment they deserve.”

Seeing the Future of Law – It’s LawTech

Published this week by LawtechUK ( a government-backed initiative within Tech Nation) the report ‘Shaping the Future of Law’, highlights the rapid growth achieved within the UK’s lawtech sector and the opportunity for further growth and widespread digital transformation in law. In particular, the report emphasises the importance of a digitally-enabled legal sector to the UK with implications across many aspects of British society from business and consumer activities to the strength of the UK on the world stage. One key example, is international trade worth £1.153tr annually to the UK economy which can be streamlined through digital legal documents and effective use of data. (Although just how enthusiastic run-of-the-mill law firms are about this remains to be seen).   

In economic terms, the report places the market opportunity for lawtech to be up to £22bn annually, based on data commissioned from Frontier Economics, comprising: 

  • Unmet demand from SMEs and consumers in the UK estimated to be worth up to £11.4bn annually.  
  • Cost savings for SMEs of using lawtech products and services of up to £8.6bn each year.  
  • Productivity gains through increased use of lawtech by legal service providers estimated to be worth up to £1.7bn annually, which can be extended through tech adoption and the buying power of in-house legal departments.

 “The law is critical in all our lives and businesses and it should be easy to engage with and affordable and effective for everyone.  Lawtech is how we make that happen,” says Jenifer Swallow, LawtechUK Director at Tech Nation.  “The sector is seeing incredible growth – with lawtech startups and scaleups growing at 101% over the last three years, and adoption levels increasing during Covid-19 across our courts, legal businesses and in-house legal teams.The £22bn market opportunity of lawtech evidenced in this report only scratches the surface of the true impact we can have through digital transformation in law.” 

LEGAL COMMENTS OF THE WEEK

The Diversity of the Judiciary 2021 report was published this week. Here’s what was said about it.

When will the UK bench look like this?

DEREK SWEETING QC, Chair of the Bar Council

“This data should help us to take action to improve diversity in the judiciary. We need to understand why, when ethnic minority barrister candidates of Black and Asian backgrounds are disproportionately more likely to apply for judicial appointment, they remain consistently less successful than their white counterparts. Until we understand whether there is problem in the appointment process, or whether the issue is experience – or both – we are operating in the dark.

“To take effective action the Judicial Diversity Forum needs to better understand the varying success rates of different ethnic groups applying to the judiciary.

 “The professions are playing their part. Alongside joint work with the JDF, the Bar Council has an extensive programme of work in the areas of access, retention and progression across the profession, as well as a major project to support fairer distribution of work, focusing on under-represented groups at the Bar. We firmly believe fairer access to quality work will support both the retention and progression of under-represented groups. From the perspective of judicial careers, this work must be matched by a closer look at how judges are recruited and supported to take on more senior posts in the judiciary if the efforts to diversify the legal professions are to be reflected in judicial recruitment at all levels.

 “These statistics show that more work needs to be done to improve diversity in the judiciary, not only in relation to gender and ethnicity. More data (and work) is also required on other protected characteristics and socio-economic backgrounds if we are to change the make-up of the judiciary in England and Wales.”

PROFESSOR CHRIS BONES, CHAIR OF CILEX

“It is clear from the report that there are still considerable challenges ahead when it comes to increasing diversity in the judiciary, with women and those from Black, Asian and other minority ethnic backgrounds still underrepresented.

In senior judicial roles in particular, white men still predominate. I want to see CILEX being part of the solution. Given more than 73% of CILEX members are female, there is a real opportunity here, but the block on CILEX Lawyers applying for senior judicial appointments is holding talented candidates back.  

CILEX Lawyers have already proven themselves as effective judges yet in the last year CILEX Lawyers were only able to apply for four out of the 24 judicial selection exercises.  

CILEX continues to work hard to support and encourage our members in pursuing a career in the judiciary, increasing the number of places available on our Judicial Development Programme. The first full-time CILEX judge, Elizabeth Johnson, was appointed last month, and we know there is a growing ambition and capability amongst members to take a up a judicial career.

CILEX members need equality of opportunity. If we truly want to make progress towards a representative judiciary, now is the time to open up the judicial eligibility criteria to lawyers of all backgrounds.”

The Diversity of the Judiciary 2021 report can be found here https://www.gov.uk/government/statistics/diversity-of-the-judiciary-2021-statistics

INFECTED BLOOD INQUIRY

Needs no comment?

There’s a big fortnight ahead for the Infected Blood Inquiry with the appearance of three very senior officials/ministers who are believed to have direct knowledge of the management of thefatal policy – Dr Diana Walford (Principal and Senior Medical Officer roles), Lord Simon Glenarthur (Parliamentary Secretary of State for Health and Social Security) and Lord Kenneth Clarke (Minister of State for Health).

DES COLLINS, SENIOR PARTNER, COLLINS SOLICITORS says

 “These witnesses are central to our understanding of what went on during the critical period in the 1980s when the Government should have been responding to the AIDS crisis and considering the implications for those receiving blood products.

“We believe these individuals did know and appreciate the risks but were slow to act. However, a clear account of who knew what, when and how this impacted decisions made at the time, has never been forthcoming. There has been a lot of buck-passing and hiding behind Government protocol until now.

“Our clients have waited many years for Lord Clarke, in particular, to explain his actions – he has never given evidence on this matter before and always deflected questions by referencing advice given by Lord Glenarthur and other civil servants.

“Dr Diana Walford refused to give oral evidence to the Penrose Inquiry but again her knowledge and recollections of what happened at the time are key to understanding the history of the infected blood scandal. It is important that she shares these openly and in detail.

“I cannot emphasise enough what a massive moment this is for my clients as, finally, we may begin to get closer to the truth and the heart of the problem which led to the suffering of so many. 

“It is, of course, only right these key witnesses have been called to give evidence and the Inquiry is to be commended for bringing them to the stand.”

CONTRIBUTED ARTICLE OF THE WEEK – TACTICS FOR LITIGATION FUNDERS

Third party litigation funding is becoming increasingly important but it is a risky business and needs shrewd decision-making on the costs and benefits of how far a case should be pursued. Here J-P Pitt discusses the factors to be taken into account when persuading a litigation funder that enforcing your client’s judgment is a good investment opportunity.

J-P PITT

In simple terms, an enforcement opportunity that is ‘investible’ from a funder’s perspective, is one where the legal team have been absolutely clear from the outset what assets the defendant has from which to pay any amounts claimed or ordered by a court. To use project management terms, what is the critical path to cash.

Any legal team that has not identified in pre-action planning what the defendant’s ability to pay may be, will be facing an uphill journey to get funding for their claimant client. A funder will certainly do this exercise as part of its own due diligence. Indeed, it is without doubt the first question that every funder will ask when considering an opportunity. If there is no critical path to cash then there is no merit in considering the opportunity further. Winning the liability contest, in commercial terms, is only half the story and a court decision is a cheque that needs to be cashed.

If the critical path to cash is clear but challenging, then a funder may consider the opportunity investible. In this situation the legal team then need to put together a proposition for the funder. The proposition should set out clearly what the targets are that will be relied upon to obtain recoveries from, ideally cash, but certainly assets that can be readily liquidated from which to realise cash.

One advantage of doing this exercise early, is that it also enables a claimant to decide whether the “juice is worth the squeeze”. A further advantage from a lawyer’s perspective is that conducting such an analysis on a defendant may reveal a potential vulnerability that could be exploited, legally, either to persuade a defendant to settle sooner rather than later or to dissuade a defendant from avoiding to pay. Either way, the ancient adage of if you want peace prepare for war, is a good maxim to observe.

J-P Pitt is an Investment Manager at litigation funder Asertis

LEGAL INSIGHT OF THE WEEK: TICKET TO NOWHERE?

The ticketing and security debacle at Wembley last Sunday brought into focus the risks and dangers around buying tickets super-popular, high profile events. Here Lauren Wolf, Legal Adviser at DAS Law gives a reminder of the state of the law on these occasions.

What is my legal position in claiming a refund if the event is cancelled? (Which might almost have happened at the Euros final!)

If the event you have booked is cancelled, rescheduled or has changed location, you are entitled to a refund of at least the face value of the ticket.  If an event is rescheduled to another date, your ticket should be valid. If you can’t make the rescheduled date, then you’re entitled to a full refund. The ticket seller is responsible for giving you a refund for tickets to a cancelled event.

If the company is a member of the industry’s self-regulatory body, the Society of Ticket Agents and Retailers (STAR), it is a condition that they refund the ticket’s face value price when an event is cancelled. It is, however, unlikely that you will receive additional compensation for losses such as travel or accommodation.

Do I have any recourse if I bought a ticket from a tout or a reselling website and was refused entry to an event?

You can be refused entry to an event if you have purchased a ticket from a tout or reselling website if the ticket states ‘no resale’ or is a counterfeit ticket.  In these circumstances, you would argue a breach of contract against the seller to claim your costs back.  I would recommend that you check the terms and conditions on your tickets or booking information provided for the event that you wanted to attend.  If it is a genuine ticket and the reason for refusing you entry is not within the stated terms and conditions, you can argue the venue or organisers have broken the contract by denying you entry and you can potentially pursue them for a refund.

Are ticket touts still allowed to operate in the UK?

The general resale of football tickets is illegal under the Criminal Justice and Public Order Act 1994 unless the resale is authorised by the organiser of the match. However, the re-selling of live music tickets for profit is not against the law in the UK.

Professional touts have commonly used specialised software (known as ‘bots’) to automatically buy tickets in bulk the instant they are made available to the general public. These are then listed and sold for profit on reselling websites.

The Government has recently passed new legislation, in the form of the Digital Economy Act 2017, which bans touts from using ‘bots’ to buy tickets in bulk.  This new legislation has made it a criminal offence to use automated technology to purchase large amounts of tickets to then be sold on at inflated prices.

APPOINTMENT OF THE WEEK

 Travers Smith LLP has appointed Ben Thompson as a partner in its Infrastructure Sector Group, Thompson joins from   Weil, Gotshal & Manges where he hafd held the role of Counsel since January 2020. In 2017, he was seconded to the Leveraged and Acquisition Finance Transaction Management team at HSBC in London, advising on general leveraged finance and infrastructure finance transactions. Previously he had been at Latham & Watkins in both London and New York.

Ben Thompson

  “Our Infrastructure Sector Practice has been going from strength to strength in the current fast-paced environment, growing and diversifying its portfolio of work year after year,” said Spencer Summerfield, Head of Travers Smith’s Corporate Department and Infrastructure Sector Group, “Ben’s arrival will enable us to further grow our practice in order to meet the growing needs of our clients.”

E-VENTS

COLLYER BRISTOW

UK USA The latest podcast from Collyer Bristow
Episode 2: The Road to Efficiency In the latest episode in our US/UK tax focused podcast series, Senior Associate Aidan Grant is joined by Kristopher Heck and Patrick Mulhern of Tanager Wealth Management.  Together they discuss the importance of comprehensive financial planning and wealth management for US citizens living in the UK.  We hope you enjoy the episode!Listen here 
Aidan Grant Senior Associate+44 20 7470 4465aidan.grant@collyerbristow.com Peter Daniel Head of Private Wealth+44 20 7468 7351peter.daniel@collyerbristow.com

KIDS’ LAW

Have a listen to Kids Law’s BRAND NEW episode: When does a child end up in foster care?
In our ninth episode, Alma-Constance talks to MP Edward Timpson about his experience and knowledge of the foster care system in the UK.

Alma-Constance asks Ed:

🔹 Why did he decide to become a family law barrister?
🔹 What laws did he implement as Minister for Children and Families?🔹 What is the difference between fostering and adoption?🔹 Do children get a say in what happens to them?🔹 Can siblings stay together?🔹 What legal improvements are still needed to help vulnerable children?
 About our guest:
Edward Timpson CBE is the current MP for Eddisbury, and was a family law barrister in Cheshire before joining the Conservative Party and serving as the Minister for Children and Families from 2015 to 2017. When Ed was growing up, his parents fostered a large number of young people meaning he had lots of experience of the foster care system during his childhood. In 2014, Ed was named Minister of the Year after his campaign to extend the age at which individuals leave foster care from 18 to 21 years old, meaning they can be looked after for longer. 
 Listen here now!

We hope that you have found the LEGAL DIARY interesting this week. If so, please relay on to friends and colleagues.

NEXT WEEK We will take a short diversion but return as normal on Friday 30th July.

So please continue sending your news, comment and insights to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday July 14 2021 Edition 65

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

SHORT THOUGHT FOR THE WEEK

INTERPOL RED LICENCES: ‘GO TO JAIL’ CARDS?

Seen one of these?

The big news last night on the south coast media was the announcement of the release from confinement in Croatia of Southampton-based whistle-blower Jonathan Taylor who had given evidence against his old employer, Dutch oil firm SBM Offshore, in 2012.

Astonishingly the UK government would not intervene on his behalf with the Croatian authorities despite his cause being championed vigorously by former Tory minister Caroline Nokes MP. In brief, Taylor had done the right thing in exposing wrong-doing and his heroism should have been celebrated. Instead he was the victim of a retaliatory Interpol red licence issued by Monaco on trumped up bribery and corruption charges.

Monaco is not the only petty state to abuse the Interpol system. It is well recognised that Gulf states do it regularly. International collaboration in the fight against crime is vital. But maybe it is also important to apply some circumspection on the motives of those who issue them.

The LegalDiarist

In this Week’s Edition

+ THE LEGAL DIARY OF THE WEEK

Levelling Up in Leeds

– Gender violence adds costs to Criminal Justice

– Harneys: New Hands on the Wheel

  • IP Give-Away with Crowell & Moring

+ LEGAL COMMENTARY OF THE WEEK

WAGS AND WIGS comment from Collyer Bristow

– FIRE AND REHIRE comment from Langleys Solicitors

+ LEGAL ANALYSIS OF THE WEEK

  • Developments in Defined Benefits pensions with ARC Pension Law

+ APPOINTMENTS OF THE WEEK at Gide and HJ&A

+ E-VENTS with Brick Court, Bingham Centre, NQ Zebra

+ THE LEGAL DIARY OF THE WEEK

Levelling Up in Leeds

Is this still the REAL Leeds?

33 Bedford Row is doing its bit for levelling up by deciding to go north of Hampstead and establish 33 Bedford Row North. The new northern annex is now officially open full time at Park House, Park Square Leeds,” they announced this week.

Leeds has, of course, always positioned itself as England’s second legal centre (rather ignoring any claims from Birmingham, Manchester or Bristol) and 33BRN explains that it can now serve ‘Manchester, Newcastle, Liverpool, York and other thriving Northern cities’ as well as Leeds itself.  

“The leading common law set look forward to continuing to build ties within these communities and will always put the client, both professional and Lay, at the heart of all they do,” they say in a slightly puzzling way. After all why wouldn’t they put the client ‘at the heart of all they do’. Should that not be the norm?

Anyway, by the sound of it the new offices in Park Square are pretty smart including ‘brand-new concept work space on the ground floor for conferences, remote hearings, lectures and events’.

In a way it is quite refreshing to see lawyers endorsing the need for an office where people actually come to meet each other. Or is it just a sign that ‘the North’ is beginning to catch up with London where smart office spaces for barrieters have been the norm for a couple of decades. In this topsy turvy world where the Red Wall has gone Blue it’s difficult to make sense of whether this is progress, regress or just catching up.

Or is THIS the really new Leeds?

Gender violence adds costs to Criminal Justice

Gender-based violence is horrific and profoundly damaging to the victims (mostly women). But it also has a wider cost to society at large. In the case of the EU that amounts to €366 billion a year according to the European Institute for Gender Equality (EIGE). And of that about one fifth is the cost to criminal justice services.

Human life, pain and suffering do not have a price. However, knowing the cost of violence can help EU countries channel money to where it’s really needed — and where it’s most cost-effective. The money spent on supporting victims is not enough, with services such as shelters making up just 0.4 % of the cost of gender-based violence. EU countries need to invest more in activities that prevent violence against women and protect victims — this is both a moral imperative, as well as savvy economics,” said Carlien Scheele, EIGE’s Director.

No doubt the same can be said of post-Brexit Britain. Given the surge in domestic violence during Covid lockdown those figures are likely to be even higher.

– Harneys: New Hands on the Wheel

Welcome to the office

Heavy hitting Harneys (motto ‘Breaking Convention. Creating Opportunity.’), which operates from those idyllic islands in the sun where everything is offshore and above board, has just appointed Ross Munro as its new Global Managing Partner (effective 1 January 2022). Having been with the firm since 2001 – starting off in the British Virgin islands – he knows his way round the business and has spent his time in London since 2014 as Global Head of Harneys Fiduciary. During that period, the firm says, Fiduciary experienced a ‘dramatic’ growth in revenue and a diversification of its client base. In fact, Munro seems to have been on quite a roll, expanding into new jurisdictions, developing new product lines, transforming service delivery and meeting the challenges of numerous regulatory changes. “His approach as Global Managing Partner will bring this same energy to the role, focusing on clients, people and business transformation,” says the firm.

As you will have guessed, the firm practises primarily the law of those hot and interesting islands -BVI, Cayman, Cyprus, Bermuda and Anguilla. But in terms of clients the firm’s latest big deals all seem to hinge on China. Indeed, Shanghai is one of their few non-island offices and Harneys is one of the largest offshore law firms in mainland China. So please don’t mention Taiwan.

IP Give-away

Intellectual property is increasingly a company’s most important asset so Crowell & Moring has cleverly developed an automated self-check app which helps businesses think critically about it.  The IP Check-Up is an automated self-check app that companies and corporate lawyers can use to get a quick and free initial overview of any IP risks the company might face. “Until now, business leaders wanting this kind of service have typically had to commission expensive, time-consuming audits, and this has had a significant deterrent effect,” says the firm.

The online app gauges the company’s industry, its key competitors, how the company markets its products, and whether or not the company possesses sensitive information that should not be shared publicly. Based on the respondent’s answers, the app produces an automated initial assessment of the IP risks the company is running. And what’s more it is completely free.

“Globalisation and digitalisation mean there are more and more competitors out there. We want to make it as easy as possible for companies to think about their IP and how they can protect it, or better protect it, or even exploit it financially,” explains Crowell & Moring’s Jan-Diederik Lindemans. Too good to be true? Check it out for yourselves. Here accessible online.

+ LEGAL COMMENTARY OF THE WEEK

WAGS AND WIGS

Search for Vardy and Rooney and you won’t easily find the footballers. But you will find their wives. This is a grudge match which might outlast England vs Germany. And in the latest round of the High Court libel battle a judge has just thrown out parts of Coleen Rooney’s defence.

 “What the court has done is not unusual,” says Steven Heffer, Partner and Head of Media & Privacy at Collyer Bristow. “The Judge has struck out what he regarded as irrelevant parts of Rooney’s defence, to avoid wasting court time at the trial, focussing only on the properly relevant issues.”

 “If the trial goes ahead, there will still be plenty to keep the media and public entertained. That is the reality when a big libel trial plays out in court in what is a dramatic and entirely public forum. Such cases are rare nowadays, the parties often appreciating the high stakes and huge cost – both financially and in terms of reputation. These cases can have a huge impact on the parties personally and even destroy careers and reputations.”

 “A public trial will only be avoided if the parties can agree a settlement.”

 FIRE AND RE-HIRE

Using a “fire and rehire” approach to change their employees’ terms of employment is becoming increasingly common. But is it lawful?

“Under current law, if an employer wishes to vary terms and conditions of a current employment contact, they must firstly seek to reach agreement to the changes by consulting with the workforce, and any trade unions as appropriate,” says Kate Hindmarch, employment lawyer at Langleys Solicitors.

“If an agreement cannot be reached, employers must terminate employees existing contracts by giving notice, and offer to re-engage on the new terms – “fire and rehire”. The employees are then effectively dismissed, and face the choice of accepting the new, usually less generous terms.

“Most employees in this situation, particularly in the current economic climate, are likely to accept the new contract, whatever the terms, to avoid unemployment. However, if an employee refuses the new terms, then they may have a claim for unfair dismissal, providing they have more than two years of service.

“Employers must be mindful that firing and rehiring can be damaging for employee relations in the long term, particularly if the situation is managed insensitively. Employer’s risk alienating their entire workforce; recent media commentary reports that employees being asked to accept a new contract on worse terms are even threatening employers with company strikes.

“Ultimately, “fire and rehire” is potentially lawful, but businesses must consider whether it is ethical. It is a high-risk strategy which employers should not take on without understanding the risks and potential reputational damage involved.”

+ LEGAL ANALYSIS OF THE WEEK

The High Court has tightened the screws in the Axminster ruling on Defined Benefit (DB) pension trustees. Anna Rogers explains the implications.

The High Court recently ruled in Punter Southall v Hazlett, in re Axminster Carpets [2021] EWHC 1652 (Ch). The casehas been a long time coming and by the time it reached the Court the parties had agreed a compromise of numerous underpayment issues that are fairly common in defined benefit pension schemes. There were however some points that needed to be decided because they affected the quantum of the arrears.

Mr Justice Morgan reconsidered and expanded on some of his own rulings in the landmark Lloyds case. Current trustees have no limitation defence if they underpay. However, forfeiture clauses are allowed, limiting recovery to six years’ arrears.

Most DB schemes allow forfeiture. Some require it, with discretion to disapply. Until Lloyds the general view was that forfeiture didn’t work, or if it did it wasn’t very trustee-like. 

The Judge gave a pretty heavy steer that any discretion should be used in favour of beneficiaries if they were not at fault and the trustees were. In an apparent swipe at the trustees, who had ignored legal advice that they were underpaying, he said it might be different for their own benefits.

DB pensions are complicated and there are systemic risk areas for underpayment, both known and unknown. Trustees who are members are now on notice that their own benefits may be at risk if they don’t act. Better then not to take legal advice? Our view is, better to amend away the forfeiture rules they never used, don’t want to use, and can’t fairly use against anyone other than themselves.

Anna Rogers is Senior Partner, Arc Pensions Law

+ APPOINTMENTS OF THE WEEK

GIDE appoints China expert de Dainville as Partner

Among a clutch of seven new partners at French firm Gide (which now has 117 partners across 11 offices worldwide) the Legal Diary was impressed by Louis Oudot de Dainville who specialises in corporate law, M&A and matters related to venture capital and private equity.

de Dainville

What’s most striking though (aside from his legal qualifications) is that he has a degree in Chinese Studies from the National Institute for Oriental Languages and Civilisations and plenty of experience in Gide’s Beijing and Shanghai offices. No wonder he’s in demand.

HJ&A appoints asbestos expert

Hodge Jones & Allen has appointed Joanne Candlish, an accredited Senior Litigator of the Association of Personal Injury Lawyers and highly experienced asbestos solicitor, to support its growing team in the north of England.

Joanne Candlish

Based in Liverpool, Joanne has close to 30 years’ experience, acting for asbestos victims and their families in mesothelioma and other asbestos related lung disease claims. She also represents those who have suffered serious and complex injuries caused by road traffic and workplace accidents. Her landmark case was representing one of the lead parties in the “Employers’ Liability Trigger Litigation” case in the Supreme Court.

E-VENTS

Webinar Invitation BINGHAM CENTRE FOR THE RULE OF LAW

A conversation with the Founding Director of the Bingham Centre, Sir Jeffrey Jowell QC: ‘Can countries succeed without the Rule of Law?’  

Wednesday 14 July 2021 | 16:00pm – 17.00pm (British Summer Time) 

This webinar has been organised by the Centre for Development and Enterprise, a leading development and policy think tank based in South Africa.
 

The recent constitutional court judgement on former president Jacob Zuma has highlighted the importance of the Rule of Law. 

The Centre for Development and Enterprise is hosting a conversation with Sir Jeffrey Jowell, Emeritus Professor of Public Law, University College London, where he was Dean, Head of the Law Faculty and Vice Provost, as well as being a founding director of the Bingham Centre for the Rule of Law, set up to advance the rule of law worldwide.

He is an international authority on constitutional and administrative law. In his role as an academic and practising lawyer, he has advised on the constitutions and human rights issues in a number of countries, including South Africa. In 2011 he was knighted for ‘services to human rights, democracy and the rule of law’.
Opening Remarks by: 
Johann Kriegler, Retired constitutional court judge

In conversation: 
Jeffrey will be in conversation with Ann Bernstein, Executive Director of the Centre for Development and Enterprise.

Registration

This webinar is free to attend, however you will need a Zoom account to register. After registering, you will receive a confirmation e-mail containing information about joining the webinar.
BOOK NOW

BRICK COURT’S third centenary podcast features Sir Sydney Kentridge QC and Lord Sumption

The relaxation of lockdown restrictions brings together two titans of the law, face to face, to discuss their careers, their cases against each other, trial advocacy vs appellate advocacy, learning how to cross-examine … and whether or not one should keep score!

The conversation turned, of course, to Sydney’s famous cases in South Africa, and whether lawyers can and should seek to bring about political change, as well as to Jonathan’s appointment direct to the Supreme Court, and the extent to which retired judges should speak out on public issues.

Listen to the episode here

Work ‘The Same’ From Anywhere With NQZebra


 We have seen the evolution of working from the office, to working from home, to working from anywhere. But now, nQ Zebraworks says, the focus needs to be on working in the same way from anywhere.

Firms have transitioned well to working from home, but what are the tools that are needed now as firms navigate a far more fluid future?

We will look at the steps that firms are taking to expand their digital toolkit, as well as how they are driving adoption.

And we’ll be conducting a few polls so we can see whether the experiences of our guests accords with those of you listening in.
 Taking Place on Tuesday 13rd July  
16:30 BST/ 9:30 MST/ 11:30 EST
Click Here To Claim Your Free Place Now!

Hope that you’ve found this edition of The Legal Diary Interesting. If so please recommend or pass on to colleagues.

And please continue to send your stories, insights, comments and appointments to

fennell.edward@yahoo.com

And if you are reading this on Friday – ‘Come on ING-ER-LAND’

But if you are reading it on Monday – ‘Bad Luck! Close but not quite good enough – despite Southgate being the one.’

Edward Fennell’s LEGAL DIARY

Friday July 7 2021 Edition 64

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

SHORT THOUGHT FOR THE WEEK – A ‘MOSAIC’ SOCIETY

On Thursday of next week (8 July),DLA Piper’s cultural heritage and ethnicity people network in the UK – MOSAIC – will host a client webinar to mark one year since George Floyd’s death. The key speaker will be Cephas Williams (founder of 56 Black Men & Drummer Boy Studios), who will reflect upon ‘where we are currently’ over a range of issues linked to race, identity and prejudice.

It is one of the signs of change that a major law firm (and DLA Piper is not alone in this) is leading on such an event. But the issue of race now stands alongside gender and sexual orientation as a matter of fierce debate in wider society. And not far behind lurk conflicts and controversy over religious adherence and national identity which can be even more explosive.

Of course the word MOSAIC itself has two meanings highlighting that identity and language are often ambiguous. But in this era of increasingly ‘binary’ culture wars where should – and where do – lawyers stand? Or should they just ‘check their privilege’ and get on with the job?

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

  • Swiss Lawyers Score Goals (but face Penalties)

– Irwin Mitchell Move Up the League

– The Space Time Continuum

– Addleshaws Goes Ever Greener

+ CONTRIBUTED ARTICLES

– The UK’s Modern Slavery Act 2015 is getting tougher explains Sarah Lambert-Porter

Akhmedova v Akhmedov: Piercing the corporate veil by Family Judges in England by Daria Sakhno,

+ LEGAL INSIGHTS OF THE WEEK

 Appeal by the Whitty attacker?

– Goodbye to SDLT

Brexit is no barrier for data flows

+ APPOINTMENTS OF THE WEEK featuring Clyde & Co and Kingsley Napley

+ E-VENTS

THE LEGAL DIARY OF THE WEEK

Swiss Lawyers Hit Goals (But May face penalties)

Still sitting pretty in Switzerland



What is it suddenly with the Swiss? In yesterday’s edition of The Lawyer the headline ran ‘Switzerland is fighting off rivals as it bids to remain the jurisdiction of choice’. And then in yesterday’s Reports Legal the country received a big, generous endorsement. ‘Switzerland: The magic still works’ it declared.

So, yes, everyone is talking about Switzerland. And most of the comment is positive. As Reports Legal observes, “At the heart of a continent so badly ravaged by Covid-19, Switzerland is emerging from the pandemic in relatively good shape. And so are Swiss law firms. Compared to its much larger neighbours, France and Germany, where the economies contracted by 5 per cent and 8 per cent respectively, Swiss GDP dipped by only 2.9 per cent last year. ‘This shows a robust economy,’ suggests Hans Rudolf Trüeb, partner at Walder Wyss. ‘Apart from tourism, events and restaurants, Covid didn’t affect GDP meaningfully. Above all, it hasn’t affected the legal market: rather the contrary.’ 

And yet not quite everything in the Swiss line-up is perfect. In terms of diversity in particular the Swiss seem to be still stuck in the 1970s. Indeed until very recently there was no female managing partner of any ‘prominent, full-service law firm’. So the appointment of Sandra De Vito Bieri as managing partner of Bratschi’s is a significant landmark by which it is hoped other firms will start to steer.

As the Reports Legal article points out it is mainly a generational issue. “There is a glass ceiling in Switzerland and the legal profession here is so backward in terms of women, I could almost cry,” one woman is reported as saying. “ It’s patriarchal. You have law firms with a lot of 50-plus, white, male, Swiss German guys who don’t want women, or who don’t want to make the effort to put them in the pipeline. But they are going to retire in a few years.’

So the clock is ticking – and already it may be into ‘extra time’. Soon there will be penalties.

For the Switzerland Report (July 2021) go to reportslegal.com

Irwin Mitchell Move Up the League

Given the problems they face, career-blocked women lawyers in Switzerland might consider swapping the mountains and lakes of their native country and opt instead for the charms of an Irwin Mitchell office in Sheffield, Birmingham or Gatwick (or, indeed, London, Glasgow or Manchester). The firm has just been ranked – for the second time – as one of the best firms for women in the UK by the Great Place To Work Institute and it now has women making up 40% of the executive board plus 47% of the partners. It also has one of the lowest gender pay gaps in the legal industry.

“We’ve used the challenges faced over the last year to listen and respond to the needs of our colleagues and this latest positive ranking demonstrates that while work remains to be done, we are moving firmly in the right direction,” said Susana Berlevy, Chief People Officer.

 “ Our latest ‘flexible by choice’ and family policies show we continue to innovate to put diversity, inclusivity and responsible business at the heart of what we do, improving opportunities at Irwin Mitchell for people from a wide range of backgrounds.” So book that flight out of Zurich now.

The Space Time Continuum

Law firms offering add-on services is now becoming normalised. The latest entrant to the field is Browne Jacobson which has launched Space + Time, a brand new dedicated executive coaching programme which offers support to senior business leaders “to ensure that they are working to the best of their abilities, covering issues such as leadership, prioritisation, horizon scanning and key decision making.”

Fronting up the programme is the firm’s former managing partner turned consultant, Iain Blatherwick (pictured above) who lead the firm for eleven years through a period of key expansion. It is run in partnership with consultancy firm 10Eighty, and is supported by a team of expert coaches including Susan Mabbott, a former Browne Jacobson partner-turned-consultant.

Participants can come from a wide range of sectors and will be encouraged to ‘reflect on their performance, priorities and development needs’. “The Space + Time coaching programme goes beyond providing clients with the right legal advice,” says Iain Blatherwick. “It allows the firm’s coaching team to really get under the skin of the key issues that some of our clients are facing when running a business. Coaching is a very powerful tool which can really help people achieve their full potential. I would advocate any leader, at the start of their journey or perhaps in a more established position, to consider it.”

Addleshaw’s Goes Ever Greener

We’re in the middle of London Climate Action Week (LCAW) – the ‘annual event bringing together world-leading climate professionals and communities across London and beyond to find practical solutions to climate change’ – and Addleshaw Goddard has demonstrated its committment to the cause by becoming a founding signatory of the Greener Litigation Pledge.

GLP invites legal professionals across England and Wales to ‘take active steps to reduce the environmental impact of their dispute resolution services’ especially by limiting the production of printed documents and engaging with courts to support changes to rules, procedures and practices. So far eight solicitors’ firms, barristers’ chambers and other dispute resolution professionals have actively signed up to it including Mishcon De Reya, Freshfields Bruckhaus Deringer, HFW and Simmons & Simmons.

 GLP is now part of Addleshaw Goddard’s wider menu of sustainability initiatives including membership of The Chancery Lane Project (reported on previously by the Legal Diary) which brings together lawyers from around the world to develop new contracts and model laws to help fight climate change.

“The legal profession has a major role to play in the critical work required to limit carbon emissions through the enforcement of laws in order to try to arrest the potentially catastrophic impact of global warming,” says Mark Molyneux, Head of Disputes for Addleshaw Goddard. “We all need to make sure that we play our part in that work by looking at how we operate as a profession and committing to more sustainable business practices wherever possible. The Greener Litigation Pledge is a great initiative which we all hope will play a part in helping the legal sector to become more environmentally responsible over the coming years.” Other law firms are now expected to be green with envy.

CONTRIBUTED ARTICLES OF THE WEEK  

The UK’s Modern Slavery Act 2015 is getting tougher

Chattel slavery’ may have ended in the 19th century but at last serious action is being taken against ‘modern slavery’ explains  Sarah Lambert-Porter (below) of Ropes & Gray’s anti-corruption and international risk team

Back in September 2020, the UK Government announced an “ambitious package” of “powerful new measures” to strengthen the Modern Slavery Act. Their message:  “It’s not enough for government and businesses to simply say they don’t tolerate modern slavery.”  Notable changes would be:

·     Extending reporting obligations to public bodies with budgets over £36 million.

·     Mandating specific reporting topics and publication on a new Government-run registry.

·     Introducing financial penalties for commercial organisations failing to meet their obligations under the Act.

The Government has twice indicated that the necessary legislation will come ‘when Parliamentary time permits’ – a regular refrain since the pandemic began.

The time has come’, the Walrus said

Those waiting may have sat up to attention on 15 June 2021, when the Modern Slavery (Amendment) Bill was introduced to the Lords as a private members’ bill sponsored by crossbench peer Lord Alton of Liverpool. Nothing is guaranteed; private members’ bills seldom progress successfully through both Houses given limits on permissible parliamentary time and difficulties achieving cross-party support.

 Success would give the Act some real teeth. The Bill seeks to create two new offences and introduce new disclosure and substantive compliance requirements. In outline:

·     It will be an offence:

o  to supply a false or incomplete information in modern slavery and human trafficking statements (currently required in New South Wales and proposed in Canada).

o  to continue to source from suppliers that fail to demonstrate minimum standards of transparency, after having been issued a formal warning by the Independent Anti-slavery Commissioner – a new power for the Commissioner. Conviction on indictment will lead to a fine of 4% of global turnover (up to £20 million).

·     The additional transparency requirements, which go beyond disclosure and will necessitate enhancements to many companies’ compliance programmes, will oblige companies to:

o  publish and verify information about the country of origin of supply chain sourcing inputs.

o  arrange credible external inspections, external audits, and unannounced external spot-checks.

o  report on the use of employment agents acting on behalf of an overseas government.

Even if not passed, it is clear that the UK Government plans to step up the legal and reputational risks for businesses operating in the UK and other countries have tended to follow suit.

For more go to: https://insights.ropesgray.com/post/102h0v0/the-uks-modern-slavery-act-2015-is-getting-tougher

Akhmedova v Akhmedov: Piercing the corporate veil by Family Judges in England by Daria Sakhno, Zaiwalla & Co

When deciding where to file for divorce, international parties often consider factors such as their primary place of residence, where the marriage was registered, or the location of assets. The recent judgment in Akhmedova v Akhmedov [2021] EWHC 545 (Fam)(“Akhmedova”) highlights the potential importance of also considering the range of procedural advantages available in a particular forum when making that choice.

English courts will aim to reach a judgment enabling the parties to meet their financial needs, while prioritising the needs of any children. To achieve that, English judges use several well-established precedents, as well as legal tools, such as ‘piercing the corporate veil’. This has particular relevance in situations involving high-net-worth families, where a spouse may have assets held through complex corporate structures.

While the device of piercing the corporate veil is commonly known in corporate cases where the court may, in exceptional cases, disregard a company’s legal personality as separate and distinct from its shareholders, it has seen increasing recent use in family proceedings. In Akhmedova, the High Court applied the doctrine of piercing of the corporate veil based on the ‘evasion principle’ to the actions of Mr Akhmedov, having concluded that he hid part of his assets, namely the luxury yacht ‘Luna’, which was previously owned by Mr Abramovich and is the second-largest expedition yacht in the world, through complex offshore asset structures. The Court found that certain corporate entities were merely the ‘alter ego’ of Mr Akhmedov and should be joined to the proceedings as separate respondents. 

In Akhmedova the English courts demonstrated their ability to keep pace with the continually developing ways in which high-net-worth spouses hold and attempt to shield their assets. Moreover, when deciding divorce cases, English family judges can draw upon tools inspired from corporate litigation, even if in practice it is become exceedingly rare for a claim to pierce the corporate veil to succeed in England in a company law context. The question remains open if whether the decision to pierce the veil in family proceedings will bind a future court in a commercial dispute where a creditor seeks the personal liability of the spouse that owns the company.

LEGAL INSIGHTS OF THE WEEK 

The Whitty Assault

Sacked by his employer for attacking medical supremo Chris Whitty, what are the prospects for estate agent Lewis Hughes ?

Not so witty Now?

“Essentially someone could be dismissed if the conduct in question amounted to gross misconduct. In this instance, although the actions did not relate to something he did whilst working, if they could bring the employer’s reputation into disrepute, it could be seen as a reasonable response.

“The first point here to note is whether he has sufficient length of service to bring a claim for unfair dismissal. If he did not have two years’ service, he can’t raise that claim anyway. It may well be that he hadn’t been with his employer for that long anyway.

“If he did, the Tribunal will consider all the circumstances. As his behaviour has been well publicised and condemned by all [Including the PM], then provided a reasonable investigation and disciplinary process was followed before dismissing him, the estate agency [which employed the person responsible] may be able to persuade a Tribunal that by continuing to employ him, it would undermine them, and a lesser disciplinary sanction would not cure that.” 

Philip Richardson, partner and head of employment law at Stephensons

GOOD-BYE’ STAMP DUTY HOLIDAY

“It has been a busy few months for the property market, as purchasers look to take advantage of the extended SDLT holiday. To benefit from the majority of the advantage, purchasers must substantially perform contracts (normally by completing the transaction) by the end of June.  Those that do so can save up to £15,000 in SDLT.

“Those missing the deadline should not despair; the SDLT holiday (albeit in reduced form) does not expire completely until the end of September, and a saving of up to £2,500 may still be available.

“It is important to remember that whilst the end of June SDLT saving is significant, it pales into near insignificance when viewed against the overall costs of buying a new home.  Perhaps some buyers have paid more than they might otherwise have in order to beat the SDLT deadline.  Hopefully any such over payment will not be greater than the SDLT saving they were chasing.”

Tom Allfree, Head of Residential Property at Wedlake Bell

“The impact of the extended stamp duty holiday has been tremendous. This is clear from the significant increase in instructions across the country and relating to all values. There has been an unprecedented number of completions in June.

It is the kick start the residential property market required to address pent up demand, which has been sluggish for several years. Let’s see if the momentum continues with the lesser stamp duty saving.”

Hema Anand, Partner and Head of Residential Property at BDB Pitmans,

“The SDLT holiday has spurred on the market and deals which would have previously taken many months have been rushed through by solicitors and banks working overtime to try to help as many people as possible achieve the SDLT saving.  There have been many buyers who have been lucky enough to complete on or before 30 June 2021 but there is little that buyers can do if they have missed the deadline except to try to renegotiate the purchase price with the seller.  Until the end of September there is at least a small saving that can still be achieved.”

Lucy Barber, Partner and Head of Residential Property at Forsters 

Brexit is no barrier for data flows

 This week the The EU Commission adopted two adequacy decisions for the United Kingdom to allow the free movement of personal data from the EEA to the UK in accordance with the GDPR. 

 “You can almost hear the collective sigh of relief from organisations across the EU and the UK on hearing this news. After months of uncertainty, the 30 June deadline approaching and the recent approval of new EU SCCs, for now, no additional measures will be needed to transfer personal data lawfully.

The recognition of the UK’s data protection system as aligned with the EU should provide great economic benefits as well as remove uncertainty, as data can flow freely across the North Sea, Irish Sea and Channel. Crossing the Atlantic, however, remains one of life’s more difficult challenges. Perhaps it is one that we should now turn to.

 Rohan Massey, Ropes & Gray’s Privacy, Data Protection and Cybersecurity team 

“The European Commission has decided that the UK will continue to be seen as a safe country for the purposes of personal data flows from the EU. The news will be greeted with much relief by businesses, which would otherwise have been faced with having to consider costly alternative measures to continue those data flows.

“But no one should assume that the story ends here – the European Commission will continue to monitor the UK’s data-related laws and practice, and if it feels there is notable divergence from the EU model, it has the power to cancel the agreement. There will also certainly be some people watching closely from the sidelines, such as those in the civil society sector, who may bring challenges to the legality of the decision itself, or of data transfers made under the decision.”

Jon Baines, Senior Data Protection Specialist, at Mishcon de Reya

APPOINTMENTS OF THE WEEK


 Laura Harper has been appointed by Kingsley Napley LLP as a partner in its Private Client team. Harper’s arrival brings the total number of partners at the firm to 70 (38 of which are female [54%]).

Harper advises both UK resident and non-domiciled individuals, families and trustees on a wide variety of UK tax, trust law and international estate planning issues, including the planning to be undertaken when moving to or from the UK. She is also expert in charity law and advises family offices and UHNW individuals on how to structure their philanthropic projects in the most tax efficient manner, as well as charitable entities on their responsibilities as the beneficiary of philanthropic gifts.

She joins the firm from the London office of McDermott Will & Emery where she was a member of the international tax advisory team in the Private Client department for the last three years. Prior to that she was a Senior Associate at Blake Morgan.

Laura was rated “one to watch” in Chambers and Partners in 2019 and was selected in the Top 35 under 35 by e-Private Client in 2017. She is a fully qualified member of STEP and has completed the STEP Advanced Certificate in UK Tax for International Clients.

Jan Spittka has been appointed by Clyde & Co to its Dusseldorf office to extend its data privacy and cyber capabilities in continental Europe. Spittka joins from DLA Piper and has a special focus on complex data-related issues such as the introduction of new technologies, international data transfers and cloud computing projects. In particular, he advises on privacy and data protection as well as IT security requirements in the insurance and financial services sector.

Dr. Henning Schaloske, Partner and head of the firm’s German insurance practice, comments: “Jan is an important addition to our German and European corporate insurance services. The pandemic and the consequent shift to remote working, allied to increased regulation and enforcement, have made cyber risk and incidents all the more real for businesses. Jan will help us serve those businesses in Germany and continue to advise them in a joined-up manner across the globe.”

Clyde & Co regards itself as the world’s pre-eminent insurance law firm, offering great depth of coverage and defence capabilities across every line of insurance and reinsurance business, from the smallest claim to the most complex loss.

E-VENTS

Georgetown Law and EYCompliance & Legal Risk.

In episode 1, join our host Ronald J. Coleman (“RJ”), Georgetown Law, as he speaks with Jennifer Joyce, EY, and the Hon. John M. Facciola (Ret.), Georgetown Law, about the eDiscovery challenges posed by social media and other ephemeral data. Be the first to listen, subscribe, and let us know what you think!To keep up with our podcast, click the link below:

Compliance & Legal Risk Website

BIICL is delighted to host the Second Annual Asia-Pacific Europe Law Institutes Alliance (APELIA) Conference which will take place on July 12 2021. The theme of the conference is “Artificial Intelligence (AI), Trade, and the Rule of Law” and we would like to invite you to join us for this prestigious event which will include contribution from scholars of prominent law institutes in Asia-Pacific and Europe, as well as policymakers, judges, AI scientists and entrepreneurs. 

Artificial Intelligence (AI), Trade, and the Rule of Law

12 July 2021

We have been captivated by Alpha-Go, experiencing driverless cars, considered smart contracts, tempted by crypto currencies, relying on the use of AI robotics in production, distribution, and product delivery; most importantly we are witnessing, with relief, its targeted application in the development of new vaccines during the COVID-19 pandemic. However, AI is also challenging scientific, ethical, legal, and regulatory norms. Where are we now and where are we heading as regards AI technologies? Who is responsible for AI’s applications? How do we eliminate AI bias? How do we deal with cross-border data flows? What legal status may be most beneficial for stakeholders? Although initiatives on AI are being suggested and promoted by national and international actors, there is still a long way to go to reach a consensus on AI under the combined effect of a technological revolution and international political and trade arm wrestling. This multidisciplinary conference will examine and debate those challenges against an international context.

Find out more about the conference and download the programme here

We hope you are able to join us. If you would like to register please click the link below:

RSVP

We hope that you have found this edition of the Legal Diary interesting and even useful. If so please relay on to colleagues and friends.

We shall be back next week so please keep sending your stories, insights and legal analysis to

fennell.edward@yahoo.com

Enjoy the match – whether football or tennis – tomorrow.

Edward Fennell’s LEGAL DIARY

Friday June 25th 2021 Edition 63

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

SHORT THOUGHT OF THE WEEK

Just right for your desk? courtesy of csi.uri.edu

Digital transformation – that’s the big theme whoch comes through much of our coverage today. It was at the heart of Legal Geek’s North American virtual conference on Tuesday. It was the subject of the winning essay for this year’s City of London Solicitors’ Company Prize. And DucTrang, Managing Director at Major, Lindsey & Africa discusses it in his contributed article below.

As with the industrial revolution of the late 18th/ early 19th centuries, the consequences of a wholesale digital adoption will be enormous for all facets of the legal sector – financially and socially as well as in terms of process. But is there any chance of a return – say in 50 years time – to the artisan lawyer? What’s the possibility that, two generations away, it will be cool to go to a little lawyer’s workshop above a deli in the High Street?

For family law that could well work. But, of course, there is always the question of professional ethics. In a powerful piece below Steven Glasser of Laurus comments, “I’ve come across solicitors in my work who, without a shadow of a doubt, string out cases by generating correspondence and ramping up the acrimony so they go on for longer and generate larger fees.” Can ‘digital transformation’ remedy that?

The LegalDiarist

In this week’s edition

+ THIS WEEK’S LEGAL DIARY

– Speeding up in Slowville – courtesy of Legal Geek

– Slaughtering Low productivity

– Mediators put nexa on the line

Corporate Counsel Benchmarking

+ CONTRIBUTED ARTICLES OF THE WEEK

– DIGITAL TRANSFORMATION: CAN IT GO FASTER? asks Duc Trang, Managing Director at Major, Lindsey & Africa

– ETHICAL FEES CAN BRING FAMILY LAWTERS COMMERCIAL SUCCESS argues Steven Glasser of Laurus

-EUROPEAN REGULATORS LAY OUT THEIR EXPECTATIONS ON INTERNATIONAL DATA TRANSFERS explains Eduardo Ustaran of Hogan Lovells

+ LEGAL COMMENT OF THE WEEK

The Ministry of Justice has released its Quarterly Family Court Statistics: October-December 2020. Comments from Wedlake Bell, Seddons and Thomas Mansfield

+APPOINTMENTS OF THE WEEK from 11KBW and Thomas Mansfield

+ E-VENTS with Policy Exchange

THIS WEEK’S LEGAL DIARY

Speeding up in Slowville – courtesy of Legal Geek

Highpoint for the Legal Diary this week was catching Tuesday’s workshop ‘Captain No-Code and the Quest for Super-powers’ as part of  Legal Geek’s North America Conference. Against a background of a stormy, rainlashed super-metropolis a team of superheroes was combatting the powers of Slowville – the deadweight of an anti-technology dystopia. As the blurb said, “Join this interactive session for legal innovation as you’ve never seen it before. Join our speakers as they embark on a journey through Slowville – the city consumed by manual, time-intensive tasks – to find and unlock super-powers.”

An impressive panel – including Nikki Shaver, managing director, Innovation and Knowledge at Paul Hastings and Adam Curphey Innovation Engagement Senior Manager at Reed Smith – explained their heroic vision of life beyond Slowville based on ever more sophisticated ‘hands-free’ technology to the whoops of an admiring audience. (One panel member even turned up in a blue tee shirt and a red mask – although these days one cannot tell whether he was actually wearing these or whether they had been mischievously teched on to him). Definitely worth a catch-up watch if you have access to a ticket. https://www.legalgeek.co/north-america/

Slaughtering Low Productivity

Talking of escape from Slowville, Charlie Wells, a Trainee Solicitor from Slaughter and May, was the winner of this year’s City of London Solicitors’ Company Prize with an essay on the theme “How must City law firms adapt, including through using the lessons learnt from present challenges, to thrive in the future?

Charlie Wells – Legal Futurologist

Adopting and developing legal technology – very much along the lines of the Legal Geek event – and following its logic to the full was a key part of Wells’ message.

To stand apart from competitors, firms should reimagine their approach to developing lawyers with a reorientation of resources,” he wrote. “To prevent lawyers being held back by low productivity processes, firms should invest in digital solutions that enable lawyers to focus on more enriching work. Firms should rapidly adopt and integrate technology, including cloud software and artificial intelligence, into work processes to reduce time spent on tasks such as due diligence.”

Added on to that, however, was the proposal to ‘outsource much more to third party lawyers and reduce costs by cutting superfluous backroom staff, which has been made possible by remote working. Indeed, a firm could retain staff, despite fierce competition for talent, by allowing lawyers to focus on complex legal work rather than mundane processes.”

Wells’ vision makes sense but it suggests that the future of the legal industry could be based on a kind of gig-economy with a secure elite and a dependent flexible and remote workforce. Will definitely suit many – but maybe not all.

Read the article in full in the Summer Edition of City Solicitor Magazine (p.28): http://www.citysolicitormagazine.com/old-issues/city-solicitor-112.pdf 

Mediators put nex on the line (for capital offence?)

If we are talking about doing things differently then worth taking a look at nexa law which has just launched its alternative dispute resolution offering under the branding ‘nexamediate’.

As nexa points out, its new mediation team can ‘help resolve commercial, workplace and family disputes’. The roster of team members is pretty impressive. All of them are battle-hardened and have an impressive track record of previous firms behind them including Ince & Co, Taylor Wessing, Bond Dickinson as well as chambers’ experience and big public sector organisations. “Every member of the team has a background in dispute resolution as a solicitor or barrister, which gives each member a valuable insight into the dynamics of a dispute from the perspective of both a mediator and an interested party,” says the firm.

James Wilson

Probably most prominent is James Wilson, previously a senior partner of Ince & Co where he led the shipping disputes team and advised many of the world’s leading shipowners and insurers. “He now uses his expertise to mediate maritime, insurance and trade disputes,” says Nexa. Meanwhile Jane Gunn aka The Barefoot Meditor and author of “How to Beat Bedlam in the Boardroom and Boredom in the Bedroom” was previously a city solicitor at Taylor Wessing and is now a mediator, author and speaker.

Jane Gunn

Like many of the new-look providers in the industry Nexa’s operations are based on experienced lawyers wanting to operate in a different way. “nexa law is becoming the platform of choice for ambitious and autonomous self-employed lawyers thanks to our flexible approach and supportive culture,” said the nexa Co-CEO Nigel Clark. 

Corporate Counsel Benchmarking

Just out yesterday was the annual legal benchmarking survey devised by the The Association of Corporate Counsel (ACC) in conjunction with Major, Lindsey & Africa (MLA) which tracks performance and metrics within almost 500 legal departments in 24 industries in 30 countries.“The report gives law department leaders a wealth of data for peer comparisons and benchmarking across a variety of metrics in order to assess performance, results, and efficiency and take a data-driven approach to charting the legal operational and managerial goals to be achieved.” said Veta T. Richardson, president & CEO of ACC. 

According to the report ‘Tracking diversity remains a challenge’ – though with considerable variation across company sizes. One of the key findings was that 29 percent of companies now track internal diversity – and of those that do about half have a formal strategy to improve in this area.

By contrast, however, the report also shows that that the vast majority (74%) of corporate counsel in the survey specifically measure the diversity of the teams within the firms they engage with particular interest in the number responsible partners (49%), promotions to partner (25%) and the composition of leadership in the firm (22%).

Interestingly, there was also growing evidence of use of alternative legal service providers with 12% of companies increasing their usage of these providers in 2020. Full survey results, broken down further by company revenue, industry, legal department size, and company type, are available on ACC’s website.

+ CONTRIBUTED ARTICLES OF THE WEEK

DIGITAL TRANSFORMATION: CAN IT GO FASTER?

ask Duc Trang, Managing Director at Major, Lindsey & Africa

In the throes of the pandemic, both law firms and in-house legal teams rushed to embrace digital tools to enable remote work. However, despite video calls and remote working becoming the norm, too many organisations continue to fail to make the most of the potential for meaningful digital transformation.

Duc Trang

Research shows that top performing organisations employ five times more data analytics than poor performers. However, for digital tools to deliver valuable change, they need to be deployed by individuals who not only know how to use technology, but also have the lateral thinking to understand how to make the most of the data insights generated by new digital processes. How, then, can firms and corporates ensure they equip their teams with the mindsets and skills for the digital age?

A willingness to experiment and to step out of one’s comfort zone is crucial when it comes to effective digital transformation, since this relies on individuals being open to learning and understanding new ways of doing things. The evidence suggests that hyper-specialists, commonly found in the legal profession, are less suited to this challenge, whilst those with a more generalist training tend to be better able to adapt their critical thinking.

Digital transformation is more than just about learning a new skillset – it’s about re-thinking the very way in which we learn. Organisations should, therefore, seek out thinkers and learners who are able to apply the deep knowledge they have gained in other areas of expertise to the new opportunities presented by digital technology.

The good news is that digital-first skills and an open mindset can be learned. So, GCs and law firm management teams would be wise to review their current training programmes to ensure there is sufficient scope to upskill their teams in the right way. In addition to exposure to digital skills, training on commercial acumen, systems thinking, and complex problem assessment / solving, for example, can prove particularly valuable.

If law firms or corporates invest in building a digital-ready team that can harness the potential offered by digital transformation to create real value for their clients, they will be extremely well placed to steal a march on their competitors.

ETHICAL FEES CAN BRING FAMILY LAWYERS COMMERCIAL SUCCESS argues Steven Glasser

In the family law arena, there is really nothing more significant for a lawyer than ethics; the importance of ethics stretches far and wide, into every corner of practice. But, for me, it is the issue of fees that I particularly want to focus on in my dealings with clients. At Laurus we always prioritise the client experience and that nearly always means reaching a solution as quickly as possible, often using ADR. We have very few final hearings. Not only is this better emotionally for the client, it prevents cases dragging on and costs spiralling.

Steven Gasser is a co-founder and the head of the family team at Laurus, the London law firm

Our  priority is  solely  to drive towards the  right  outcome for each and every  client regardless of the facts and complexity of the case and to ensure that the client receives the best possible experience during what is often a difficult time.

I’ve come across solicitors in my work who, without a shadow of a doubt, string out cases by generating correspondence and ramping up the acrimony so they go on for longer and generate larger fees. This generally results in the parties becoming more polarised than they needed to be and, of course, unnecessarily inflated costs.  The Courts appear to have woken up to this and there is now a noticeable focus on fees from them. But while capped fees have been mooted for some time, in my opinion it’s unrealistic to expect this will ever happen – although I think the chance of capped hourly rates at some point in the future is more likely.

Being transparent, giving realistic estimates, keeping these updated and avoiding generating excessive fees is not just the right thing to do ethically, it also makes perfect sense commercially. We [at Laurus] don’t spend much on marketing because we don’t need to, all our work comes from reputation and word of mouth, referrals from clients who recommend us because of the positive experience they have had with us. It’s a virtuous circle as we aren’t under pressure to bring in fees to cover these outlays.

Ethics around fees is relevant to talent attraction and retention, particularly among the younger lawyers coming through who tend to be more purpose driven; if we want to bag the best talent for our firm, we must demonstrate the highest ethical standards in all that we do.

Ethics is also about how you manage your practice and for us, it doesn’t stop once a case is closed. We try to keep in touch and listen to what the clients are up to and how things are changing for them. I’d say that about 95% end up being in a good place. It’s incredibly satisfying for us to know we played a part in that.

EUROPEAN REGULATORS LAY OUT THEIR EXPECTATIONS ON INTERNATIONAL DATA TRANSFERS explains Eduardo Ustaran

Eduardo Ustaran

After a long wait of over seven months, the European Data Protection Board (EDPB) published this week the final version of its Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data in the context of international data transfers.  In other words, this is the regulators’ recipe for ensuring lawful transfers of personal data from the EU.  Although the revised guidance is by no means legally binding, it confirms the collective views of the EU data protection authorities in this area and many global companies are likely to regard it as an extension of the GDPR.

As expected, this version retains the approach of the original one by setting out the recommended six steps to ensure compliance with the Schrems II decision of the European Court of Justice, which was primarily concerned with avoiding disproportionate access to EU personal data by foreign governments. Two of those six steps are particularly important, namely the assessment of the law and practices in force of the third country, and the adoption of any necessary supplementary measures to bring the level of protection of the data transferred up to the EU standard of essential equivalence.

The good news for organisations attempting to assess the scope and effect of other countries’ laws is that they may take into account the practical experience of the importer in dealing with government access requests. This provides a welcome degree of realism to what would otherwise be a fairly theoretical legal analysis. However, the EDPB points out that this assessment needs to be done with due diligence and thoroughly documented, as the competent supervisory or judicial authorities may request it and hold the parties accountable on that basis.

The main emphasis of the document continues to be on the implementation of additional safeguards that may be required to protect the data beyond the standard contractual clauses approved by the European Commission.  These additional measures are explored in much detail by the EDPB, which splits them into technical measures and contractual measures. With regard to the technical measures, the EDPB’s position remains essentially unchanged and from their point of view, they must render the personal data completely inaccessible to be effective.

Given the EDPB’s stance on the use of technical measures, the contractual measures may in practice provide the best additional protection for the purposes of meeting the Schrems II requirements. All in all, the regulators place the onus firmly on those involved in exporting or importing EU personal data and it is clear that any future regulatory scrutiny in this area will be guided by the detailed approach set out in these recommendations.

Eduardo Ustaran is a partner at Hogan Lovells

LEGAL COMMENT OF THE WEEK

Yesterday the Ministry of Justice released its Quarterly Family Court Statistics: October-December 2020. Here’s the reaction:

“The quarterly Family Law Statistics for January-March 2021 reflects that the 30,420 divorce petitions filed are up 2% on the equivalent quarter in 2020 which makes interesting reading when one considers there were less marriages. The question has to be asked as to whether divorces are now on the increase because of the pandemic?  Is this the appropriate time for the family departments in England and Wales, whose turnover will no doubt increase because of the difficulties the pandemic has created for society, to volunteer to assist the Department of Justice deal with the likely overwhelming workload the MoJ will experience? This has been done successfully in other countries in the past on a no cost basis to the MoJ.  No doubt this will cause a stir amongst family practitioners who are already experiencing burgeoning caseloads.  Sadly domestic violence remedy order applications have increased by 12% compared to the same period last year.”

 Charmain Hast, Head of Family at Wedlake Bell

“Not surprisingly the latest MoJ statistics show yet another increase in the number of divorces in the period January to March 2021.  Lock down has put a huge strain on many couples for a number of reasons, not least of all too much time together, time to reflect on relationships, and life generally. Interestingly, mean average time from petition to decree nisi was 27 weeks, and decree absolute was 51 weeks – down 1 week and 2 weeks respectively when compared to the equivalent quarter in 2020. Whilst the median time to decree nisi and decree absolute was 17 and 31 weeks respectively. This highlights the strength of the court system becoming increasingly more efficient  as a direct result of the divorce process going on line.”

Neil Russell, Partner at Seddons,

“The Ministry of Justice have released the Family Court statistics for January to March 2021. The court system seems to be maintaining its recovery from the COVID-19 pandemic and the inevitable impact upon the judicial system. 

Since the last quarterly review there has been an increase in the number of cases commenced in the Family Courts with a rise in financial remedy applications (29%), domestic violence (15%), private law (5%) and matrimonial and adoption cases (1%).

There is improvement in the average time from a divorce petition to pronouncement of decree nisi by 1 week and from decree nisi to decree absolute of 2 weeks. The average time frame from a petition to decree nisi is 27 weeks and from petition to decree absolute is 51 weeks. The latter figure is extended by the fact that in many cases, parties have to finalise their financial agreement before applying for decree absolute.

However, the time frame from petition to decree nisi is still too long. The court is working on improving their IT systems and the online roll out is gradually eating away at the backlog. The introduction of no-fault divorce (now due April 2022) will improve the time frames for getting to the decree nisi stage (which will be called a conditional order), to 20 weeks from the date of the petition.

 Whilst the court struggles with backlogs and a rise in family law cases generally, couples can eliminate the need to suffer judicial delay by mediating their family law dispute or instructing collaborative solicitors. Ultimately, the court will still need to process the petition and the final agreement (the consent order), but the bulk of the work can be kept out of the courts. Indeed, collaborative agreements are usually fast tracked to a judge for approval.”

Susi Gillespie, Partner, Head of Family Law Department, Mediator and Collaborative Lawyer at Thomas Mansfield Solicitors:

APPOINTMENTS OF THE WEEK

11KBW has recruited Jamie Susskind as a new tenant. Susskind (call 2013) specialises in High Court commercial-employment cases and tribunal litigation. He also has a general commercial/arbitration practice, and a developing practice in information law.

Jamie Susskind

Susskind has a particular interest in data governance, privacy law, and free speech and has written widely on these subjects. Previously he was with the chambers of Gavin Maxwell QC and he has held fellowships at Cambridge and Harvard Universities as well as at the Berggruen Institute. He is the author of Future Politics: Living Together in a World Transformed by Tech (It can also be said with some confidence that his dad knows a thing or two about digital transformation, comments The LegalDiarist).

Thomas Mansfield Solicitors has appointed Paula Kumar as a new new partner and Head of Dispute Resolution.  Specialising in complex commercial, employment and media disputes, Kumar was formerly the head of Dispute Resolution and Employment at Ignition Law, a firm focused on start-ups, scale-ups and entrepreneurs.

Paula Kumar

Established in 2004, Thomas Mansfield Solicitors has grown steadily and this latest expansion reflects increasing market demand for litigation and dispute resolution services. Kumar will work alongside Consultant, Paul Thomas, who recently secured one of the most significant judgments on costs in 20 years, in an ongoing private equity partnership dispute between Melford Capital Partners (Holdings) LLP and Others and Frederick John Wingfield Digby. 

Neill Thomas, Managing Partner and Co-Founder of Thomas Mansfield Solicitors comments, “Through the businesses our employment law team are working with we have found that there is a substantial demand for our advice on litigation and dispute resolution matters. With Paula’s help we plan to grow the team and develop the offering further.”

E-VENTS

Policy Exchange invites you to

Making a Success of Levelling up

with

Andy Haldane
Outgoing Chief Economist, Bank of England

Chaired by

David Goodhart
Policy Exchange

Time & Date

Monday 28th June 2021

13.00 – Webinar start
14.00 – Webinar close

Registration Register Here

https://us02web.zoom.us/webinar/register/WN_Y3JzGIOnSgmA_7fGfoi_OA

The conversation will be broadcast through Zoom. It will be live streamed on YouTubeTwitter and Facebook.

We hope that you have enjoyed – and maybe found useful – this edition of THE LEGAL DIARY
If so, please relay on to colleagues and friends
And please continue to send your news, insights and comment to
fennell.edward@yahoo.com
Have a good weekend

Edward Fennell’s LEGAL DIARY

Friday June 18th 2021 Edition 62

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

SHORT THOUGHT FOR THE WEEK

– SOMEWHERE FAR AWAY

Best to Look Away Now

Whether it be this evening’s England v. Scotland at Wembley or the decision to postpone the Covid lockdown, most people on this island have better things to think about right now than the instability of devolution in N. Ireland. Yet the chaos in Stormont in the past 48 hours illustrates how vulnerable democracy and the rule of law are within this part of the UK. It is no coincidence then that a group of human rights NGOs, academics and lawyers has warned that new ‘legacy’ proposals from the UK government relating to the actions of British soldiers during the Troubles  “would breach both international law and the domestic Human Rights Act, deliver impunity, bury truth recovery and fundamentally undermine the rule of law”.

The concern is that the legacy bill proposed in the recent Queen’s Speech, “Departs unilaterally from an existing agreement with the Irish government and local political parties.” No-one would suggest that bringing harmony to N. Ireland is easy but this year – the centenary anniversary of partition – underscores how just difficult it is. Combined with the row about the post-Brexit ‘protocol’ agreement one has to wonder whether the rule of law still has much currency on that side of the water.

But, lets be honest, who cares?

The LegalDiarist

In this Week’s Edition

+ LEGAL DIARY OF THE WEEK

– A&O Backs Women in Institutional Investors

– Sustainability is Crucial in a post-pandemic world in Bird & Bird report

– Sports Injuries: It’s Dangerous Out There

– SLAPPS Not Claps for Human Rights Defenders

THIS WEEK’S MEDLEY OF QUICK COMMENTS on mandatory jabs, the Manchester Arena Bombing Inquiry, the Infected Blood Inquiry and extensions to protection from evictions and statutory demands

LEGAL CAMPAIGN OF THE WEEK The ramifications of the great Post Office scandal

LEGAL QUESTION OF THE WEEKThe NHS Digital Database – What are the Privacy Challenges?

APPOINTMENTS OF THE WEEK at Pillsbury and Thomson Snell & Passmore

E-VENTS

LEGAL DIARY OF THE WEEK

A&O Backs Women in Institutional Investors

Getting results on levelling up?

“Our vision is to create a platform for women to share knowledge, network, and find mentoring opportunities,” comments MaameYaa Kwafo-Akoto of Allen & Overy who is now the lead partner for the firm’s new forum for aspiring women in the global institutional investor market.

The Institutional Investor Forum is part of A&O’s wider Gender Equality Network and will offer a series of virtual and in-person events and networking opportunities for women based in financial centres across Africa, Asia, Europe, the Middle East and North America.

Membership will be open to women at a range of institutional investor organisations including asset managers, development finance institutions, family offices, government agencies and so on in both the public and private sectors. And the benefits, the firm points out, will include practical advice by industry-leading coaches, panel discussions on female advancement plus mentoring and networking.

The infinitive highlights that only around one-fifth of senior positions in the sector are occupied by women. “We want to help talented and ambitious women progress by giving them the confidence to be decision-makers, the ability to thrive in male dominated industries, and ultimately help them to reach personal goals,” says the firm adding that this is “regardless of whether you know us or instruct A&O, because it’s the right thing to do.”

For more information on how to join the Institutional Investor Forum contact InstitutionalInvestorForum@allenovery.com.

Sustainability is Crucial in a post-pandemic world

Sustainability is now core to the business strategy of many industry leaders with a growing number of organisations getting involved and shaping sustainability strategies to achieve measurable goals. This is the key message which emerges from a new report by technology-focused law firm Bird & Bird and its consultancy arm OXYGY.

Back in the Spring, Bird & Bird asked 110 clients in luxury, fashion & retail, food & beverage, and hotels, hospitality & leisure across a number of international markets to provide their perspective on a range of sustainability-related topics.

With Bird & Bird’s focus on disruption and innovation, we were keen to understand how our clients are addressing one of the most important issues to date: sustainability,” said Graeme Payne, head of the international Retail & Consumer sector group. “One key finding from the survey that struck us was that more than a third of respondents said sustainability increased in importance in the last year, an outcome that was already underway but accelerated by the pandemic.”

Among the conclusions were that

  • Retail and consumer companies whose sustainability strategy is further advanced than their competitors are 2.4 times more likely to see sustainability as being a significant driver of innovation.
  • They are also three times more likely to see collaboration as extremely important.
  • One third of respondents said sustainability increased in importance in the last year
  • Nearly 80% of all respondents reported that “finding innovative ways to collaborate externally (competitors and partners) is important or extremely important to achieving their sustainability strategies. .

Significantly, the personal ambitions of employees are more advanced than their companies with most respondents (60%) interested in being more involved in sustainability efforts in their companies.

Sports Injuries: It’s Dangerous Out There

As Danish footballer’s Christian Eriksen’s cardiac arrest at the Euros revealed, football can be a major health risk even to those who appear to be super fit.Whether Eriksen can resume his career remains to be seen. The experience of others who have suffered the same episode is not encouraging. So the financial consequences for a world-class player could be momentous.

But an injury on the field even for less well-known players can be just as devastating as the case this week of Leicester City Women’s Football Club player, Mercedes White illustrates. At age 22 Mercedes White, suffered a severe knee injury during a match. Two months following her injury and with no signs of improvement, she was referred to Nottingham University Hospitals NHS Trust, and had reconstruction surgery for a ruptured anterior cruciate ligament and meniscal tear. It took a year before she could return to the game but within minutes of resuming her knee gave way leaving her in agony. Subsequent investigation showed that the ligament had been mispositioned and it took a further year before White could once more kick a ball in a competitive way.

The case was taken up by personal injury specialist Pryers Solicitors who have just achieved a £22,000 settlement for White from the Trusts. It has been a painstaking task. “Leicester City Women’s Football Club is one of the higher leagues of women’s football and Mercedes White is a professional footballer,” said Tamlin Bolton. “Anything that keeps Ms White off the pitch ought to be addressed by specialist doctors, physiotherapists and solicitors.” Whether the pay-out is commensurate with the damage done is probably a matter for the Video Assistant Referee.

SLAPPS Not Claps for Human Rights Defenders

Strategic Lawsuits Against Public Participation (SLAPPs) are being increasingly used by ‘powerful entities’ to marginalise their critics according to the Business & Human Rights Resource Centre. The charge is that the legal system is being used to silence human rights defenders and communities who speak out against corporate abuse to protect our rights and shared environment. “Mining, agribusiness, logging and palm oil were the sectors where these types of lawsuits were most commonly used to drain the resources of those who speak out in support of human rights and the environment,” says the Centre which cites more than 350 cases since 2015 of ‘business actors’using this tactic to intimidate and bankrupt their critics.  

The key findings of the report were that

  • SLAPPs are expensive for Human Rights Defenders (HRDs). The amount of damages sought by those filing SLAPPs in just 82 of the cases totalled to over 1.5 billion USD (information on damages sought was not available for the remaining cases).  
  • Most SLAPPs (304) were brought against individuals, as opposed to organisations (38), underscoring the intimidating nature of the tactic. [Both individuals and organisations were SLAPPed in 13 cases.]  
  • SLAPPs are usually groundless and vexatious in nature. Of the cases for which we could find outcomes, more than four in five alleged SLAPPs were dismissed, dropped or ruled in favour of defendant. 
  • The highest number of alleged SLAPPs occurred in Latin America (39%); Asia was not far behind (25%). There were also high numbers of SLAPPs recorded in France.
  • Lady Nancy Zuluaga JaramilloLegal Researcher, Human Rights Defenders & Strategic Lawsuits Against Public Participation at the Business & Human Rights Resource Centre, commented, “What we have recorded is likely to be just the tip of the iceberg in what is essentially a direct attack on freedom of expression and the legitimate defence of human rights and the environment. Although civil society and human rights defenders have started pushing back against the use of SLAPPs, there is an urgent need for companies, investors and the legal community to step in.”  

THIS WEEK’S MEDLEY OF QUICK COMMENTS

TOPIC: On mandatory jabs for careworkers…

Care together, jab together? Image courtesy of Unison

No jab, no job’ could be a dangerous approach for employers to take. There is not enough evidence to suggest taking the vaccine makes everyone’s working environment safe. If an employer tries to force their employees to receive the jab or decides not to hire someone based on their refusal to get the jab, it could result in employment claims, for unfair dismissal and/or discrimination.

 However, in circumstances where a person is working in the healthcare sector, or with vulnerable children and adults, and refuses to get the vaccine, there may well be more validity to the request by the employer for vaccinations. This will be made more complicated when the government introduce mandatory vaccinations for care workers, as there will be questions raised over how to define a ‘care’ worker, to determine who would fall within the scope of this new policy. The introduction of the mandatory jab, could give employers more flexibility in implementing a workplace vaccination policy. 

Kate Hindmarch, partner in Employment Law at Langleys Solicitors

TOPIC: On the Publication of the Manchester Arena Public Inquiry and Volume One of the recommendations.

Today we welcome the publication of Volume One of the Chair’s report in the Manchester Arena Inquiry. There has been a rigorous and thorough investigation by the Chair, with examination of a substantial volume of complex evidence.  It is clear that he has taken the submissions of the families on board and has kept them at the heart of the process.

The failure to detect Salman Abedi in the City Room was a result of serious and unacceptable breaches which the Chair has rightly identified.  Put simply, a number of organisations failed to keep the public safe on the night of this terrible attack.  Our specialist Safety practice will continue to work with the Inquiry Legal Team to ensure that the monitored recommendations are implemented and, as in previous inquests into terrorist attacks where we have represented bereaved families, we hope these changes will reduce the likelihood of similar attacks in future.”

Hogan Lovells (which represents a number of the victims’ families)

TOPIC: The Government’s decision to extend until March 2022 the ban on evictions of businesses that stopped paying rent due to the coronavirus crisis

Whilst we must strike a balance between tenants and landlords, kicking the can down the road yet again is not solving the problem. If the parties cannot agree now, they will not change their minds in six months when yet further arrears have accrued and more pain will be felt all around.

“We have a specialist court – the Business and Property Court – full of experienced Judges who deal with business and property matters. They are quick, adaptive and business oriented. Surely a simple and cost effective mechanism can be put together to bring about a resolution or solve the problem, at least for the next 12 months.”

Mark Gardner, Excello Law


TOPIC: The Government’s decision to extend the deadline for the lifting of the restrictions on statutory demands and winding up petitions until 30 September 2021

 “The Government has announced that they intend to further extend the restrictions on the issuing of statutory demands and winding-up petitions to 30 September 2021. 

The move is intended to maintain the protection put in place for companies from aggressive creditor enforcement action, as a consequence of coronavirus related debts. Whilst this announcement may come as welcome relief for many, it further prejudices legitimate creditors by kicking the can down the road and delaying the inevitable insolvency of many so called “zombie companies”, whose debts have spiralled over the course of the past year and who continue to exist without any realistic hope of long term recovery.”

Jonathan Cole, Goodman Derrick LLP 

TOPIC: The Infected Blood Inquiry announcement that it will be hearing evidence from many of the key figures in government in the 1980s who were involved in the disastrous policy which resulted in innumerable deaths and long term serious illness.

Making sure it never happens again

This is a hugely important development for the Inquiry process because these figures are central to our understanding of what went on during the critical period in the 1980s when the Government should have been responding to the AIDS crisis and considering the implications for those receiving blood products. 

 “We believe these individuals did know and appreciate the risks but were slow to act. However, a clear account of who knew what, when and how this impacted decisions made at the time, has never been forthcoming. There has been a lot of buck-passing and hiding behind Government protocol until now. I cannot emphasise enough what a massive moment this is for my clients as, finally, we may begin to get closer to the truth and the heart of the problem which led to the suffering of so many. 

 “It is, of course, only right these key witnesses are called to give evidence and the Inquiry is to be commended for bringing them to the stand. 

Des Collins, Senior Partner at Collins Solicitors, legal advisor to over 1500 people affected by the contaminated blood scandal

LEGAL CAMPAIGN OF THE WEEK

The ramifications of the great Post Office scandal – which saw hundreds of Sub-Postmaster convicted of crimes of which they were completely innocent – continue to rumble on (and will do so for many months to come). Here are extracts from a presentation given recently at University College, London by lawyer NICK GOULD of Aria Grace who acted pro bono for three of the victims Janet Skinner, Tracy Felstead and Seema Misra – of the Post Office’s campaign of persecution.

The cheque’s in the post

“Perhaps it’s because during my years in practice I’ve always been a common sense, corporate / deal-doing lawyer, I found trying to help Janet Skinner, Tracy Felstead and Seema Misra over the last 15 months or so, particularly distressing. From when I first heard about this miscarriage of justice, I’ve been disgusted to learn how they and hundreds of others were treated by a dismissive and contemptuous legal system over two decades. No common sense allowed here. I wanted to try and help these extraordinary people, whose lives were destroyed unnecessarily and who are still suffering physical and mental scars decades later—and yes, I know this is not normally what lawyers talk about or what those involved in learning or teaching law, necessarily want to hear. But hear it more lawyers should. It appears that almost the entire legal world has been stunningly silent and found wanting; it still is.

We know Post Office head of security had put in place a protocol for shredding inconvenient documents. That should have raised a huge red flag, but apparently not. What was the direct and awful effect of lawyers and others covering up crucial evidence for years? “

The line pursued by the Post Office had irreparably damaging effects on the innocent victims. One example quitwd by Gould was

Seema Misra, Subpostmistress. “Seema was prosecuted for theft and false accounting by the Post Office in 2010. The judge told her “She had stolen from pensioners.” She was eight weeks pregnant when she was found guilty and imprisoned. She collapsed on sentencing and had to go to hospital. That same day was her elder son’s 10th birthday. She has said many times that had she not been pregnant, she would have considered suicide.”

Quoting a collague, Paul Marshall, who also acted pro bono, Gould said. “The real questions made urgent by the Court of Appeal’s 23 April 2021 judgment are are, on the one hand, who knew what, when, about the Horizon system’s propensity to fail and, on the other, who in the Post Office, in Fujitsu and in the Post Office’s owner – the government – were willing to see people imprisoned and denied justice in a ruthless scheme of deception intended to protect the Post Office brand at almost any cost; a scheme that in a curious fluke of justice has left the brand toxic and possibly valueless.”

LEGAL QUESTION OF THE WEEK

The NHS Digital Database – What are the Privacy Challenges?

By Pulina Whitaker, Partner and Co-Leader of Morgan Lewis’ Privacy & Cybersecurity Practice

‘Eye Spy, what do I see?’ Image courtesy of Heads of State for UCLA Magazine

The Government’s controversial plan to create a database of all GP records over the past 10 years for sharing with third-parties is a challenge to implement from a privacy perspective. The implementation date of the database has been delayed from 1 July until 1 September 2021 to address privacy concerns from the British Medical Association and Royal College of GPs, as well as privacy groups including Foxglove.

The key challenge is that the records will continue to contain personal data, where the identifiers are removed or the data is otherwise “pseudonymised” so it is not directly identifiable but patients can be re-identified with other information. This kind of data is strictly protected by the UK’s implementation of the General Data Protection Regulation and, therefore, NHS Digital will need to comply with key obligations.

At the outset of the collection of GP records, it must provide each patient with a clear privacy notice regarding how the data will be collected from GPs, how it will be used, with whom it will be shared, how it will be protected and give patients certain rights to control their data including request that the processing is restricted or their data is deleted. They must comply with restrictive processing conditions, such as only use the data where necessary for scientific research too.

NHS Digital will also need to allow patients to access a copy of their data and ask for details of how it is being processed after it is transferred to the database. Finally it must require all organisations to protect the data to the same standard as in the UK, including through data transfer agreements where the data is transferred outside the UK or Europe to a country not otherwise deemed to have “adequate” data protection laws.

One of the concerns relates to the commercialisation of health data, where it is shared with commercial health providers around the world and, therefore, potentially creates a loss of control of the patient data for the relevant patient. The UK’s data protection authority, the Information Commissioner, has welcomed to the delay to the plan to allow for privacy concerns to be addressed and build trust with the public, who have until 1 September 2021 to opt-out in advance. The Information Commissioner’s Office has said it will work with NHS Digital to resolve the privacy concerns.

APPOINTMENTS OF THE WEEK

Pillsbury has appointed Antony Single as a partner in its Asset Finance team in London. Previously he was a partner at Clifford Chance helping to establish the firm’s asset finance practice in the Middle East.

Anthony Single

Single has a broad range of financing and leasing experience including making use of commercial debt, warehouse facilities, capital markets, funds platforms, tax enhanced and Shari’a compliant structured financings. He also has extensive experience of airline restructurings and workouts.

“Much like our seasoned asset finance professionals around the globe, Antony really does it all in this highly-specialized sector,” said Mark Lessard, leader of the firm’s Finance practice. “The fact that he has thrived in both up and down markets was very attractive to the team. Likewise, he brings bona fide accomplishments in the Middle East, where we share many clients and interests.”

Thomson Snell & Passmore has appointed commercial lawyer Poh-Leng Devare as a new Partner in its Corporate and Commercial department. Having trained at Bryan Cave Leighton Paisner, Devare spent six years as in-house Commercial Counsel at Imperial College London before joining YouGov Plc where she was a Senior Commercial Lawyer.

Poh-Leng Devare

Devare’s new new role involves dealing with agreements relating to technology, data and data protection, intellectual property (IP), procurement, agency, distribution, franchising and other commercial contracts.

 Joanne Gallagher, Partner and Head of Corporate and Commercial at Thomson Snell & Passmore comments: “We are delighted to welcome Poh-Leng to the team. She brings with her a wealth of experience and commercial acumen combining both in-house and private practice, which positions her to genuinely understand the business and legal needs of our commercial clients.”

And finally – a pair of mergers

 Wedlake Bell LLP and Moon Beever LLP have agreed to merge with effect from 12 July this year. Martin Arnold, Managing Partner of Wedlake Bell, said,“We are delighted to be joining forces with Moon Beever. The merged firm will enable us to enhance the offering to our clients in some of our core business areas – notably insolvency and restructuring, disputes, commercial property and private client.” The merged firm will bring together 71 Partners and a total complement of 217 lawyers. (The name of the new merged firm has not been revealed).

Axiom Stone Solicitors and DWFM Beckman joined forces on 9 June 2021 to become Axiom DWFM, creating a combined team of almost 150 people, including 19 partners, located across their several offices in London and Birmingham.

The merger will provide clients with access to comprehensive legal advice across Real Estate, Dispute Resolution, Insolvency, Family, Employment, Corporate and Commercial and Private Client & Wealth. accountants and tax advisers. It boasts particular expertise through its India and China desks.

E-VENTS

Panel Discussion: Sharing Stories of being LGBT+ and Minority Ethnic Tuesday 29 June 202113:00 – 14:00 BST

The experience of being a minority within a minority group can bring with it complex challenges. Linklaters is delighted to invite you to discussion featuring panellists from Deloitte, Standard Chartered and our own With Pride Network. The event seeks to educate attendees about the intersection of LGBT+ and Ethnicity through the power of storytelling. 

The discussion will be facilitated by Phyll Opoku-Gyimah, widely known as Lady Phyll. Phyll is the executive director of Kaleidoscope Trust, the charity working to uphold the human rights of LGBT+ people across the Commonwealth. She is also the co-founder and executive director of UK Black Pride, Europe’s largest pride celebration for LGBT+ people of colour. Phyll is an experienced community builder and organiser; an Albert Kennedy Trust patron, and a writer and public speaker focusing on race, gender, sexuality and class.
 
Webinar dial-in detailsDial-in details will be provided upon registration.Please note that all attendees will be automatically muted when joining the webinar. RSVPPlease register for this webinar using the following link
RSVP

We hope that you have enjoyed – and maybe even found useful – this edition of the LEGAL DIARY.

If so, please relay on to colleagues.

Meanwhile, please continue sending news, views, comment and insights to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday June 11th 2021 Edition 61

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

SHORT THOUGHT FOR THE WEEK

Who are the ‘Unacknowledged Legislators’?

Big on the Agender – Image Courtesy of penguin Books

In the much celebrated words of poet Philip Larkin, sex was invented in Britain in 1963 and ‘Then all at once the quarrel sank/ Everyone felt the same.’

If only that were true, one might say. As the news yesterday demonstrated, issues of sexual abuse, sexting and gender identity stir up an increasing amount of contentious debate. And now the courts are required to step in and try to sort it out – at least up to a point (just as they did with the ‘Lady Chatterley’ trial which features in the Larkin poem). As Monica Kurnatowska, Employment partner at Baker McKenzie, observed regarding the decision in yesterday’s Maya Forstater EAT case. “This ruling  means that individuals are entitled not to be discriminated against because of gender critical beliefs and gives those beliefs the same legal protection as religious beliefs, environmental beliefs and ethical veganism.”

So beliefs – thought-crime, as some might see them – will be tolerated. But how those are beliefs may be manifested without offending the law is now the tricky area – and yet to be resolved in the Forstater case. “Employers will be watching closely for any guidance on how to handle employee conflict fairly and lawfully, while respecting the rights of all involved,” commented Monica Kurnatowska. Sadly the need to resort to law is a sign of growing social breakdown. If only it could be solved with a book of etiquette – or, better, a book of poetry.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Irwin Mitchell Appointed Legal Cox to British Rowing

– Building Better This Way with BDB’s new E-magazine

– The Forgotten Song of Clyde & Co

– IP Crime Reaches Top Ten

+ EXPERT COMMENTS OF THE WEEK: THE LAW DELAYED IS DIVORCE DENIED

+ LEGAL THINKING OF THE WEEK – CHANEL CROSSING Where’s the dividing line between luxury item and commodity product? considers Flavia Ștefura, Senior Associate, MPR Partners

+ LEGAL INSIGHT OF THE WEEK WHAT IS THE ‘GLOBAL MINIMUM TAX RATE’ AND WILL IT HAPPEN?

ask Ian Borman and James N. Mastracchio of Winston & Strawn

+ LEGAL REVIEW OF THE WEEK – WHEN BUSINESSES GO WRONG The Insolvency Service’s new approach could hurt all company directors of Dissolved Companies argues Steve Thomas

APPOINTMENTS OF THE WEEK

with JMW Solicitors and Harneys

E-VENTS from Harvard, the Bingham Centre and ThoughtLeaders

LEGAL DIARY OF THE WEEK

Irwin Mitchell Appointed Legal Cox to British Rowing

With the Olympics just a few weeks away (oh, yes they are! oh no they’re not!) Irwin Mitchell has been announced as the Official Legal Partner to British Rowing. And its brief is not just to support the organisation’s legal work but also to help it deliver on its commitment to becoming more diverse.

Diversifying this crew? Photo Nick Middleton

It’s a big job.  The three-year deal will see Irwin Mitchell working in partnership with British Rowing’s in-house legal team plus its 530 clubs, 200+ events and 30,000 members to support their legal needs. These include IP and data protection, commercial advisory, risk management and disputes, employment, safeguarding and sponsorship.

 As is well known, the Brits are rather good at sports which involve sitting down on the water so the last 35 years has been marked by rowing as one of GB’s most successful Olympic events. And Irwin Mitchell will be supporting British Rowing to ensure that record continues. “With a proud history of working alongside sporting governing bodies both here and abroad, we’re very excited to be working with British Rowing to help them achieve their future aims and vision of representing a modern, diverse, British society,” said Hannah Clipston, partner and specialist sports lawyer at Irwin Mitchell

For British Rowing Andy Parkinson, the CEO, said, “We’re delighted to welcome Irwin Mitchell as our official legal partner and we’re excited at the potential this partnership has to deliver tangible change – not only to our affiliated clubs and members, but also with respect to our ongoing work in making rowing an inclusive and diverse sport that welcomes and has an offer for everyone.”

Building Better This Way

Its

It’s a cover story

Congratulations to BDB Pitmans for producing a great new e-magazine. Under the title Building Better it comes across strongly with a vivid and highly contemporary take on the role of law by, as it says, ‘highlighting the issues that matter – whether it’s climate change, ethical business, ground-breaking technology or the latest market trends.’

  The current edition includes articles on anti-slavery campaigning company Tony Chocolonely (which is working towards 100% slave-free product), what we can expect from the Covid-19 inquiry plus what’s required from retailers to inspire areturn to the high street. Worthwhile having a look.

Here’sthe link  https://www.bdbpitmans.com/building-better-magazine/?utm_source=Vuture&utm_medium=Email&utm_campaign=Building%20Better%20Magazine%204%20June%202021

The (Forgotten) Song of the Clyde

The advance of women into senior positions in law firms was demonstrated further this week by the election of the Canadian Carolena Gordon as the new Senior Partner at Clyde & Co.

Just important as her gender, however, is the fact that she is the first partner from outside the UK to hold the position. This has a particular resonance right now with the G7 meeting down in Cornwall and much talk about ‘Global Britain’. As historically a shipping firm, Clyde’s name was the embodiment of English law internationally. It was, you might say, UK-flagged. Now with its 50 offices worldwide in every continent – and including 14 offices in the Americas – one has to ask whether the firm has a national identity any longer. Significantly the firm’s website has no hint of its history. And despite what Boris Johnson (or indeed others) might feel, maybe this doesn’t matter any more.

IP Crime Reaches Top Ten

Here’s one of those stories which makes you question what’s real, what’s illusion and what’s fake It also makes you think what really matters. (For more see our comment on the Chanel case further down).

The results of a study released this week – European Citizens and Intellectual Property  – by the European Union Intellectual Property Office reveals that European consumers still find it hard to distinguish  between genuine and fake goods. But is that really a surprise? If it’s a very good, convincing fake how would the average consumer recognise the difference? If, that is, there is a difference. Especially when it comes to fashion items where does the value lie – in the design, in the craftsmanship or in the brand?

Of course, when we are talking about medicines then it is a different story. Thanks to Covid patients have become much more concerned over fakes recently due to a  proliferation of counterfeit medicines (such as antibiotics and painkillers) as well as personal protective equipment. Indeed it is calculated that 4 billion euros worth of counterfeit pharmaceuticals are traded worldwide annually while as much as 6.8% of EU imports – worth EUR 121 billion – are counterfeits.

So this area of IP law is down and dirty. “IP crime is a profitable activity involving organised crime groups and increased evidence shows links between counterfeiting and piracy as well as other crimes such as drug and human trafficking, cybercrime or fraud,” warns Christian ArchambeauExecutive Director of the EUIPO. “This is a long-standing issue, often interlinked with other types of illegal activities, which requires urgent robust, coordinated action.”

The result is that IP crime has recently been installed as one of the top ten EU priorities in the fight against organised crime. Yes, it’s serious. ‘Definately’.

EXPERTS’ COMMENT OF THE WEEK: THE LAW DELAYED IS DIVORCE DENIED

IT delays at HMCTS have frustrated the implementation of the new divorce legislation. This is what the experts said.

COLLYER BRISTOW

 “Those divorce lawyers of a sceptical disposition and long memories will not be particularly shocked to learn that the MoJ is “delaying” the introduction of divorce reforms. It will be recalled that the previous attempt to bring this into force on the statute books fell at the last hurdle back in 1996.

 This has always been something of a political hot potato and, as one may imagine, certain sections of society (including, quite possibly, a very recently married occupant of Downing Street) are unconvinced about the wisdom of “making divorce easier”. This has, however, just made life much harder for those who were told by their lawyers that they only had a month or so to wait to avoid having to cite their spouse’s behaviour as a reason for the breakdown of their marriage.”

 Toby Yerburgh, Partner

GOODMAN DERRICK LLP

“The delay in no  fault divorce is hugely disappointing  for those in legal circles who have been campaigning for the change but most importantly for  the many couples who have been waiting until Autumn this year to “kick start” their divorce proceedings because they wanted to have a “no fault divorce.   This delay will inevitably present emotional challenges for these couples but it may also have financial consequences if these couples decide to delay further until the legislation comes into force next year. For example, the value of the couples’ assets may fluctuate in the next 10-12 months and there is no guarantee that the levels of income of the couple will be the same next year. Any financial settlement will be based upon the couples assets and income at the time the financial agreement is made.  

 On the other hand however, by waiting for the “no fault divorce” to come in force next April, it may be easier for couples to reach a financial agreement as they are more likely to be amicable and less willing to incur legal fees by engaging in contested or protracted proceedings.”

Charlotte Coyle, Senior Associate

PAYNE HICKS BEACH

“Family lawyers have long bemoaned the current divorce laws and the hostility that can arise as a result of the “blame” culture encouraged and required by the current legal system.  Parties who are in agreement that the marriage has broken down are surprised and disappointed to find that they are then pitted against each other from the outset.

It is disheartening that this vital but long overdue legislation will become even more so following today’s announcement. HMCTS has been working on the online platform for some time, which is already up and running for the current divorce process. It is frustrating that the modifications to the system have not been expedited for this reform.

I am aware of a number of couples who have agreed to wait until the Autumn to formalise their separation, allowing them to divorce consensually, whose plans have now been thwarted.  The new Act seeks to encourage a more conciliatory approach to relationship breakdown, reducing conflict and its damaging effect on family relationships. The legislation sorely needs to be prioritised.  Parties should have the right to separate amicably and with dignity and the long awaited day cannot come too soon.”

Emily Foy, Senior Associate  

OSBORNES

 “This delay is a blow to couples who are seeking to divorce in the most amicable way, with the least impact on their children. Couples who perhaps have been ‘waiting it out’ may feel that they have no option now but to begin the process, citing unreasonable behaviour or adultery. This immediately introduces a contentious element into their divorce, which is sad for them and their families.”

Lisa Pepper, Partner

“While it is hugely disappointing that there has been a delay in bringing the Act into law, divorcing couples seeking a no fault divorce will now at least have a date to plan towards.

 “I understand that the delay is due to the need for the court IT system to be updated to reflect the law change. I am sure that all family lawyers and those seeking a divorce will appreciate the time it takes to resolve such issues, and that the courts must be given the necessary time to ensure a smooth process when the law is brought in.”

  Joanne Wescott, Partner

SEDDONS

 “This is hugely disappointing. Divorcing couples had been preparing themselves for no fault divorce to begin from Autumn 2021. It was never understood why this could not have been have implemented last year when the Divorce, Dissolution and Separation Bill received Royal Assent. Bearing in mind that the last set of ONS divorce statistics revealed that unreasonable behaviour remains the most common reason for divorce, cited by 49% of wives and 35% of husbands, the blame game needs to end sooner rather than later.”

 Neil Russell, Partner

LEGAL THINKING OF THE WEEK

CHANEL CROSSING: Where’s the dividing line between luxury item and commodity product? considers Flavia Ștefura, Senior Associate, MPR Partners

Marilyn Monroe was once famously asked ‘what do you wear to bed?’  She replied ‘Why, Chanel Number 5 of course’.  That is the kind of celebrity endorsement Chanel appreciates.  What it finds less fragrant is any infringement of its trademark which tarnishes its luxury brand.  That is what it accuses online store Cresplocker of doing in an English law suit. It argues the tarnishing comes from selling ‘Chanel’-branded goods alongside goods from other less luxurious brands; offering its trademarked goods online – which its policies do not allow; using the ‘Chanel’ trademark to describe the goods it sells in product captions in both its online store and in a store on e-bay; and not offering a luxury experience to customers.  It claims a test item it purchased arrived crumpled and not in the original packaging.

Crepslocker argues it is protected by the ‘trademark exhaustion rule’ under which, following a first sale of a trademark product by Chanel, or subsequent sales with their consent, the fashion house cannot then control further sales. Crepslocker also says the division Chanel makes between online and offline sales is artificial, and that Chanel has collaborated with sports clothing manufacturers, so cannot claim mixing its products with sportswear tarnishes its brand.

What is a high-end fashionista, not to say IP lawyer, to make of it all?

Post Brexit the UK Supreme Court is no longer bound by decisions of the Court of Justice of the European Union, (CJEU).  However, courts in the UK are free to have regard to CJEU decisions in their own rulings, and CJEU precedents tend to protect trademark owners. They support that controlling the sale channels and respect for the integrity of the original packaging are acceptable exceptions to the trademark exhaustion rule. It seems likely the UK courts will follow these established principles.

However, Crepslocker also kept used products in consignment from its customers, and here the courts would probably consider balancing Chanel’s rights, Creplocker’s, and the owner’s rights in the used products to have a platform to sell their goods on the aftermarket.

A win for Chanel may have a chilling effect on online resellers of other luxury brands. Maintaining the prestige and value of such brands by setting sales standards and determining sales outlets may protect the brands, its consumers and the large amounts they pay for the goods.  However, those consumers also need a resale outlet, and there is a demand for the products they own. Careful consideration will have to be given to whether the second-hand luxury goods market is different from the new luxury goods market, and whether the exception to the trademark exhaustion principle still applies. 

LEGAL INSIGHT OF THE WEEK

What is the ‘global minimum tax rate’ and will it happen? ask Ian Borman and James N. Mastracchio of Winston & Strawn

Last weekend the members of the G-7 (Canada, France, Germany, Italy, Japan, the UK and the US) reached an agreement that a global minimum tax should be implemented and the respective Treasuries will support a broader global effort.  While the reported rate would be 15%, and all individual country’s digital tax would cease, the details of how the minimum tax would be imposed, on what corporations, and on what terms, is unknown. 

Some sort of global minimum corporate tax rate has been talked about for many years – but the idea is currently having a renaissance under OECD proposals and the Biden administration. Some feel that the political capital may well be in place to bring new rules into force, even if these are imposed unilaterally. So, what is it and will it happen?

The purpose of a global minimum tax rate is to disincentivise the shifting of profits to lower tax jurisdictions. The idea was to force multinationals to pay tax in the jurisdictions where their goods and services are sold, but this has proved impractical, so the actual proposals are a little different.

The proposals are effectively an amendment of the US’s Global Intangible Low-Taxed Income (GILTI) tax rules, which mirrors the OECD’s BEPS Pillar II proposals which is intended to be a comprehensive agreement on jurisdiction-by-jurisdiction global minimum taxation.

A key part of the new proposals would require multinational businesses to calculate GILTI on a jurisdiction-by-jurisdiction basis, thus preventing the blending of low rate income with income from controlled foreign corporations operating in high tax-rate countries.

The proposals are certainly ambitious and many countries and organisations around the world have applauded efforts to limit countries’ ability to opportunistically set low corporate tax rates. However, what might seem simple is in fact enormously complicated.

Countries such as Ireland, which currently has a 12.5% corporate tax rate, see low levels of taxation as a key method of stimulating growth. As such, it seems unlikely that they will agree to the change and, with each European Union member state able to veto, it’s difficult to see a path to a minimum tax rate across the EU bloc.

It is difficult to know how effective a global minimum tax rate will be if adopted and implemented, but it seems likely that low tax jurisdictions will use any opportunity to replace low tax rates with other incentives by something else, potentially making labyrinthine tax systems even more complex. But with the G7 nations taking the first major step towards a global minimum tax rate, discussions are certain to continue across jurisdictions.

Ian Borman advises, at a strategic level, on business critical issues, including long term financial planning, regulatory issues, financial restructuring and disputes. James N. Mastracchio is a partner in the firm’s office in Washington D.C

LEGAL REVIEW OF THE WEEK WHEN BUSINESSES GO WRONG

The Insolvency Service’s new approach could hurt all company directors of Dissolved Companies argues Steve Thomas of Excello Law

Image courtesy of FTC

When things go badly wrong in a business the dissolution process is a quick, simple and cost-effective way to have the company struck off the register. However, dissolving a company can mean that questionable conduct by directors is swept under the carpet. Some unscrupulous directors have unfortunately used dissolution as a way to avoid accountability or repaying creditors. So what’s to be done?

In order to protect against such abuse, the government has recently given the Insolvency Service new enforcement powers. Indeed, it is widely predicted that many UK companies which were kept solvent by the government’s Covid supports will soon be wound up. The government could well be one of the creditors left out of pocket. That is especially likely given widespread uptake of the government’s Bounce Back Loan (BBL) and Coronavirus Business Interruption Loan Scheme (CBILS) loans. If a Company is dissolved and has unpaid BBLs and CBILs then those directors may fall under the radar and will not be in the cross hairs of a Liquidator.

Ordinarily, the only way for the creditors of a dissolved company to recover their funds is to restore the company and then to bring an action against its directors. This process is costly and takes time to complete. Therefore, the government has now given the Insolvency Service the power to investigate the conduct of directors of dissolved companies with outstanding government loans. 

While the government is right to protect its interests, there is a danger that these new enforcement powers could be used too aggressively in a scattergun approach against all companies which were dissolved with government loans outstanding. However, many such companies will have been acting properly in taking the loans in a genuine effort to keep their business afloat.

The directors of such companies should take action to limit the risks which these new powers present. Directors should keep clear documentary evidence to prove what the loan was for, what the motive behind the application was, and what was the money spent on. They should keep detailed minutes of board meetings where a company decides to dissolve, and clear evidence showing the rationale for their decision making processes. Such documents could be crucial in defeating any claims made by the Insolvency Service for disqualification to act as a director, or against other sanctions which the service may seek to impose. It is crucial to be able to show that there was no breach of duty by the directors and that, accordingly, no sanctions or bans should be administered.

The government’s efforts to protect its loans are understandable and welcomed but perhaps more thought should be given as to the process of a Company entering into Dissolution, which is administrative and open to abuse i.e. stop the Company being dissolved in the first place. However, the Insolvency Service should exercise discretion when deciding which directors to target with its new powers and this power seems to be akin to locking the door after the horse has bolted.

Steve Thomas is a specialist Insolvency dispute resolution and Insolvency litigation lawyer at Excello Law.

www.excellolaw.co.uk

APPOINTMENTS OF THE WEEK

Suzanne Staunton has been appointed as a partner in the Employment team of JMW Solicitors LLP in their London Office. Prior to working in private practice, Suzanne spent many years at the independent bar, giving her a unique perspective for clients throughout the litigation process. Staunton has worked closely with legal counsel, employment counsel and HR staff members as well as high net worth individuals and executives on a range of employment law issues.

Anita Rai, head of the Employment, London at JMW Solicitors said, “In London, we are continuing to attract the best legal talent in London. Suzanne is an excellent addition to our busy employment team. As an experienced litigator, Suzanne enhances our complex discrimination and whistleblowing capabilities.”


Having been admitted as an attorney of the Grand Court of the Cayman Islands, Moesha Ramsay-Howell has been appointed as an associate to Harneys’ Litigation & Insolvency practice.

 Moesha was born and raised in the Cayman Islands and started out her legal career after becoming the recipient of a Cayman Islands Government scholarship. This allowed her to complete her tertiary education, which included her bachelor’s degree and a postgraduate diploma in Legal Professional Practice.

Moesha is a member of the International Women’s Insolvency and Restructuring Committee (Cayman) and is a board member of the Cayman Islands Legal Practitioners Association. When she is not working or studying, Moesha volunteers at Legal Befrienders, a family resource centre where she provides free legal advice. She is also heavily involved in the Prison Literacy Programme at Her Majesty’s Prison Service Cayman Islands. 

E- VENTS

HARVARD LAW SCHOOL CENTER ON THE LEGAL PROFESSION

The New Legal Function: 360 Degree Insights for Law Leaders

Tuesday, June 29

10:00AM – 2:30PM ET

Register here!
 
Join the Harvard Law School Center on the Legal Profession for a special webinar presented in collaboration with EY Law that will bring together global leaders from law, business, and the academy to discuss the challenges and opportunities for in-house legal departments and related functions over the next 6-24 months. The discussion will be informed by a major study based on 2,000 interviews with general counsel, business leaders, and contracting professionals across 22 countries conducted by the Center and EY in early 2021.

Featuring presentations from David B. Wilkins (Lester Kissel Professor of Law, Harvard Law School) and Cornelius Grossmann (EY Global Law Leader) as well as commentary from Kate Barton (EY Global Vice Chair – Tax), Doug Lankler (General Counsel, Pfizer), Sara Moss (Vice Chair, Estée Lauder), Mary O’Carroll (Chief Community Officer, Ironclad, Inc.), Heidi Stenberg (EY Americas Legal Function Consulting Leader), and more!

Register now as space is limited!

ThoughtLeaders4PrivateClient Webinar ‘Succession Planning for Modern Families’ in your legal diary?

Sarah Williams and Jessica Henson of Payne Hicks Beach are respectively chairing and speaking at the ThoughtLeaders4 Private Client event on 14 June 2021.

With modern science advancing at great speed, they will discuss what this means for succession planning. Complexities over legal relationships and inheritance are pure examples of some of the challenges for private client  lawyers thrown up by surrogacy and modern family dynamics.

Topics to be discussed include:

  • The law surrounding surrogacy – introduction to, and update on, the position in the UK and key jurisdictions
  • The complex web of parental rights flowing from surrogacy
  • Why private client practitioners and trustees need to be up to date on the issues
  • The role of the Human Rights Act
  • Fertility preservation
  • Modern family dynamics and trusts
  • Settlors’ wishes and public policy

Webinar booking link: https://bit.ly/3uCHz6Y

Data for Investor Action on Modern Slavery Tuesday 15 June 2021 | 16:00pm – 17.30pm (British Summer Time)

BINGHAM CENTRE FOR THE RULE OF LAW

 
What data do investors need to take effective action on modern slavery?

There is increasing recognition of the important role of investors when it comes to addressing modern slavery risks in business supply chains, and the private sector more generally.  Investors’ information needs in relation to modern slavery risks are of growing importance in times of increasing demand for responsible investing and a rapidly evolving human rights due diligence landscape.

Yet, actionable information on investee companies’ exposure to modern slavery risks is scarce and often presented in ways that are difficult to integrate into investment business processes. Resources and tools for investors are weakly developed compared, for example, to those tailored to the needs of supply chain managers.

Commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre, the Bingham Centre for the Rule of Law and The Alan Turing Institute have undertaken research that seeks to address this situation and enable progress.

The project report, which will be launched at this webinar, maps out the existing modern slavery data landscape from the perspective of investors’ information needs, and identifies possible areas for improvement.  In doing so, it considers relevant types of data, analytical methods and strategies for extracting insights from data, and ways of presenting such insights in practical ways to investors.

The resulting findings provide a much-needed evidence base to unlock the potential of data for effective investor action in relation to modern slavery in the most significant areas.
This event is convened by Lise Smit, Senior Research Fellow in Business and Human Rights and Director, Human Rights Due Diligence Forum; Dr Irene Pietropaoli, Research Leader in Business and Human Rights, BIICL; and Florian Ostmann, Policy Theme Lead and Policy Fellow, Public Policy Programme, The Alan Turing Institute.  Organised in collaboration with the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC), the Bingham Centre for the Rule of Law, and The Alan Turing Institute.
Chair: 
Murray Hunt, Director, Modern Slavery and Human Rights Policy and Evidence Centre & the Bingham Centre for the Rule of Law

Introductory Remarks: 
Dame Sara Thornton, UK Independent Anti-Slavery Commissioner

Presentation of Research Findings: 
Florian Ostmann, Policy Theme Lead, Public Policy Programme, The Alan Turing Institute.

Speakers: 
Anita Dorrett, Director, Investor Alliance for Human Rights
Elena Espinoza, Acting Head of Social Issues, UN Principles for Responsible Investment
Dr Tauni Lanier, Chief Sustainability Officer, World Wide Generation
 

Pricing and Registration

This webinar is free to attend, however advance pre- registration is required
 
BOOK NOW

We hope that you’ve found this editor of the LEGAL DIARY interesting – and maybe even useful.

If so please pass on to colleagues

And please keep sending insights, news and comment to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday June 4th 2021 Edition 60

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

SHORT THOUGHT FOR THE WEEK

TIMES, THEY ARE A CHANGIN’? (as someone once sang)

Finding the way through may need AI

The past few days – with a Bank Holiday/Half term holiday – have been predictably quiet. But then large parts of the legal community have been spending time either in Cornwall or in cancelling their forthcoming holidays to Portugal. Nonetheless the two big issues creating noise around the legal industry have remained the same – the move to hybrid working in new-style offices and the fierce ‘imperative of now’ to increase diversity. Both of these, almost certainly, will leave their mark on the legal industry far into the future.

But something else also happened this week – the launch by Thomson Reuters of its new contract review and analysis tool  HighQ Contract Analysis. This uses machine learning, so it is claimed, to answer the specific questions legal professionals want to address in an easy-to-read report. According to the publicity ‘HighQ Contract Analysis provides an integrated experience [enabling users to] leverage HighQ collaboration, workflow and visualization tools to conduct further analysis and generate reports on top of the extracted data.’

Sounds impressive and, at a time when associates are said to be labouring under unbearably stressful workloads, maybe it is AI which is going to be the real game-changer. Works 24/7, ‘from anywhere’ and no D&I issues – yet.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

Risky Business – the Rise of the ‘Risk & Compliance Analyst’

Moving Time – Space is contracting and time expanding

‘Team Days’ at Eversheds

The Money Talks – When it comes to Diversity at Gowling WLG

An All-In agenda at A&O

+ LEGAL ANALYSIS OF THE WEEK – ON DATA TRANSFER from HOGAN LOVELLS

+ CONTRIBUTED ARTICLE OF THE WEEK

WHERE NEXT FOR LITIGATION FUNDING? asks IAN MADEJ

+ APPOINTMENTS OF THE WEEK from Signature Litigation and Browne Hacobson

+ E-VENTS

LEGAL DIARY OF THE WEEK

Risky Business – the Rise of the ‘Risk & Compliance Analyst’

Image – Courtesy of Noun Project

The increasing role of paralegals has been a marked trend over recent years – often including law graduates on their first step towards a traineeship. But Eversheds Sutherland has come up with a twist on that theme. The firm has announced that it will be offering from its Leeds office what it believes to be the first formal scheme whereby graduates can rotate around different parts of its Risk and Compliance team (including financial crime, regulatory compliance and data, contracts and commercial and business acceptance) over a two year period, so that they develop into ‘truly rounded compliance professionals’,

As the firm comments, it “Doesn’t want to restrict itself to qualified lawyers and miss out on a huge group of diverse graduates with the right skills and attributes, and a desire to build a career in this area.” So recruitment will be of people with a minimum 2.1 degree and who on completion of the programme will be offered a permanent position as a ‘Risk & Compliance Analyst’ and support in obtaining a relevant professional qualification.

As the firm emphasises “Please note that candidates will not qualify as a solicitor” – which is as it should be. The complexity of the legal infrastructure within which business works today means that clients need more then just legal advice. Progressive law firms appreciate that.

Moving Time – Space is contracting and time expanding

Already law firms are responding to the new ways of working – WFH, WFA etc. – by re-setting their plans for premises. One of the latest is DWF which has just adopted a ‘new global office strategy’ inspired by the expressed wish of its people to spend no more than three days a week in the office (and often less than that).

The impact of this can be seen immediately in Glasgow where the local team will soon be moving to the eighth floor of The Sentinel, a fully refurbished office block.

“It is a genuinely exciting opportunity to move into a newer, fitter-for purpose environment embracing some of the newer habits that have been formed over the last twelve months,” said Paul Pignatelli, Glasgow office managing partner. “The pandemic has unsurprisingly led to more people working from home than ever before. During this time the DWF Executive and Glasgow partners discussed how our office requirements and working habits have changed and the ways in which this affects our clients’ and our own future working needs. With our colleagues also indicating that they wanted to split their working week by spending between 2-3 days a week from an office, we decided to move to a hybrid-working model and relocate our office to The Sentinel. As a result we have been able to reduce our square foot space by half and begin designing our new office environment that caters for a new way of working.” We’ll be looking out to see how it works out.

Team Days’ at Eversheds Sutherland

Meanwhile – and there is a pattern here – Eversheds Sutherland has also announced that it will be operating from mid-September with a hybrid working model for its ten UK offices. Again the majority of its people will be coming into the office on just two to three days each week (including at least one “team day”). The remainder of the week will be spent working remotely.“We have devoted a huge amount of time and effort to this, seeking feedback from across the firm, at all levels and from all roles,” said Keith Froud, Managing Partner. “We have also spoken to clients about their anticipated needs. We believe that two to three days each week is the right balance, and this will include at least one “team day” where most if not all of a team will attend to promote face to face connectivity.”

The new regime will be phased in over the next few months and become the norm in September.

The Money Talks – When it comes to Diversity at Gowling WLG

Ever upwards to career success at the University of Birmingham?

Of course, the other big theme of the year has been the drive to open out the legal industry to a more diverse group of entrants. And that means not only bringing people in but ensuring that there are routes for progression.

Latest to make announcements in this area is the Gowling WLG (UK) Charitable Trust and the University of Birmingham which have partnered to launch a new ‘Black Talent in Law’ Bursary scheme which aims to support better access to the legal profession for black students at Birmingham Law School (BLS). Students on the scheme will be provided with work placement opportunities at Gowling WLG, on-going mentoring support from lawyers at the firm, and also paid financial contributions in their second and final year of their studies at BLS. Three students will be the first to enrol on the scheme in September.

“We are excited to launch this scheme in partnership with Birmingham Law School through the Gowling WLG (UK) Charitable Trust.,” said Andy Stylianou, Chair of Gowling WLG (UK) LLP and the firm’s lead on diversity and inclusion. “The scheme will offer the students a fantastic opportunity to gain invaluable experience working within a busy international law firm while completing their studies and to be financially supported along the way. Black lawyers are under-represented in corporate law firms and we are committed to doing our part to address this and to promote the progression of black students to careers at our firm and the legal profession more widely.”

Again, let’s see what it looks like in five years time. And in ten years time let’s hope it’s no longer needed.

An All-In agenda?

Meanwhile A&O has got D&I going across a wide front. It has just launched ‘All In’, its ‘global commitment to becoming a more diverse and inclusive organisation’, which is the next step in the firm’s push to create ‘an inclusive culture that celebrates and embraces difference’. The firm has also published an article: Reflecting on a year of work on Race & Ethnicity, which takes a ‘hard look’ at the progress it is making to create racial equity in the firm and assess the many challenges that lie ahead.

All of this builds on its 2020 initiative the  Black Aspiring Solicitors Mentoring Scheme which was set up in partnership with the organisation ‘Aspiring Solicitors’ to provide a mentorship programme and bespoke workshops to a small group of black or black-mixed heritage students.

A&O also runs a range of programmes in partnership with Rare recruitment, and hosts an independent ‘inclusivity series’. Students wishing to register their interest in the Black Heritage Insight Programme can do so here.

LEGAL ANALYSIS OF THE WEEK

DATA TRANSFER

Today the European Commission is due to adopt revamped data transfer tools with more legal and privacy safeguards to allow companies to transfer data securely around the world

Here’s what lawyers at HOGAN LOVELLS had to say on the legal implications of this.

“[The] announcement on ‘standard contractual clauses’ (SCCs) will be a game-changer with important implications for data transfers between EU and non-EU countries,” said Eduardo Ustaran, Co-Head of the firm’s global Privacy and Cybersecurity practice. “All existing contracts relating to data transfers will need to be revised. The key difference between the old and new SCCs will be the new modular approach, so organisations will need to identify the correct module in light of their role. The new clauses will also be packed with provisions triggered by the so-called ‘Schrems II’ ruling from July 2020, which requires businesses to assess the potential for government access to data and consider carefully whether there are sufficient data protection measures in place.”

Meanwhile,Ivan Shiu, a partner specialising in commercial and privacy litigation, added, “Companies should also see the new rules as an opportunity to review their suppliers’ and vendors’ contracts and cybersecurity credentials, as failing to comply with the new standards could lead to heavy penalties. If a company gets it wrong, quite apart from the business and reputational risks, the company runs the risk of facing claims in what is a growing wave of data-related class actions pending before the UK courts.”

CONTRIBUTED ARTICLE OF THE WEEK

WHERE NEXT FOR LITIGATION FUNDING?

asks IAN MADEJ, Chief Executive Officer of Asertis

Having grown exponentially, litigation funding is now part of everyday life. When the convictions of 39 sub-postmasters were recently quashed, litigation funding enabled the civil litigation which led to them being compensated. The FT noted: ‘When it comes to challenging appalling behaviour by a deep-pocketed establishment entity, some private firepower is essential.’

Funders now regularly work with law firms – as seen in multiple actions against the German auto giants in the dieselgate scandal. Equally valued by claimants and law firms, it is also increasingly attractive for firms who want to generate revenue early on, rather than wait for a lengthy dispute to conclude.


Where next?

New entrants will inevitably emerge, attracted by potential gains. But informed observers fear that some are overly attracted by uncorrelated and outstripped returns.

Trying to navigate an increasingly difficult investment space, they may rely solely on external counsel for investment advice, and make decisions based exclusively on information provided from acting advisers. But external advice is only a part of the jigsaw, and the battle hardened funders who seek to mitigate risk based on their own and others’ experience will inevitably come up trumps.

Should this occur, these new entrants may find market economics working against them. Over-leveraged and inefficient, businesses without a clear investment strategy may not survive.


Consolidation and specialisation

And the existing players? Banking and law show what might happen next. Bank mergers have proliferated since the 1970s. Among Europe’s lenders, consolidation is finally underway. It was a similar story in the legal business: domestic law firm mergers were commonplace in the 1990s, followed by a wave of transatlantic tie ups a decade later.

The same may happen with litigation funders. An indicator of what to expect came with the 2019 merger between Omni Bridgeway and IMF Bentham, described as ‘a strategic combination.’ Economies of scale, increased access to funds and an enhanced geographic footprint were obvious advantages.

Beyond consolidation at the top, niche funders will appear, focusing on specific sectors such as construction and shipping: a consequence of increased sophistication.

Some market players have already been pioneers: applying litigation funding across several jurisdictions and practice areas and trying to industrialise it. Although the market was not yet ready, such initiatives are prescient.

As the size and scale of key market participants evolves, some new entrants will become dominant players, providing lawyers and lay clients with greater choice and wider access. Now that litigation funding is (almost) completely mainstream, it will also enable funding to become more normalised.

Ian Madej is the founder and Chief Executive Officer of Asertis the UK’s fastest growing Litigation Funder. He was a member of the team that listed Arrow Global PLC on the main market of the London Stock Exchange in 2013, having grown the business since its MBO in 2005. Having secured funding from Arrow Credit Opportunities SCSp, a €1.7bn European Fund, Ian founded Asertis in January 2020. 

APPOINTMENTS OF THE WEEK

Signature Litigation has promoted to partnership Becca Hogan (below) who had joined the firm in 2015 from Clyde & Co, where she was seconded to both Goldman Sachs and the FCA. She is currently advising a number of defendants to a $2 billion commercial litigation claim in the High Court which is listed for a 17 week trial next October. She is also investigating a number of possible group action claims.

Commenting on her promotion, Hogan said, “Becoming a Partner in such an inspiring firm is a very proud moment for me. I am very much looking forward to participating in Signature’s continued growth and success and in particular to grow Signature’s capabilities within group claims.” Partner Graham Huntley added, “It is very rewarding to be able to welcome as [a partner] talented lawyers who have developed within the firm. We are fortunate to be able to pursue our commitment to organic growth.”

Browne Jacobson has appointed as a partner Khalid Ghazi(below) in the IT and Complex Transactions team in its London offices. Ghazi joins from the Commercial Law Group (CLGp) of the Government Legal Department (GLD), the in-house commercial legal advisers to Government, where he was a Senior Lawyer. He had specialised in major projects for government departments, with a particular focus on technology transactions involving complex implementations and transformations.

Prior to joining the GLD, Ghazi trained and worked at international law firms Pillsbury Winthrop Shaw Pittman and McCarthy Tetrault. “Having worked with many law firms in my government career,” said Ghazi, “I have long been impressed by Browne Jacobson’s performance on the most difficult, demanding and complex transactions where they have consistently provided a premium service and proved themselves to be top tier for this kind of work.”

E-VENTS

THE BINGHAM CENTRE FOR THE RULE OF LAW in conjunction with the NEW YORK BAR

The Rule of Law and Authoritarian Ascendance: the Nature and Scale of the Threat, and the Legal, Policy and Societal Responses to It Online Tuesday 8 June 2021 | 13.00 – 16.00pm (Eastern Daylight Time) 18:00 – 21.00pm  (British Summer Time)
The rise of authoritarian or authoritarian-leaning governments and political parties is a trend affecting nations across the globe. in the United States, we have witnessed an undermining of democratic norms and institutions that previously constrained the reach of the Executive Branch. The steady erosion of these norms, coupled with an aversion to the rule of law, culminated in the January 6 assault on the United States Capitol. However, the U.S. is not alone in this struggle, with populist authoritarian movements gaining support across Europe, Latin America, Africa, and Asia. These movements have their roots in ideologies spanning the political spectrum, from right-wing extremism in the United States and Europe to leftist movements in Latin America. They are commonly fuelled by disinformation, propaganda, and extremist hate speech spread on social media, and they manifest themselves in similar ways, including contempt for minorities and immigrants, digital repression, glorification of violent ideologies, and the undermining of independent judiciaries. These disparate political movements share many characteristics, most notably that they are antithetical to properly functioning democracies, they weaken human rights protections, and they are hostile to the rule of law.

What do we mean by the “rule of law”? How should the United States respond to these movements, both domestically and internationally? What tools already exist, legally or in terms of policies and programs, that can help to counter these anti-democratic and often violent movements? How big a threat does authoritarianism pose to western democracy in the long term? Domestically, is the current Congressional proposal for a Commission on Truth, Racial Healing, and Transformation – in response to the January 6th insurrection – sufficient? Or are other law enforcement measures required? What is the role of the legal profession in defending and advancing democracy at a time of competing philosophies of governance?
Speakers:
Ken Roth, Executive Director, Human Rights Watch
Philippe Sands, Matrix Chambers, University College London
Ilona Szabo, Igarape Institute

Moderator:
Ulysses Smith, Bingham Centre for The Rule of Law

Sponsoring Committees:
Task Force on the Rule of Law, Chair, Stephen L. Kass
United Nations, Chair, Clayton T. Cheney
Council on International Affairs, Chair, Michael D. Cooper

Pricing and Registration

This event is free for members of the New York Bar and Non-Lawyers, and $15 for non-members.
 
BOOK NOW

MAJOR, LINDSAY and AFRICA

Major, Lindsey and Africa are running a webinar on Tuesday 8thJune from 16:00 – 17:00 on

Legal Digital Transformation: Meeting the Talent Challenge

to explore whether the legal talent pipeline can keep pace with digital transformation post-Covid. 

 Chaired by Isabel Parker, Executive Director for Digital Legal Exchange, participants will hear from global leaders in different portions of the legal ecosystem, including: 

  • Macro socio-economic trends impacting the legal industry: Mark Cohen, Executive Chairman of the Digital Legal Exchange and regular Forbes commentator
  • Strategic talent development: Duc Trang, Managing Director, Transform Advisory Services, Major, Lindsey & Africa 
  • A recruiter’s perspective: Deborah Ben-Canaan, Partner and the Senior Practice Leader for In-House Counsel Recruiting, Major, Lindsey & Africa
  • The GC perspective:Bill Deckelman, Executive Vice President and General Counsel of DXC Technology   

To attend RSVP via this link.

We hope that you have found this edition of the Legal Diary interesting. If so, please circulate to colleagues.

And please continue to send news, insights and comment to

fennell.edward@yahoo.com

Enjoy the week-end.

Edward Fennell’s LEGAL DIARY

Friday May 28 2021 Edition 59

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

SHORT THOUGHT FOR THE WEEK – POSITIVE CHANGE?

So was the hope justified? Image from Historic England

How the world will look by the end of next month is less clear than we might have hoped. The locks could still be on if the Indian variant gets out of control. But in the legal industry the future is starting to come into focus.

First, despite initial fears, many large law firms have weathered the storm well enough. Not atypically, Clyde & Co’s Chief Executive Officer Matthew Kelsall was able to observe this week that, “The response of our people to the pandemic and all of the personal and professional pressures that came with it was extraordinary. Thanks to everyone’s efforts we have continued to perform strongly.”

Second, new ways of working are being adopted extensively and confidently for the future. As Andrew Levander, Chair of Dechert’s Policy Committee, remarked a couple of days ago when announcing the implementation of a ‘flexible hybrid model’, “We believe we can balance in-person and virtual working in a way that engages and empowers our community to better support our clients and meet the professional and personal needs of our people.”

Third, and maybe most important, the sophisticated use of data has been brought centre-stage. As the recent  InterAction Marketing & Business Development Survey  from LexisNexis revealed, the law firms whoch saw high growth in 2020 were four times more likely to use tracking metrics for their marketing and business development efforts.

Ane when you then add in all the diversity initiatives which were launched – including, for example, A&O’s Black Aspiring Solicitors Mentoring Scheme – we might look back and reflect that from a purely commercial dimension this past year has been a period of positive change. It might taste bitter-sweet but seize the time.

The LegalDarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Long Walk to Justice

– Snapshots from Dickens’ Legal Life

Data quality critical to law firms’ marketing success

– Drive at Your own Risk

– Hope for Crime

+ CONTRIBUTED ARTICLES OF THE WEEK

SUBSIDISING THE WEALTHY: ARE THE COURT COSTS OF CIVIL FRAUD TOO LOW IN MEGA CASES?

asks Dan Dodman

+ APPOINTMENTS OF THE WEEK with Kennedys and Farrer & Co.

+ E-VENTS

Brick Court Centenary series continues

LEGAL DIARY OF THE WEEK

Long Walk to Justice

Here we go again

Get out your boots and stretch out those muscles because this year’s season of LEGAL WALKS is about to commence. The Access to Justice Foundation (in partnership with the regional Legal Support Trusts and committees) is gearing up again for a series of walks between 21 June and 21 October to raise thousands of pounds for frontline free legal advice services. The first batch in June will take place in Preston, Derby, Doncaster, Northampton, Sheffield, Brighton, Eastbourne, Tunbridge Wells, Hastings, York and Guildford. Most other towns and cities will then follow in the subsequent months until we trudge to a stop in the Autumn. Imaginatively the Leeds walk will be virtual – this could catch on.

Last year, of course, the majority of walks had to be cancelled due to the Coronavirus pandemic. So there is a lot of ground (and money) to be made up. “There is still time to sign up for any of the Legal Walks taking place this year,” said Laura Cassidy, Fundraising and Development Manager at the Access to Justice Foundation. “Not only are they great fun, but they are a brilliant way to raise awareness and much needed funds for the free legal advice sector at this challenging time. We’re encouraging everyone who is passionate about access to justice to make a difference and walk side by side with us again this year.”

For information, or to register for the Legal Walks taking place in the North East, North West, Yorkshire, the East of England, the Midlands, the South West, Wales or Scotland, visit atjf.org.uk/legal-walks, or email lauracassidy@atjf.org.uk

Snapshots from Dickens’ Legal Life

Anyone familiar with Dickens’ Bleak House will know that the great Victorian novelist had a sceptical view of legal processes as well as being deeply suspicious of the motives of lawyers themselves. But Dickens was actually a member of Middle Temple and, had things worked out differently, he might well have gone on to have a successful career in the law.

Pickwick in the attorney’s office

So, timed to link with Middle Temple Library’s current exhibition (May -August 2021,) the Inn has produced a short but charmingly well-produced digital display of 10 short videos which explore Dickens’ involvement in the legal world and how his writing was inspired by the experience.

Narrated by Barnaby Bryan, The Honourable Society of the Middle Temple’s Archivist supported by voice actor Tim Vaughan, the videos take the viewer from Dickens’ early days as a court reporter and subsequent affiliation to the Middle Temple through his friendship with the great judge Talfourd to his time with Doctors’ Commons. It ends with his final departure from the Inn in 1855 when he collected his £100 deposit paid many years earlier. As he pointed out when he left, he had no idea when he joined the Inn how much his novels and journalism were to take over his life. So definitely worth a watch at https://sway.office.com/dLytdenUoAhfkocj?ref=email

Data quality critical to law firms’ marketing success

According to the just-published Global LexisNexis InterAction Survey an overwhelming majority of law, accounting and financial service firms report that marketing and business development strategies have changed significantly over the past year. And it was the switch to digital outreach – eight out of the top ten marketing techniques used by firms were digital – which made the biggest diference to their success. Significantly the main challenge to marketing effectiveness cited by both law firms and A&FS firms has been data quality.

“The Covid-19 pandemic exposed business development and marketing strengths and weaknesses across every industry, but it also sheds some light on how law and accounting and financial services firms can improve,” said Brendan Nelson, General Manager of LexisNexis Software Solutions. “As technology adoption continues to help firms better capture, manage, and gain insights from their valuable data they can adopt a holistic and strategic approach to business development that will successfully drive firm growth.”

Key findings from the study include:

  • Pandemic-related issues were the top challenge for 51% of law firms and 42% of A&FS firms.
  • 54% of high-growth firms experienced a positive impact from the COVID-19 pandemic. The same could be said for only 11% of no-growth firms.
  • High growth firms are investing more in marketing and business development. High growth law firms project an increase of 38%. High growth A&FS firms spent an average of 15.5% of revenue on marketing, which was almost three times more than other firms.
  • When it comes to marketing/business development investment, A&FS and law firms differ greatly. Law firms will heavily invest in their firm’s website, CRM, and training for lawyers, whereas A&FA firms will direct investments to social media and email marketing in addition to CRM.

The 2021 InterAction Marketing & Business Development Survey is available for download here.

Drive at Your Own Risk

Yes, it’s another pain in the neck Image courtesy of FoyleLegal

This coming Bank Holiday Monday (31 May 2021) sees the the Whiplash Reform Programme coming into force across England and Wales. It means a big change in the way people injured in a road traffic accident (RTA) can claim compensation. But not everyone is happy about it arguing that it is too complicated and will put off those with genuine injuries.

“The lack of compassion and common sense shown by the government with the introduction of this programme beggars’ belief,” says Qamar Anwar, managing director of First4Lawyers. “While the government might sell these reforms as an opportunity for claimants to settle their claims quickly and without the need for court, the reality is quite different.”

The introduction of a do-it-yourself online portal for claims worth up to £5,000 has been accompanied by a ‘snappy’ 64-page user guide, explains Anwar.“How many claimants do they think will sift through 64 pages to guide them through their claim? Worse still, how will claimants know if their claim is worth more or less than £5,000?

 “And let’s not forget the new portal go-live date comes on a bank holiday, when it appears that the call centre to support injured claimants won’t even be open. Only this government could launch such a fundamental change to consumer rights, and then have no one on hand to assist claimants with what are going to be at best, teething problems. The portal has already had number of technical difficulties for professional users, so it doesn’t bode well for claimants.”

So if you detect a pattern of central government incompetence here you may well be right. [Bring back Dominic Cummings, say some readers].

Meanwhile, the LegalDiarist’s advice? Don’t take your car out on Monday. Or maybe best not to take your car out at all.

Hope for Crime

Doing time – James Lakewell, another bent defence solicitor from ‘Line of Duty’

Memories of the recent ‘Line of Duty’ series might be starting to fade but what cannot be erased is the awful image it presented of criminal solicitors. Without fail they appeared either dodgy or deadbeat.

So it was a breath of fresh air to hear the bold and inspirational words from the Criminal Defence team at Hodge Jones & Allen (HJA) this week. “At a time of continued pressure on the criminal justice system, we are delighted to welcome three young new lawyers to the department,” commented Raj Chada, Partner and head of department. “Our ethos is to provide the best service to all clients, from the protestor to the murder suspect, from the shoplifter to the city trader. Whatever their status, we will fight their corner.”

HJA is ranked as Tier 1 by Legal 500 and has defended some of the country’s most high-profile and complex cases. It has recently had a rebrand to reflect its diverse client-base and continuing effort to “fight for what’s right”. Among the new recruits is Higher Rights Advocate, Sania Shah, who has more than five years’ experience and specialises in serious and complex crime and youth crime. Surely she should be a model to inspire the next Line of Duty defence solicitor.

The Rich are Different

Meet the client Image courtesy The Wealth List

The launch by Fladgate of Walgate Family Office, a new London-based service to deal with the personal and domestic needs of wealthy families, is an interesting example of the growing diversification of services by law firms.

To be frank, it’s such an obvious move that it is only surprising that it’s not been done before.

Certainly one elite Lincoln’s Inn family law firm reported last year that it was often asked by clients not only to recruit chauffeurs and butlers for hyper-wealthy foreign families but also to recommend the best restaurants. But the Walgate development takes it up to another level. Other firms with that elite clientele should now follow. Assuming, that is, London can continue to attract the immensely wealthy despite the rapidly growing ‘Not Welcome Here’ list. 

CONTRIBUTED ARTICLES OF THE WEEK

SUBSIDISING THE WEALTHY: ARE THE COURT COSTS OF CIVIL FRAUD TOO LOW IN MEGA CASES? asks Dan Dodman

Dan Dodman

Civil fraud is responsible for some of the some of the greatest war stories in the legal world. For example, the battle between Boris Beresovsky and Roman Abramovitch springs to mind. Similarly, the USD6 billion claim in the BTA bank fraud which saw its chief perpetrator Mukhtar Ablyazov arrested whilst in France after he skipped the country.

These kinds of cases are legal legend that make careers.  They also drive innovative uses of the legal system. Asset tracing, freezing injunctions, document/evidence collection and third party orders are some of the tools used to advance cases. This requires a huge amount of Court resource and these claims create fundamental issues within our legal system. 

Take, for example, the issue of Court fees.  These are supposed to be representative of the cost of a Judge looking at a matter across the entire length of a claim and the cost of a Judge actually sitting and hearing a trial.  The issue fees on claims are capped at £10,000 (with a further £1,000 if a claim actually gets to Court). 

But £11,000 in a claim of USD6 billion? If a trial goes on for six months, this must count as the greatest bargain that the private sector can make from the public.

It also changes the way clients with smaller claims can interact with the system.  Recently, I worked with several individuals have lost their entire life savings to a fraudulent scheme.  Rather than watch their entire pension pots disappear they clubbed together to pay legal fees and begin proceedings Explaining to them that they then had to put their hands in their pockets to find a further £10,000 to bring a claim was a real challenge.   The legal system is supposed to represent everyone and there is a real risk that huge civil fraud claims prejudice this.  

What is the solution? There is an opportunity for these claims to effectively sponsor those people who cannot afford to bring proceedings.  Would it not be fairer for a trial fee of 1% to be levied on a claim of USD6 billion in order to allow claims of £300,000 or less from others that have lost everything to go ahead?  I would certainly think so.

Dan Dodman is a civil fraud lawyer at Goodman Derrick LLP, the London law firm.

APPOINTMENTS OF THE WEEK

Farrer & Co has appointed Gerard Heyes as a partner in its Disputes Resolution team.  He joins from Simmons & Simmons, where he was a managing associate in the London office specialising in financial services litigation, disputes and investigations and in managing contentious risk.

Gerard Heyes

“Gerard has great experience in a field that we see as strategically important to us,” said Siobhan Jones, Head of Disputes Resolution at Farrer & Co. “His appointment will add further strength and depth to our existing contentious financial services and regulatory expertise.”

Antony French, Anthony Rawlins and Deirdre Burgess are joining the Kennedys catastrophic injury team having left the BLM (formerly Berrymans Lace Mawer). They will be bringing with them six associates and a litigation assistant

Standing up for the injured at Kennedys

French had been head of the team at BLM’s having previously worked at Greenwoods. He handles complex, large and catastrophic injury claims arising out of road traffic accidents and casualty claims.

Burgess joined BLM from DWF and was also, prior to that, at Greenwoods. She has particular expertise in fatalities, serious orthopaedic injuries, chronic pain cases, brain injuries as well as suspected exaggerated and fraudulent claims.

Rawlins defends complex motor, employer’s liability and public claims. He has a particular interest in defending brain injury, spinal, amputation and chronic pain claims.

”Kennedys presence and forward-thinking attitude along with the experience we bring means that we can create the “go to” law firm in London for large and catastrophic injury claims for the next 20 years and beyond,” says French.

In the week when whiplash injuries are in the news the timing seems oddly appropriate.

E-VENTS

BRICK COURT CENTENARY SERIES CONTINUES

with

RICHARD SUSSKIND
5:30pm Wednesday 9th June 2021 online

Richard Susskind – The man with more than one plan

Richard Susskind is the world’s most cited author on the future of legal services. He has been the IT Adviser to the Lord Chief Justice since 1998, and is, amongst many other roles, the Chair of the Online Dispute Resolution Group of the Civil Justice Council, the President of the Society for Computers and Law and the Chair of the Advisory Board of the Oxford Internet Institute.

The Brick Court centenary presents an opportunity, alongside reflection on the past hundred years, to consider what the future holds for the individual barrister and the Bar as a whole.

Please join us for a talk on precisely that subject from Professor Susskind, which will be followed by discussion/Q&A, featuring responses from some specially-invited guests. 

Please register here:

https://attendee.gotowebinar.com/register/9129675369533221644

And finally…

WOMEN WHO WILL – LAST CHANCE TO NOMINATE (Act now!)

For the second consecutive year Obelisk Support and Next 100 years are welcoming nominations from senior general counsel and other senior leaders in law to feature in the 2021 report.

For this year’s “Women Who Will” report, they are asking general counsel to nominate the women they work with who they think are the leaders of the future. Please find the 2020 report here.

They are looking for women who have shown exemplary leadership. This might be in a position that comes with leadership responsibilities. They might also be showing leadership in the wider sense, through vision and action in the community or by acting as a champion for diversity, for new technology, or for new ways of delivering legal work.

Nominate a “woman who will” from your team or law firms today, for inclusion in this year’s report.

The deadline for submissions is 31 May.

Click here for more information.

We hope that you have found this edition of the LEGAL DIARY interesting – and even useful -. If so please relay on to colleagues and register as a follower. And continue to send diary-type news, insights, observations and commentary to

fennell.edward@yahoo.com

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…

Edward Fennell’s LEGAL DIARY

Friday May 14 2021 Edition 57

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

SHORT THOUGHT OF THE WEEK – ALL PRESENT AND DISTRESSED

100+ Time Pictures | Download Free Images & Stock Photos on Unsplash
Time is too short

Last weekend The Sunday Times ran a long and detailed article which painted a grim picture of the misery faced by many young lawyers in the City’s leading law firms. Rather than being improved by being allowed to work from home their lives were made much worse by the expectation of being constantly on-line with their availability traceable around the clock. They were in the bizarre position of being both totally isolated yet permanently under surveillance.

The compensation for this, of course, is mouthwatering salaries beyond the wildest imaginings of their contemporaries who might have gone into teaching, the civil service or even medicine. But the real irony of this is that the people who run law firms know how to say all the right things and put in place the semblance of support systems. But the truth seem to be that the old laws prevail. It’s the survival of the fittest, those who are the most determined and those with the greatest stamina. The rest will fall by the wayside. And it is not just in the UK. As reported just this week, one in four women attorneys in the US consider leaving the law because of mental health problems. In short, is being a corporate lawyer a sane way of life? Maybe it’s time to come clean about that.

The LegalDiarist

Please keep sending your news, insights and comment to fennell.edward@yahoo.com

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

– Modern Slavery Charity takes LawWorks Accolade

– EID Comes Nocking

– Romanians Show Promise

Innovative Approach to Innovation

+ CONTRIBUTED ARTICLES OF THE WEEK

– PUT A STOP TO TIKTOK?

– SUPPORT AFTER MISCARRIAGE

– FAKING IT ONLINE

– TIME TO SCATTER FROM E-SCOOTERS?

– BANG-TO-RIGHTS FOR FOOTBALL BROADCASTING

E-VENTS

THE LEGAL DIARY OF THE WEEK

Modern Slavery Charity takes LawWorks Accolade

Alumni | King's alumni | King's College London
KIng’s speaks for Itself

Earlier this week LawWorks announced the winners of its 2021LawWorks and Attorney General Student Pro Bono Awards sponsored by Lexis Nexis. Amongst the various awards the one that caught the eye of the LegalDiarist was ‘Best new pro bono activity’ which was scooped by the Protea Clinic, King’s Legal Clinic, King’s College London

This is a collaborative project set up by King’s Legal Clinic, Hammersmith and Fulham Law Centre and Hibiscus Initiatives to offer high quality legal advice for vulnerable migrant females, including foreign national prisoners, and to help identify and assist victims of modern slavery. “Service users come from very complex backgrounds and often experience mental health difficulties, language and cultural barriers, poverty, gender-based abuse, loneliness, homelessness and involvement with the criminal justice system,” said the citation. “These multiple disadvantages often mean that their immigration cases are complex and not easily resolved, so the students’ work is extremely challenging.”

The awards were presented by the Attorney General, the Rt Hon Michael Ellis QC, at an online ceremony.

EID Comes Nocking

Nokia Neo 130 Black
Call Me Out?

Eversheds Sutherland, Roschier, Bird & Bird, Quinn Emanuel, McKool Smith, and Alston & Bird are the first group of law firms to take part in the new EID (Equality, Inclusivity, and Diversity) Scorecard initiative from Nokia designed to assess EID progress made by the company’s panel of law firms.

The quarterly and annual assessments will help Nokia to make positive change outside of its organization with scoring based on a range of criteria including recruitment policies, equality of pay, the availability of mentoring and pro bono initiatives, and the presence of a dedicated E, I&D team.

“As a signatory of the European Round Table of Industrialists’ Inclusion & Diversity pledge, Nokia is committed to supporting every aspect of diversity in the workplace,” said the company, “whether through its work with external organizations such as Greenlight for Girls or through internal support networks such as OUTLeaders and EQUAL! for LGBT+ colleagues and allies.”

Another example of consumer power.

Romanians Show Resolve

While law firms from most EU countries are steering clear of London right now it is encouraging to see that the Romanian outfit MPR Partners, a multidisciplinary firm focused on commercial law especially in the CEE, is gearing up for a London opening within the next few weeks.

The London office will be headed by the firm’s co-founder and co-managing partner Alina Popescu (above) with the objective, it says, “Of supporting clients with operations across the UK and the EU, bridging the geographical gap during the Brexit transition and beyond.”

Popescu added that she and her colleagues see ‘a wealth of opportunities in London’ and hope to start local hires soon. “London has always been our benchmark in terms of quality of service and competitiveness,” she comments. “With Brexit and the ensuing opportunities, the new office is a natural step forward that will meet our existing clients’ demand for law firms with international presence and hopefully help us to tap into new markets.” 

Gelu Maravel, co-founder and co-managing partner, added, “The peculiar context we have been living in for over a year has made us realise the ever growing importance of innovation, transboundary reach, on-site approach and accessibility. Though it may seem like an ambitious move at this time, looking back at the numerous achievements of our past years together, MPR Partners has always been a bold firm to begin with – and we do not plan this to change anytime soon. We are thrilled to be opening an international office in London, a visionary city that boasts unparalleled legal expertise and a huge potential for business.”

Sentiments to warm the heart of Boris Johnson no doubt.

Innovative Approach to Innovation at Dechert

May be an image of 10 people and people smiling
A pretty innovative bunch

Dechert is launching a new, independently certified Innovation Program in partnership with innovation and design company, IDEO. Announced during the firm’s second annual Innovation Week, the program is part of a broader innovation effort at the firm, which includes an Innovation Training Curriculum. This is designed to give Dechert attorneys and business professionals proven skills and techniques to support innovative thinking and behaviors and help the firm to partner with clients even more effectively to solve their greatest business and legal challenges.

The programme include four modules of structured innovation training covering: (1) creative problem-solving, (2) client-centric service delivery, (3) effective pricing and matter management techniques, and (4) digital literacy.This forms a central plank in the Critical Skills Framework, a key professional development competency model that the firm uses to recruit, train, evaluate, and promote its people.

During its inaugural year, the program will be open to 40 lawyers and business services professionals. The program will then be conducted annually, with a planned increase in the number of participants.Sounds formidable and maybe a challenge for other firms to keep up. 

https://www.ideo.com/about/ideo-at-a-glance

Travers Smith’s Russ officially an ‘Ally’

“It is hugely heartening to see leaders from a range of industries working towards creating more inclusive workplace for people of colour across the world,” says INvolve, a global consultancy championing diversity and inclusion. And one of the people now recognised for her contribution to this endeavour is Travers Smith’s Senior Partner, Kathleen Russ.

Russ is now included in the EMPower list of ‘effective allies’ alongside other leaders committed to using their influence to advance equality for all. Amongst her endeavours have been

  • Delivering anti-racism and effective allyship training for all staff and partners.
  • Creating platforms for minority ethnic, but particularly black, people at the firm to convene in a safe space, and also providing wellbeing resources for those affected by the Black Lives Matter movement.
  • Partnering with human rights charity JUSTICE on the production of Tackling Racial Injustice: Children and the Youth Justice System, a report on racial disparities of children in the youth justice system.
  • Signing up to Rare Recruitment’s Race Fairness Commitment and the Law Firm Anti-Racism Alliance (LFAA) to promote racial equity in the law.

In addition, as part of the firm’s wider work in promoting inclusion for black and ethnic minority people, Kathleen hosted a firm wide ‘Celebration of Black Music’ during Black History Month (Oct 2020).

“Recognising that it is not the responsibility of people from minority groups to create a fairer society,” said Russ. “we continue to focus our efforts on fighting racial inequality by empowering our people to become more effective allies to people from ethnic minority backgrounds, both within the firm and wider society.”

For more see https://empower.involverolemodels.org/poll/2021-top-50-advocates/

CONTRIBUTED ARTICLES OF THE WEEK

LEGAL COMMENT OF THE WEEK

CARING AFTER MISCARRIAGE 

A growing number of employers are now offering their employees paid leave after pregnancy loss. KATE HINDMARCH, partner in Employment Law at Langleys Solicitors argues that more organisations should follow their example in breaking the taboo and giving support at this sad and stressful time.

It’s promising to see several big organisations taking the first steps towards normalising conversations around this type of loss, ensuring that those who need it are receiving the correct support. I hope to see more businesses of all sizes follow suit.

 While it’s great that these organisations are taking the lead on providing women and their partners the safety net of paid leave, there are still a lot of places where this subject is taboo, and employees struggle to prompt conversations around their own circumstances. As a result, many women and men have been left without support during what can be a very traumatic experience, as more than one in five pregnancies, sadly, ends in miscarriage.

Currently, there is no legal requirement to offer paid miscarriage leave for a woman or her partner, and there is a lot of variation in policies between workplaces. In some organisations, the only option for those affected is to take pregnancy-related sick leave, that is often paid at a fraction of their normal wage. This means that they will have the added stress of dealing with the loss of earnings while trying to grieve.

More businesses introducing policies that make it easier for people to broach the subject, and encourage them to take the time off they need, is a great way to remove the stigma around this loss. Following these recent high-profile organisations updating their procedures, we should hopefully start to see others doing the same, ensuring that those who need it are receiving the correct support in their time of need.

FAKING IT ONLINE

TIM FASSAM, Director of Government Relations and Policy at the Personal Investment Management & Financial Advice Association (PIMFA), welcomes publication of the Online Safety Bill but urges Government to do more to tackle clone investment fraud and fake online adverts

The publication of the Online Safety Bill in its current form is a great step forward in the battle to stop organised criminals defrauding the public.

But while the Bill attempts to tackle fraud via user generated content on social media sites and dating apps, paid for online adverts from fraudsters and cloned – and therefore fake – investment firm websites appear conspicuous by their absence from it.

We are, however, encouraged that the Bill will face pre-legislative scrutiny before being formally introduced to the House of Commons and look forward to working with Ministers and MPs in order to ensure that all financial harms, which have a devasting impact on the financial and mental wellbeing of victims, are included in the Bill.

As we, and our partners, have said from the beginning of this campaign, social media websites, search engines and domain name registration services all need to take responsibility for preventing online fraudsters from operating on their platforms.

PIMFA is the trade association for firms that provide investment management, investment services and advice to everyone from individuals and families to charities, pension funds, trusts and companies.

TIME TO SCATTER FROM E-SCOOTERS?

Following a spate of personal injury claims as a result of reckless e-scooter users, ROB DEMPSEY personal injury lawyer at Roythornes Solicitors, states his concerns about the scheme and how the government could make changes going forwards.

We’re coming for you

We are now approaching the halfway mark in the initial 12-month trial of e-scooter rentals across Britain, an appropriate time to assess its success, or lack thereof.

The trials were rolled out as part of the innovative ‘Transport Zones’ policies, which were given a fresh impetus by the pandemic in the hope of reducing public transport use. It has subsequently seen the use of rental schemes spread to more than 50 towns and cities – much more than the four transport zones originally envisaged.

Early Concerns ——

When the trial began, the law was changed to allow e-scooters on the streets, within the narrow parameters of the rental schemes, and a number of safety concerns were raised. Inexperienced users could find themselves on busy roads and cycle paths and the small wheels on the e-scooters are particularly vulnerable to potholes.

However, it seems that the most significant danger is to pedestrians. Numerous reports across the country have given examples of pedestrians being struck by e-scooters or vulnerable road users falling over abandoned scooters in the street resulting in serious injury.

Figures indicate around 70 injuries have arisen during the trial period so far. There are also reports of people riding the scooters whilst under the influence of drugs or alcohol. None of these can be a surprise and all were cited as potential risks before the trials began. Indeed, a pedestrian in Kent suffered a fractured leg, fractured arm and shattered elbow as a result of being hit by an e-scooter, describing it as “being hit by a car.”

Learning Points?—

So the question remains; Could we have prevented these injuries, and what can we learn from them?

When the consultation process for the introduction of rental e-scooters was underway, it was mooted that scooters should weigh no more than 35kg and have a maximum speed of 12.5 mph. This was supported by safety campaigners and so when it was eventually announced the scooters could weigh up to 55kg with a maximum speed of 15.5mph, it seemed a victory for the supporters of scooters over safety campaigners. The potential implications are clear. A sturdy mountain bike weighs around only 12kg, more than 40kg lighter than an e-scooter.

Whilst the Department of Transport took responsibility for the design and construction of the scooters to be allowed on the roads, they took a lighter touch with other aspects of their use, leaving local authorities and private rental companies to address issues such as where scooters can be parked, how many should be used, and to what extent users should receive training. This begs the question as to whether there should be a more uniform national approach.

As part of the ongoing review, Transport Nottingham considered the scheme to mark the halfway point of the trial. They acknowledged that whilst there was some support for the scheme (a daily average of more than 1,500 riders in the last two months), not everything has gone well, with inconsiderate parking, illegal or dangerous use, and drunk riding being singled out.

Safety campaigners would say this is no surprise – in fact it was anticipated and cited as a concern before the scheme was introduced. The Nottingham example shows, however, that a significant emphasis is being put on the e-scooter providers themselves to address these issues rather than as part of a wider government strategy, with the rental company sharing educational videos on the app, suspending accounts where there has been misuse and employing ‘ambassadors’ to monitor the use of the scooters.

Confusion—

The introduction of the rental schemes has led to confusion and the mistaken belief that e-scooters in general are now legal in the U.K. They are not. Their use outside the scheme on public roads will result in fines and penalty points on your licence, yet they are still a common sight on Britain’s roads.

Major retailers are playing their part in this. The introduction of the trials coincided with displays in shops selling e-scooters and insurance companies are now offering bespoke insurance for individual e-scooter use, which validates e-scooters as an accepted part of Britain’s roads alongside motorcycles and cars.

This adds to the feeling of inevitability that one day, e-scooters will be a common feature on our roads, especially now the genie is out of the bottle with the rental schemes. Even if e-scooters are not legalised for the general public, it is unlikely the rental schemes will be abandoned. Infrastructure has been put in place and rental schemes are common across Europe.

With that in mind, the focus should be on closer monitoring of use, some level of formalised training before use, and penalties for misuse. Whether these powers should be with rental companies or government is open to discussion.”

For more information visit www.roythornes.co.uk or follow @roythornes on Twitter.

BANG-TO-RIGHTS FOR FOOTBALL BROADCASTING

The crazy world of football governance and financing continues to be in the news following the Premier League’s agreement to extend the current television broadcast deal, says ALEX HAFFNER, Partner, Corporate Department, Fladgate LLP.

Big Tv Screen With Landscape Stock Photo, Picture And Royalty Free Image.  Image 23463527.
Somewhere out there ManU is playing Liverpool

The news that the Premier League has secured approval for a three year renewal of its TV rights deal, without the need for any auction – as would usually be necessary to ensure compliance by the EPL with competition law rules – shows how football as an industry continues to weigh heavily on the political and economic landscape. Equally interesting is the precedent this exclusion could set for other industries that may be knocking on the door of government seeking similar treatment in the near future.

The context for the decision was that given the current economic climate and also industry specific developments (eg BT Sport reportedly being up for sale) meant that there was a risk of domestic media rights values being depressed. So getting the same overall value as last time around without the risks of auction was seen as a deal worth taking – especially with all the clubs having taken such a financial hit during Covid and being so reliant on media rights income.

 The Premier League has effectively paid to get an otherwise, anticompetitive deal over the line at a time when clubs would have been very nervous in testing both relations within existing broadcast partners, who have shown relative patience and support throughout COVID, as well as the wider market in terms of values.

 The price paid, of course, is a cool £100m to the lower level of the football pyramid below EPL. The interesting question is whether this is a one off and linked to the now scrapped ESL project, or whether this is the start of a genuine increase in the sharing of wealth amongst the entire football community and a sign of things to come in terms of government policy and approach.

PUT A STOP TO TIKTOK?

Will the law stall the ever-upwards growth of TikTok asks Jon Belcher

The video-sharing app TikTok enjoyed spectacular growth during the pandemic and now has over 800 million users worldwide. The app’s parent company, ByteDance, has been valued at US$400 billion ahead of a potential public offering. However, the company is now facing a multi-billion pound UK court case for alleged mishandling of children’s personal data.

The lead claimant is an anonymous 12 year old girl from the UK, who is supported by former children’s commissioner for England, Anne Longfield. The case is being brought under UK data protection law as a representative action on behalf of all children under 16 across the EU (or under 13 in the UK), who have used the TikTok app since the EU’s General Data Protection Regulation came into force on 25 May 2018. An adverse ruling could see the company pay damages to millions of users.

The case poses a significant threat to TikTok and unsurprisingly, the company promises to fight it vigorously. Although still at an early stage, the outcome may hinge on the forthcoming judgment in a recent UK Supreme Court case, Lloyd v Google, which will determine the viability of large-scale representative actions under data protection law.

If it proceeds, the TikTok case could be the first of many such claims amid a global trend towards ever tighter regulation of social media and tech platforms. TikTok has already been fined in the US and South Korea for mishandling children’s data. In the UK, the government has recently published an Online Harms Bill, while TikTok and other online services will already be working to comply with a new UK code of practice which sets out mandatory standards of age appropriate design. The code, produced by the Information Commissioner’s Office, applies to apps, social media platforms and websites likely to be accessed by children. Whatever the outcome of the case against TikTok, the processing of data about children will remain in the spotlight for some time to come.

Jon Belcher is a specialist data protection and information governance lawyer at Excello Law www.excellolaw.co.uk

Maybe it’s over?












E_VENT THE BINGHAM CENTRE FOR THE RULE OF LAW

Marking the conclusion of the “Power and the COVID-19 Pandemic” Symposium, this webinar series brings together contributors from around to the world to discuss the impact of the pandemic on law and governance, drawing on five transversal themes: human rights; democracy; the rule of law; science and decision-making; and the impact of an extended emergency.

WEBINAR 5: “Quo Vadis? – The impact of an extended pandemic”
Friday, 14 May 2021  | 14:00 – 15.30 BST / 15.00 – 16.30 CEST 
 

How has COVID-19 impacted upon legal and political systems; minorities and indigenous peoples; and conflict-affected states in transition? This final panel debates themes of trust, equality, conflict and power, and concludes with a commentary by the convenor of the Symposium who will draw together key findings, emergent threats, and reasons for hope.

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