Edward Fennell’s LEGAL DIARY

Friday 3 December 2021 Edition 83

SHORT THOUGHT FOR THE WEEK

Fraud? Look and you’ll find – it’s now everywhere.

Today the Parliamentary JUSTICE COMMITTEE has launched a new inquiry to investigate the criminal justice system’s approach to combatting fraud. The need is urgent.  The first half of 2021 saw a 285% rise in online fraud fuelled by the increased use of online platforms during the pandemic. And it is calculated that 350 people a week are victims to a fraud that leaves them in severe emotional distress.

Fraud is one of those crimes which shades into the world of the commercial law business. Like money-laundering it can entangle even reputable law firms. Among a number of questions being followed up by the committee are:

  • How the Justice System conducts fraud investigations and prosecutions;
  • The roles of the Crown Prosecution Service and the Serious Fraud Office in the prosecution of fraud;  
  • The prosecution of frauds that are not of sufficient scale to be investigated by the Serious Fraud Office; 
  • Problems with evidence and disclosure in the prosecution of fraud cases;

It is quite possible that you – or some of your colleagues – might have useful insights to offer on these issues and, if so, the Justice Committee would be keen to hear from you. More information on how to submit evidence is available here

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

Wig & Pen Prize for pro bono legal work goes to Angela Dimsdale Gill

Scots Do Love a Lawyer

No Gulf Too Wide for Expat Law

– Eversheds Sutherland launches its SQE Academy

– Pedlars Pull in £130K for Breast Cancer Now

Cool Support for Tech Start-Ups

+ LEGAL INSIGHT OF THE WEEK

TOPIC: Meghan versus The Mail – The latest developments!

– TOPIC: The ICO’s decision on Clearview AI 

+ CONTRIBUTED ARTICLES OF THE WEEK

Getting Ready for the UK National Security and Investment Act: The View from Sidleys

+ APPOINTMENTS OF THE WEEK at Seladore and AG

+ E-VENTS

Angela Dimsdale Gill









Angela Dimsdale Gill of Hogan Lovells has been named as the winner of this year’s Wig & Pen Prize in recognition of her thirty year involvement in pro bono work. Awarded jointly by the City of London Solicitor’s Company and the City of London Law Society the award celebrates the pro bono legal work of City lawyers.

Dimsdale Gill was instrumental in setting up the full-time pro bono practice at Hogan Lovells in 1997 which is believed to be the first of its kind in the UK and continental Europe. She herself has become very involved in providing pro bono support to clients across a range of innovative, complex, and often traumatic issues. Among these she is particularly celebrated for her work with the Hostage International organisation through which she has provided advice and support to individuals and families dealing with a kidnap or disappearance.

Over the course of a brilliant career, Angela Dimsdale Gill has made – and continues to make – an outstanding pro bono contribution to the law,” said Edward Sparrow, Chairman of the City of London Law Society, “She is a worthy winner of the 2021 Wig & Pen Prize. As well as demonstrating understanding of complex and often highly specialist legal issues, she has acted at all times with compassion and empathy for those she advises. Her impact on the pro bono landscape in the City deserves acclaim.’

Scots Do Love a Lawyer

Not quite your typical Scottish law firm? The alcoholic solicitor and his dodgy partner from the recent TV series GUILT Image courtesy of BBC

Do the Scots have a certain softness for lawyers? Given the widespread popularity of Nicola Sturgeon you might think that there must be something else going on beyond just the competence (or otherwise) of her Government. So maybe it’s her legal qualification which gives her that extra boost because, according to polling undertaken by the Law Society of Scotland, there is 90%+ client satisfaction with the performance of Scottish solicitors by the public.

This represents, the Society says, a ‘huge vote of confidence’ in the profession and showed that members of the public place ‘high levels of trust in solicitors and said they are highly trained professionals’. Further evidence of this, it has to be admitted, is offered by the recent TV series Guilt where the clients had a touching level of confidence in the alcoholic lawyer and in Shetland where the dodgy solicitor was much admired all-round. Could this be replicated south of the border, one wonders.

No Gulf Too Wide for Expat Law

Is there’s a growing Gulf between us?

Now here’s an interesting development. Niche firm Expatriate Law is opening a new office in Abu Dhabi to provide an on-the-ground international family law advice to expats and families with links to England who are living in the UAE and across the Middle East.

Leading the office will be award-winning partner Byron James who has been based in the Middle East for several years and has an expert understanding of the local law and culture and, in particular, the way in which it affects expatriates.

“For  expats it can be especially  difficult to know where to turn for accurate and trusted advice in the event of marriage breakdown,” says James. “The effective conduct of a cross-border divorce requires technical knowledge combined with practical experience of a number of niche areas of law.  It is essential that clients seek out the assistance of a lawyer who is able to deliver strategic advice relating to, for example: choice of jurisdiction for divorce, domicile residence and nationality, international injunctions, recognition of foreign marriages and divorces, stays and forum disputes, cross-border enforcement and financial relief in the English courts following an overseas separation.”

Expatriate Law is ranked in Band 1 for Family Law – High Net Worth in UAE by Chambers & Partners.  

Eversheds Sutherland launches its SQE Academy

Week-in, week-out it seems that leading law firms are innovating in how to train and develop their paralegals. So this week it’s the turn of Eversheds Sutherland (International) which is launching a ‘Solicitors Qualifying Examination (SQE) Academy’ for its existing cohort of paralegals in the UK. This take advantage of the new legal qualification route introduced this year by the SRA and will provide the required training, preparation course, work experience and supervision to enable the paralegals to become qualified lawyers. To get the scheme going the firm will support ten paralegals, with paid time off each week for their studies.’

“Our SQE Academy will enable our candidates to move their careers through training to qualification as lawyers over the next two years,” commented Lorraine Kilborn, Chief People Officer, Eversheds Sutherland (International). “By opening up a new route to a legal career for candidates who will come through from more diverse backgrounds, we are reflecting the communities we operate in and meeting the demands of our clients who look to our firm to invest in and shape the future of legal services.”

The firm has also launched in recent months a Legal Technology Graduate Scheme and a  Risk and Compliance Graduate Scheme

Pedlars Pull in £130K for Breast Cancer Now

Raising funds wherever

Lawyers in lycra’ cycled their way to a massive £130,000 for the charity. Breast Cancer Now in this October’s ‘Tour de Law’ fund-raiser. Competing in teams of up to ten 1,300 legal professionals from 54 offices across the UK were involved and managed to complete – virtually, of course, mostly on static or gym bikesa total of 43,876.25 kilometres.

Coming out on top as #TourdeLaw2021 Cycle Your Way champions was the ‘Underdogs’ team from Simpson Thacher & Bartlett which managed to pedalpush furthest over the course of the weekend of the event. Meanwhile Ward Hadaway and CMS zipped in not too far behind.

Among other leading outfits involved were Squire Patton Boggs, Duncan Lewis Solicitors, Kirkland & Ellis LLP, Graysons Solicitors, DLA Piper, Clifford Chance, Stowe Family Law LLP, Cloisters, Reed Smith LLP and 2 Harcourt Buildings. Appropriately enough Wheelers Solicitors also took part.  

It’s been a real treat to get everyone on their bikes and working as a team,” said Simpson Thacher & Bartlett. A huge thanks to all the different teams that took part. We look forward to doing it all again next year!” 

If you’re interested in taking to the saddle in 2022 contact  tourdelaw@breastcancernow.org.

Cool Support for Tech Start-Ups

US law firm Cooley has announced plans to direct its experience in DEI (diversity, equity and inclusion) to the UK tech industry via its London office. The firm is partnering with Libra (Tech Nation’s growth programme for start-ups with at least one Black or multiracial founder) to provide access to capital, commercial opportunities and professional networks to entrepreneurs from under-represented backgrounds.

As part of the partnership Cooley will offer practical guidance on how to secure institutional investments to a cohort of 30 companies, most of which are at the ‘seed or pre-seed’ stage or have yet to raise their first funding rounds.

“With under-represented founders facing a historic lack of access and a significant lack of diversity within venture capital, we are excited to partner with Libra as they drive change around how capital is allocated and accessed,” said Chris Coulter, a London-based Cooley partner and member of the firm’s diversity committee.

 Over a period of six months, the 30 cohort companies will enjoy 60+ hours of support and mentoring by world-leading scale coaches on fundamental growth challenges – from fundraising to international expansion.

“I am confident Cooley’s contribution will help under-represented founders on their growth journey and provide vital support for these companies to take with them long after they complete the program,” said Abi Mohamed, who leads the Libra program at Tech Nation.

TOPIC: Meghan versus The Mail – The latest developments! 

Those happy days of yore

On the Privacy issue……..  Steven Heffer, Partner and Head of Media & Privacy at Collyer Bristow,comments:

In general terms, privacy law requires the Court to balance the Claimant’s right to privacy against the rights of the press to publish matters which are in the public interest, but this is not the same as what the public may be interested in reading. 

The court has repeated that the contents of the letter were private personal and not matters of legitimate public interest.The Mail had relied on new revelations about the drafting of the letter but this was not enough to counter Meghan’s very strong claims to privacy and copyright. Had they persuaded the Court of Appeal, even to tip the balance in favour of ordering a trial this would have been regarded as a major victory for the press. As things stand it is another bad loss for the Mail and they will face heavy costs consequences, as well as damages.

None of this is new law, the courts deal with this balancing exercise all the time in media cases. An individual has the right to a private life, and to keep information private, but the media has a right to publish information if there is a genuine public interest in the story. It is clear that the Mail failed to establish any such public interest in this case.”

On the outcome of the appeal ……Steven Heffer comments

 The outcome of the appeal should not surprise those who have closely followed the legal principles involved in the case, despite the heavy legal fire power brought into play by the Mail.

 The case was originally decided by a senior and respected High Court Judge who had practised as a media lawyer often acting for newspapers. He could not be accused of being Claimant friendly. His reasoned judgment set out in detail why she was entitled to judgment without a trial. That was hard for the Mail to take as they wanted the spectacle and drama of a big trial with cross examination of Royals and Royal aides.

..Michael Gardner, Partner at Wedlake Bell, comments

 “Good news for Harry and Meghan from the Court of Appeal. The Court of Appeal has dismissed an appeal by Associated Newspapers against an earlier High Court ruling in favour of the Duchess of Sussex.The Court upheld her claim that the publication of the letter was an unlawful intrusion into her privacy.

There was no need for the Mail to have published so much of the letter.  The Duchess’s right of privacy was not outweighed by the Mail’s right to freedom of expression. The new evidence unearthed by the Mail ahead of the appeal hearing in the form of a statement from Jason Knauf did not affect their judgment. There was no need for a trial of the claims.  The High Court ruling was upheld. The Court accepted the Duchess’s apology for her lapse of memory.

Edward Machin, a lawyer in Ropes & Gray’s Privacy, Data Protection and Cybersecurity team comments:

Announcing its ‘provisional intent’ to issue a ‘potential fine’ suggests that the ICO may now be incorporating an element of self-preservation in its approach to enforcement. This approach looks more like the starting point for a discussion about liability rather than a final and unilaterally determined penalty. Given that each of the ICO’s provisional fines have been reduced on appeal, often significantly, there’s logic in wanting to avoid a similar fate in future cases. But having publicly trailed a large headline figure, if the final penalty is reduced or scrapped entirely it risks the ICO being seen as a regulator that struggles to get its largest enforcement actions across the line.

CONTRIBUTED ARTICLES

Getting Ready for the UK National Security and Investment Act

Alessandra Moroni, Associate & Patrick Harrison, Partner in Sidley’s Private Equity team and Sven De Knop, Partner for Sidley’s Global Arbitration, Trade and Advocacy teamhighlight the implications of the new Act

Consistent with recent investment screening reforms across Europe, in April 2021, the United Kingdom (UK) adopted the National Security and Investment Act (NSIA). NSIA introduces a comprehensive investment screening regime that will apply from January 4, 2022, with significant implications for ongoing and future transactions. Significantly, the UK government will screen investments both in domestic UK businesses and offshore businesses with connections to the UK (e.g., a UK subsidiary or contracts to supply critical goods to UK customers).

NSIA requires certain investments into ‘critical’ sectors (e.g., data infrastructure, artificial intelligence, dual-use items) to be approved prior to closing. NSIA also empowers the UK government to call in’ for review transactions that are otherwise deemed to pose national security risks, whilst also giving investors the option of requesting a voluntary review.

What should parties to a transaction bear in mind?

1. Approval requirements: Parties will have to assess whether pre-closing approval is required or whether the risk of a call-in warrants a voluntary filing, and should consider the likelihood of the transaction being prohibited or subjected to conditions.

2. Contractual provisions: Transaction documents should reflect the requirement to obtain approval, or the decision to make a voluntary filing. For transactions that may close on or after January 4, 2022, parties should consider a ‘springing condition’, to ensure that relevant approvals are obtained if closing only takes place after January 4, 2022.

3. Timing: Parties to transactions that may close on or after January 4, 2022 should consider (a) that there may be a rush of notifications on or shortly after January 4, 2022, which might delay approval, and (b) that there may be a benefit to engaging with the relevant department – the Department for Business, Energy and Industrial Strategy – in advance of January 4, 2022, to ensure as smooth a process as possible. Parties to transactions set to close before January 4, 2022 should also assess the risk of a call-in and make sure that contractual provisions give them the ability to apportion risk appropriately.

APPOINTMENTS OF THE WEEK at Seladore and AG

Gary Milner-Moore

 Formerly with Herbert Smith Freehills (HSF), where he was a senior equity Partner, Milner-Moore has worked on international insolvencies including the global insolvency of Nortel, one of the largest corporate bankruptcies in history. He has also advised major financial institutions, including in relation to financial derivatives. andoccupied various roles in the firm’s disputes practice and lead on a number of high-profile client assignments. As a qualified Solicitor Advocate, he has appeared both in Court and in arbitration proceedings.

At Seladore, Milner-Moore reunites with a number of former HSF colleagues, including Seladore founder Simon Bushell, and Partners Gareth Keillor and Kevin Kilgour. Simon Bushell commented: “Gary’s intellectual prowess, collegial nature, and his resilient character are well known to us and he is a natural fit for Seladore. He is an exceptionally good lawyer with a notable reputation for conducting heavy cross-border disputes of real complexity and importance. We are delighted to welcome Gary to the practice.”

Jacqueline Heng has joined Addleshaw Goddard in their Debt Capital Markets team.

Jacqueline Heng

Qualified in England and New York and formerly with Norton Rose Fulbright Heng has particular expertise in green and sustainable bonds and isable to advise across multiple jurisdictions. Her recent work has included advising HSBC, NatWest Markets, Sandvik, Ecobank and Scotiabank.

Heng’s recruiment is part of the current drive by Addleshaw Goddard to grow both its domestic and international offering – especially in finance. She has been recognised as a Next Generation Partner by Legal 500 and a Rising Star by IFLR.

“ESG (Environmental, Social, and Governance)-related finance has never been more important to our clients, and Jacqueline’s specialist knowledge here adds to an already enviable bench strength of recognised experts in this space,” said Amanda Gray, Divisional Managing Partner for Finance. “AG has made a real name for itself in the sustainable finance sector and this is a sign that we are committed to continuing our focus.

“With Jacqueline’s arrival, 41% of the London Finance partner group are women. We’re committed to building diversity in every sense as we know that diversity of perspective improves our overall offering to both our clients and our people.” 

E-VENTS

GRESHAM COLLEGE – JUDICIAL RACISM

The 2017 Lammy Report shows Black defendants get worse outcomes if tried by judges
Black defendants get worse sentences for the same crimes than white defendants
Lecture sets out seven steps to help judges make fairer decisions
.

Learn more through the online lecture on Judicial Racism and the Lammy Review on 7 Dec, 6pm, by Professor Leslie Thomas QC. In this lecture Professor Thomas will look at this history of judicial racism in England, at judicial racism today, and at what society can do about it. He will draw on his experience as a practising barrister and on research showing that judicial racism exists, for example that black defendants get better outcomes via a jury trial than if they are tried by a judge; and black defendants generally get worse sentences for the same crimes than white defendants. He will also look at the underrepresentation of Black and Minority Ethnic people in the Judiciary.

“Most people know that the English legal system has long had a race problem. Yet, we often attribute this to policing only, allowing the wider justice system – judges in particular – to get off scot-free. However, judicial racism has, and still does, play a critical role in perpetuating racial inequity.” Professor Thomas will say

In the lecture Professor Thomas will go on  to look at 7 suggested steps to ending judicial racism, including “swift and decisive disciplinary action against judges who make racist comments in court or who treat litigants and lawyers of colour with disrespect”; and a requirement for judges “to communicate, outside of a court setting, with people and communities for whom their decisions impact.”

You can sign up to watch this lecture via the link below

Judicial Racism and the Lammy Review

6 pm -7pm GMT, Tues 7  December, online (or watch later)

gres.hm/judicial-racism

REPORTS LEGAL Podcast in association with Jersey Finance
Click here to listen to the podcast

ESG, NextGen and the Next 10 Years:

Impact & Profit: many family office decisions are being guided by ESG. How are lawyers/law firms/wealth advisers adapting?

Investment strategies: how are clients embracing ESG-focussed investment strategies?
Client objectives: are philanthropy and impact investing becoming increasingly intertwined?

Participants
Dominic Carman, podcast host, editor Reports Legal
Robert Moore, Director – UK, Jersey Finance
Simon Finch, Chartered Wealth Manager – Investment Consultant, Enhance Group
Josephine Howe, Partner, Ogier

We hope that you have found this edition of the LEAL DIARY of some interest.

If so, please relay on to colleagues and friends.

fennell.edward@yahoo.com

Have a good weekend – and hope that you don’t get too cold!

Edward Fennell’s LEGAL DIARY

Friday 26 November 2021 Edition 82

SHORT THOUGHT FOR THE WEEK

– REACH FOR A LAW BOOK (which AI will read for you)

Nothing robotic about Richard

The stand-out speaker last night at the International Law Books Facilitys 15th Anniversary celebrations – sponsored by Brown Rudnick – was Professor Richard Susskind OBE, the pioneer guru of IT in the law, who entertained his audience with reflections on the pros and cons of the traditional book versus the kindle as well as his vision of the future of law.

To the surprise of some he confessed that, in many contexts, he still prefers the book. “I love books and I don’t want to see the end of them any time soon,” he said. But having recommended everyone in the audience to write a book – if only for the joy of handling, for the first time, the finished printed product – he went on to paint a powerful picture of the impact that IT and AI will have on the law. “I can assure you,” he declared, “that AI will have transformed the law by 2030 and that’s why we are very lucky to be alive in this period.”

So is AI the long-awaited deus ex machina which will solve the shortage of criminal barristers and cut the ever-lengthening list of cases festering for justice? Certainly Professor Susskind believes that there is a moral case for the widespread adoption of on-line courts as a way of making the law more accessible. However, as former Google boss Eric Schmidt pointed out – almost terrifyingly – on Radio 4’s Today programme this morning, the dangers of AI ‘taking over’ cannot be over-stated. An AI-driven future is not risk-free – especially in a court room

The LegalDiarist

In this week’s edition

+ SHORT THOUGHT FOR THE WEEK: Susskind on books, AI and the Law

+ LEGAL DIARY OF THE WEEK

– Law Firms Do Well For Social Mobility (up to a point)

– More Apps Please (including BCLP)

– Privileged Classes (according to Lex Mundi)

– INTERPOL now a Threat to Justice?

– Let’s not make any bones about it (physiotherapists and the law)

+ LEGAL COMMENT OF THE WEEK

TOPIC: Banks to compensate victims of money transfer scams for losses by Stephen Rosen

– TOPIC This week’s opinion for the UK Information Commissioner’s Office regarding data protection and privacy expectations for online advertising by Edward Machin

 TOPIC: Findings from the latest ONS migration statistics by Farzin Yazdi

+ CONTRIBUTED ARTICLE

COP26: THERE MAY BE LEGAL COMPLICATIONS AHEAD points out George Borovas

+ E-VENTS

Law Firms Do Well For Social Mobility (up to a point)

B bbing Ab ut

The Social Mobility Foundation (SMF) has just published its annual list of top performing organisations and once again legal outfits – predominantly but not exclusively firms of solicitors – do very well making up 25% of the Top 75 (although, admittedly, this was down from 30% last year). Banking, financial services and insurance represented the next 18% (unchanged from last year), while the public sector formed another 16% (down from 22%).

The Index weaves together two strands – questions directed at employers and an employee survey. Employers are evaluated across seven areas such as working with young people and progression, while the employee survey contextualises this data. There was some disappointment this year, however, at the percentage of organisations collecting data on retention and progression – although this might be attributable to Covid. The survey results also came with a word of warning from the SMF. “Just 11% of organisations collect and analyse data about pay by socioeconomic background,” it said. “Collecting this data is vital for organisations to measure and address the extent to which people from lower socioeconomic backgrounds can get on once recruited, so these numbers are disappointingly low.”

Linklaters was one of the Magic Circle firms to feature in the list and David Martin, Global Diversity and Inclusion partner at Linklaters, commented,  “I’m very proud of all of the work that is being done at Linklaters, which has led us to be featured in the Social Mobility Employer Index again this year. Our ambition is to be a leader on social mobility, and we will continue to work hard to level the playing field and ensure that an individual’s background is never a barrier to opportunity at Linklaters.”

So here’s the SMF list for 2021 in rating order for law firms:

01 Browne Jacobson

03 Herbert Smith Freehills LLP

09 Bryan Cave Leighton Paisner LLP

11 Ministry of Justice

13 CMS

15 Squire Patton Boggs

17 DLA Piper

19 Baker McKenzie

24 Allen & Overy

26 Crown Prosecution Service

27 Slaughter and May

28 Linklaters LLP

30 Pinsent Masons LLP

34 Lewis Silkin LLP

35 Hogan Lovells

37 Freshfields Bruckhaus Deringer

42 Shoosmiths

43 Simmons & Simmons

44 Brodies LLP

47 Eversheds Sutherland LLP

48 Osborne Clark

50 Shepherd and Wedderburn

51 DWF Law LLP

52 Macfarlanes LLP

53 Clyde & Co LLP

56 Burges Salmon

59 Addleshaw Goddard LLP

62 Radcliffe Chambers 63

RPC LLP

67 Taylor Wessing LLP

68 Mishcon de Reya LLP

69 Ashurst

70 White & Case LLP

74 Mayer Brown

More Apps Please (Apprenticeships that is)

Southampton’s medieval walls – NO barrier for apprentices

One of the key recommendations arising out of this year’s Social Mobility Foundations index is that employers should have “A well-structured non-graduate route.” For the legal profession that means the adoption of apprenticeships. And by happy coincidence just this week Bryan Cave Leighton Paisner’s extended its award-winning apprenticeship scheme to its Southampton office.

“We are really excited to extend the award-winning BCLP apprentice scheme into our Southampton office next year,” said  Partner in Charge (Southampton) Anna Robbins. “It’s so important to continue to broaden the range of routes we can offer towards solicitor qualification and this is a great opportunity to extend our established scheme into our growing Southampton office.”

BCLP originally launched its apprenticeship programme in 2015, with three recruits into its Manchester office. Subsequently it has helped develop this new route to qualification as a Solicitor, with 21 Apprentices currently in the Manchester office across the roles of Paralegal, Solicitor and Trainee Solicitor. But Southampton is an increasingly important legal centre and it’s good to see it trail-blazing on the Apprenticeship path for the deep South (which, believe it or not, also needs a bit of levelling up).

Privileged Classes

Lawyer-client privilege and confidentiality – how much do they vary around the world?

For anyone with international business crime issues this has to be an important question. So Lex Mundi , the global network of independent firms, has tapped into its contacts and has just published an expanded Global Attorney-Client Privilege Guide. Developed between the Lex Mundi Litigation, Arbitration and Dispute Resolution Group and Jenner & Block ( the Lex Mundi member firm from Illinois, USA) it claims to be the broadest resource of its kind freely available to General Counsel and in-house legal teams.

Certainly it is ambitious covering a total of 106 jurisdictions in 69 countries and including US federal law, the State Law of 32 US states, and the law of 4 Canadian provinces. “The Lex Mundi Global Attorney-Client Privilege Guide is the broadest resource available regarding attorney-client privilege and professional confidentiality,” commented David Greenwald, Partner at Jenner & Block LLP, “The Guide enables in-house and outside counsel to identify key and significant differences among jurisdictions and provides citations to enable further research. Each submission discusses whether or not the jurisdiction considers in-house counsel to be within the privilege or bound by the rules of professional confidentiality.”

So could be useful!

INTERPOL now a Threat to Justice?

See one of these and be very afraid

Following the news that the UAE’s Major General Ahmed Naser Al Raisi is the new President of Interpol one or two people have queried whether it can be relied upon as the bastion of law and order internationally which we might have assumed. As Radha Stirling, CEO of IPEX Reform commented bluntly. “Interpol is complicit in numerous and serious human rights abuses and will soon be held to account. Interpol has become a pay-to-play organisation, open to manipulation and abuse by countries with poor human rights records. Countries like the UAE, Saudi, Qatar, Bahrain, Iran, Turkey, Russia, Egypt and China have been able to use the crime tool for their own personal vendettas.”

Oh and that wasn’t all. Ms Stirling went on to say, “Innocent individuals have been listed on Interpol, arrested, detained and tried for “crimes” that don’t even meet Interpol’s minimum reporting criteria. Journalists, activists, businessmen and credit card debtors have been locked up in Western nations at the mere request of countries who repeatedly take advantage of their membership with Interpol.”

So well, er, that’s a bit worrying.

Let’s not make any bones about it

One knows that the world is going seriously awry when a physiotherapy practice – Yes, PHYSIOTHERAPY! – is caught ripping off a health insurance company. Talk about kicking someone when they are down!

The case involved Covea Insurance which had received an invoice for treatment from physiotherapist Mark Browes at 10 Bridge Limited. The invoice was shown to be fraudulent with the result that Horwich Farrelly, the specialist insurance industry legal services firm, alongside Covea Insurance, were able to recover £35,000 in legal costs.

Now while this might be just a small wince for a city law firm it’s a pain in the neck for those outside the London elite. As Jared Mallinson, Partner and Head of Counter Fraud at Horwich Farrelly, said, “It is rare for a physiotherapy company to be found to have presented a fraudulent document and this case marks an important victory over such a professional organisation.”

Kelly McQuaid, the Associate Partner who handled the case added that, “Insurers rely on the honesty and integrity of the medical profession when assessing claims for physical injury.”

Quite right. Physiotherapists above all others should not have a dishonest bone in their body.

TOPIC: Banks to compensate victims of money transfer scams for losses

Stephen Rosen, financial services partner at Collyer Bristow, comments:

The banks will rarely accept responsibility for money lost to scammers even though their own compliance failures are to blame. This leaves victims helpless, because they simply do not have the funds to start a David and Goliath fight. There must be a change.

Banks have the financial means and ability to put stronger checks in place that would prevent push payment fraud. Until now they have had no incentive to work harder, so this legislation is a welcome arrival.”

TOPIC This week’s opinion for the UK Information Commissioner’s Office regarding data protection and privacy expectations for online advertising.

Edward Machin of Ropes & Gray’s Privacy, Data Protection and Cybersecurity team comments

 “Online advertising and privacy have become a Gordian knot for businesses and regulators, as they grapple with identifying how to use rapidly evolving advertising technologies in a privacy-compliant way. Yesterday’s report is a good example of this tension, in which the regulator provides high level guidance on its expectations and asks industry to propose solutions that unravel the knot. That is no easy task, and companies would be forgiven for wanting more concrete examples of what they can and cannot do when designing and using complex online technologies.”   

As an example, the ICO requires companies to build data protection by design and default principles into their existing technologies rather than wait for privacy-friendly solutions to emerge. But that will often be easier said than done for technologies currently in use that are not configured, and cannot quickly be retooled, to meet those standards. That said, most businesses can take comfort from the fact that enforcement does not appear to be the ICO’s immediate priority in this area.”

 TOPIC: Findings from the latest ONS migration statistics.

Farzin Yazdi, Shard Capital’s Head of Investor Visa who works closely with immigration lawyers regarding Tier 1 (Investor) visa category, comments.

  “Whilst today’s headline migration numbers fell considerably, the statistics show that investor visa applications are back to pre-pandemic levels. This is the first quarter where the UK removed most COVID restrictions, but the entire world has not fully opened which is why China & Hong Kong, whilst still the top nationality of origin, only account for 28% which is around half of normal levels. Americans continue the trend with 10%, after Russians with 12% of applications issued.

From an investment perspective, the UK is still attractive to HNW migrants. In addition to takeovers, the daily news of investments into start-ups, early stage, and scale up capital continued to amaze most market participants.

As a result of Brexit, European Investor applications are materialising from France, Cyprus, and Switzerland. In a post Brexit world, you are limited to the time spent in a European destination before having to navigate your way through their immigration system. The UK has become a new market to those countries in the same way Europeans have for the UK’s Investor Visa.”

CONTRIBUTED ARTICLES

George Borovas

The past few weeks have been astonishing with respect to the prospect of seeing a wave of new nuclear build around the world. There seems to be an emerging consensus that nuclear is absolutely necessary for the world to tackle climate change but also sustainable development.

In the past few weeks, a number of countries appear to be moving forward with national plans to develop new nuclear. For example, Romania just signed an agreement to build a Small Modular Reactor (SMR) with NuScale of the US, France is expected to announce an ambitious EPR new build programme alongside the development of its own SMR technology and the UK government has announced an investment in the Rolls Royce SMR consortium, as well as establishing a new financing model for nuclear projects, the Regulated Asset Base (RAB).

But are there legal challenges that may delay this new build in the UK and elsewhere?

One important challenge, especially for the emerging SMR and Advanced Reactor (AR) technologies, will be the application of the international conventions and national regulatory frameworks to these technologies so that they may be licensed without delays. As these new technologies were not contemplated when most of the nuclear conventions and regulatory frameworks were drafted, these would need to be reviewed and appropriately modified. A significant difficulty with these novel designs will be to demonstrate and approve their safety case which will be based on passive safety features as well as reduced off-site emergency planning zones (EPZs). In addition, possible changes to the fuel and coolant may require new licensing approaches, as well as the need to develop new expertise within regulatory organisations.

While these challenges are all manageable, it would be important for SMR and AR developers to identify these issues early on and proactively address them with the relevant regulatory authorities.

George Borovas is head of Hunton Andrews Kurth’s nuclear practice and managing partner of the Tokyo office.

E-VENTS

We understand that workplace travel restrictions might have kiboshed your plans to join us in the heartland of commercial AI this year, but you don’t have to miss out!

You can sign up for the event livestream and it’s completely free to view or catch-up on demand. Whether you are a CxO looking to take your AI ambitions to the next level, or the Head of an R&D Center looking at the next big opportunity, we’ve got you covered.

Access our headline track – Digital Transformation Acceleration – in its entirety, including not-to-be-missed sessions like:
Democratizing Artificial Intelligence: How to Develop and Provide Access to Bias-Free AIWednesday, December 8, 2021 10:50 AM to 11:20 AM EST

Join Daniela Braga, CEO of Defined.ai, to get a better understanding of the importance of providing access to ethical AI development, and the impacts of bias-free AI on the future of the industry and our world. 
One Simple Question to Accelerate AI Deployments, Create Team Alignment and Eliminate Buzzword BingoWednesday, December 8, 2021 2:10 PM to 2:40 PM EST

Bjorn Austraat, Bjorn Austraat, SVP & Head of AI at Truist will introduce you to a jargon-free approach that helps focus stakeholders on what really matters – outcomes in the real world – but also ensures that AI deployment doesn’t skip important steps!
Developing a Set of AI Ethical Principles: One Company’s JourneyThursday, December 9, 2021 2:10 PM to 2:40 PM EST

Led by Josh Simons, Chief Technologist at VMware this session will take you along on one organization’s journey to develop a set of ethics principles  to evaluate how machine learning is adopted for both internal tools as well as future product offerings.
REGISTER NOW
 The virtual edition will also feature these renowned event technologists who will share their top tips for designing outstanding digital transformation strategies:Matt Maccaux, Global Field CTO – Ezmeral Software, Hewlett Packard EnterpriseKatica Roy, CEO, Pipeline Equity
Sid Raisoni, Vice President of Analytics, WWEDavid Joosten, President and CEO, Vodafone USStefan Britton, Director – Enterprise Innovation, ShutterstockYarrow Diamond, SVP – Innovation Technology Solutions, CNB BankNitin Mittal, Principal, Analytics & Cognitive Leader, Deloitte Consulting
 Remember the livestream is free to watch, simply register online and you’ll get access to view on demand.

BDB PITMANS PATHFINDER: RIGHT TO WORK AFTER COVID AND BREXIT

Have you registered for our latest  ‘Pathfinder’ webinar?

With job vacancies in many sectors being at an all-time high, the next webinar in our HR Pathfinder series will focus on right-to-work checks, how to do them correctly and the consequences if you don’t! Issues we will cover during the webinar will include: 

When to do right to work checks

How to conduct a compliant right to work check 

Checks for European nationals

Problem areasThe possible consequences of not conducting right-to-work checks properly

This will be an interactive session where you will be able to ask questions of our expert panel.We look forward to welcoming you.

If you would like to attend, please RSVP here or click the button on this mailing.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.Follow us @BDBPitmans #BuildingBetter

fennell.edward@yahoo.com

Please share the Legal Diary with friends and colleagues.

And when you are out and about this weekend remember that Covid is too!

Edward Fennell’s LEGAL DIARY

Friday 19 November 2021 Edition 81

SHORT THOUGT FOR THE WEEK

Will everyone be bowled out before before tea?

Pull Stumps on Lord’s?

The irony is palpable. In this wretched ‘watershed’ week when cricket and cricketers have been exposed to withering criticism for racism of all kinds (including, following last night’s revelations, anti-Semitism) the Asian Jewish Business Network (AJBN) and its hundreds of members supported by law firm Axiom DWFM decided to hold its flagship annual meeting at Lord’s,  ‘the most famous cricket ground in the world’.

Of course the organisers probably had little inkling what was about to hit the national Summer game. And perhaps they would have gone ahead with it in any case as a brave statement of reconciliation. But maybe next year go to Wembley?

The LegalDiarist

IN THIS WEEK’S EDITION

+ THE LEGAL DIARY OF THE WEEK

– Law Books Galore

No Rush for Windrush Compensation

– Got to Go Now

– Eyes on Ireland

-This Case is Worth Crowdfunding

+ LEGAL COMMENT OF THE WEEK on

REVELATIONS ABOUT RACISM by NICK LE RICHE

AMAZON’S ANNOUNCEMENT by SIMON de BOISE

THE HMI PROBATION REPORT by JABEER BUTTOBE. CEO

– NO JAB, NO JOB by MARIE HORNER

– GOOGLE’S FAILED APPEAL by ALINA POPESCU

+ CONTRIBUTED ARTICLES OF THE WEEK

– THE CHANCERY LANE PROJECT: How ‘Off-the-shelf ‘ contract clauses can ‘Keep alive 1.5’ by LEONIE BRABANT, Project Associate

– CLOGGING UP THE FAMILY COURTS: Should couples face financial penalties? asks HETTY GLEAVE, partner in the family law team at Fladgate

– ALL CHANGE IN THE CAYMAN ISLANDS by CHAI RIDGERS and NICK HOFFMAN of Harneys 

+ APPOINTMENTS OF THE WEEK at CADWALADER and EXCELLO

+ E-VENTS

Law Books Galore

There will be an impressive legal line-up next Thursday evening at at 2 Temple Place when the International Law Book Facility (ILBF) celebrates its fifteenth anniversary. Over that time the charity has distributed more than 72,000 legal textbooks to 200+ organisations in 54 countries including developing countries, for use by law students, teachers, lawyers and judges.

Happily presiding over the event will be the ILBF Patron – and founder – the  Rt Hon. The Lord Thomas of Cwmgiedd but guests will also enjoy the wit and wisdom of Rt Hon. The Lord Burnett of Maldon, Lord Chief Justice of England and Wales and the sagacity of Professor Richard Susskind OBE, the IT guru and adviser to major professional firms and to national governments. The event will also launch the ILBF’s inaugural essay competition for law students across the UK which asks them to think about how the practice of law will be transformed over the next decade. The fortunate winner will receive an internship at Brown Rudnick.

For more go to https://ilbf.org.uk/ and for a video go to https://brownrudnick.com/news_post/ilbf-celebrates-15-years-of-promoting-access-to-justice-and-legal-education/

Hold Ups in ‘Windrush’ Compensation

Not quite what we expected

If Yorkshire Cricket Club has become (for the time being at least) a simile for ‘racism’ so Windrush is shorthand for ‘justice denied’. That’s why the JUSTICE Working Group has now published its Reforming the Windrush Compensation Scheme report.

The trials and tribulations of the younger members of the Windrush generation who lacked the paperwork necessary to demonstrate their lawful immigration status have been well-documented. Appropriate compensation is now available – in theory – but the scheme has proved to be woefully difficult to access, lacks independence and suffers from delays and inconsistencies in decision-making. On top of that its awards fail to reflect claimants’ losses. In other words, you might say, it’s a typically British illusory solution to a genuine grievance.

Dechert is now backing JUSTICE’s report for reform which sets out 27 recommendations to improve the administrative and procedural aspects of the Scheme. “Through this Working Group and Dechert’s own pro bono casework supporting Windrush claimants, in collaboration with the Joint Council for the Welfare of Immigrants and six other law firms, we have seen first-hand the challenges faced by individuals seeking redress,” says Tim Bowden, Dechert partner and member of the JUSTICE Working Group. “This report makes practical proposals which are readily implementable, and we hope it will lead to significant changes in the scheme to ensure that claimants are fully and fairly compensated.”

To read the Reforming the Windrush Compensation Scheme report go to

Got to Go Now

Covid turned the world upside down and we are still trying to work out the long term consequences. Indeed, maybe like the Black Death in the 14th century, it may take decades for the full consequences to work their way through.

What is clear now, however, according to a survey of lawyers undertaken by Thackray Williams, is that the pandemic has been detrimental to individual careers prompting a majority of lawyers to consider looking for a new role.

The discordant feature is that, notwithstanding their dissatisfaction, 76% of law firm staff said they were well treated by their employers during the pandemic and 30% felt more positive about their employer than before Covid. But that did not compensate for their view that it is now time to move on. In short the past 18 months has been a major disruptor and a catalyst for unrest

.Among the most common goals are a better work/life balance (69%) and more opportunities for promotion and progression (48%). (Oh and, of course, more money). But poor internal communication was cited as a major cause for unhappiness along with poor technology (35%) and inadequate systems for managing mental health and wellbeing (34%). “In an era where lawfirm culture is just as important as pay, the results of this survey present a timely reminder for firms to keep communication and employee wellbeing at the top of their agenda.” said Sean Sanders, managing partner of Thackray Williams.

Financial remuneration always ranks highly for candidates, but flexible working is no longer a nice to have – it is essential,” added Leilani Reader of LR Legal whoch co-operated on the survey. “Most legal professionals will not even consider a law firm if they don’t offer flexibility or aren’t actively investing in their culture.”

Eyes on Ireland

Irish eyes are certainly smiling now

With the EU’s Vice-President Maroš Šefčovič meeting Lord Frost today this could be another (correction, yet another) critical moment in trying to unravel the knotty Northern Ireland Protocol.

Meanwhile south of the border things are going pretty well as laid out in the latest edition of Dominic Carman’s REPORTS LEGAL which is entirely dedicated to Ireland.

With Facebook, Microsoft and Google all heavily invested in the Republic and Amazon also due to open a high tech hub the good times are flowing for Irish law firms in what is becoming a heated-up market. The local rankings list is still dominated by Ireland’s own version of the Magic Circle – Matheson, A&L Goodbody, Arthur Cox , McCann Fitzgerald, and Mason Hayes & Curran but London names now also feature in the Top 20 – notably Eversheds Sutherland, Freshfields, DAC Beachcroft and Pinsent Masons.

Ireland is becoming such a hugely important jurisdiction, particularly for overseas expansion of internationally focused corporations,” says Alan Connell of Eversheds in Dublin. “There’s a significant challenge for the status quo in the Irish legal market because the larger firms have relied heavily on international referrals in order to operate at the level they have been doing for many years. The influx of international firms will inevitably mean that the quantum and level of those international referrals will reduce somewhat. As a result, something has to change. Whether that’s more alliances, tie ups, or mergers in that space, I definitely see more consolidation in the market. It’s becoming somewhat inevitable.”

Read more at https://reportslegal.com/ireland-report/

This Case is Worth Crowdfunding

Simon Hawkins and his wife, Penny Ericson were victims of the notorious Interest Rate Hedging Product (IRHP) which was forced on to them by the HBOS team in Reading in the late 2000s. This policy proved to be disastrous and led to the couple losing what would otherwise have been a very successful business. As Hawkins puts it,  “What I didn’t know at the time was that I was being deceived and coerced into taking out a totally unnecessary and unsuitable product solely so they could earn £120,000+”

Hawkins and Ericson are now seeking justice and compensation from   Lloyds (LBG) which took over HBOS.  “In 2019 –11 years after the bank ruined me – and, following a review of the handling of my claim, the FCA informed me that it had not been reviewed correctly and that Lloyds’ behaviour “did not meet the standards expected of them,” explains Hawkins.

The couple are now seeking crowdfunding to pursue their claim. The full story is available at https://www.crowdfunder.co.uk/truth-for-justice

If you feel any embarrassment at how ‘big law’ and ‘big finance’ bully the little people it is worth looking at – and probably supporting.

TOPIC: Revelations about racism in cricket and at Yorkshire County Cricket Club in particular.

Nick Le Riche  Partner at BDB Pitmans comments:

 “Azeem Rafiq’s powerful evidence to the Department of Culture Media and Sport’s committee underlines the huge emotional impact on an individual and their family where they feel they have been subjected to race discrimination. 

 “Whilst it is not right at this point to pass judgement on how Yorkshire reacted in this matter, it is very clear that it is vital for all employers, particularly in this day and age, not to make assumptions when employees come forward with allegations of discrimination and harassment ; not to rely on “culture” or “banter” as an excuse, and for them to be prepared to investigate complaints independently and fairly without any pre-judgment.

 “Given the statements made by Rafiq and Yorkshire chairman Roger Hutton to the committee it does appear surprising that no disciplinary action was taken against Yorkshire staff since the investigation report found that  Rafiq had been subjected to racism.  While training and education can be part of the required improvements, it is vital for organisations to show that racism isn’t tolerated and disciplinary action, even if this doesn’t go as far as sacking individuals, makes a very important statement in this respect.”

TOPIC: Amazon’s announcement that it will stop accepting payments made using Visa credit cards issued in the United Kingdom from the New Year.

 SIMON de BOISE, Senior Associate at Collyer Bristow LLP, comments:

 “It remains to be seen whether Amazon will make good on its threat, or whether there is a deal to be done, but either way it is a very significant development in the payments sector.

 “The announcement that Amazon will stop accepting payments made by Visa credit cards demonstrates how much the payments sector has matured in recent years. Consumers have far more payment options available to them now, following the rise of the fintechs, e-money providers and e-wallets etc, and consumer confidence in these products has grown substantially.

 “Such a move against one of the card schemes would have been unthinkable even a few years ago, but retailers are now starting to benefit from the proliferation in the sector and so may feel that they can move away from the traditional players without damaging their businesses.”

TOPIC: The HMI Probation report on the criminal justice journey for people with mental health needs

JABEER BUTT OBE. CEO of the Race Equality Foundation, comments: 

“This report paints a grim picture of a criminal justice system that is failing people with mental health needs. 

“It’s worrying enough that people from Black, Asian and minority ethnic groups are disproportionately represented in both the criminal justice system and in mental health services. But this report also highlights that despite the work done by the Race Equality Foundation to identify some services available to address the mental health needs of ethnic minority people, there is scarcely any evidence that probation leaders are reaching out to source or access specialist services. 

“This is perpetuating a cycle in which ethnic minority communities continue to be denied the tailored support that would prevent them from entering the criminal justice system or needing to use mental health services in the first place.”

TOPIC: The legality of employers adopting a ‘No jab, no job’ policy.

MARIE HORNER, partner in employment law at Langleys Solicitors comments:

Commentary on the situation is plentiful at present but sometimes misleading. Employers might be forgiven for believing that they are entitled to simply dismiss those members of staff who are unvaccinated without further ado, or to place them on unpaid leave whilst a decision is taken. However, such approaches would almost certainly be misguided.

 “Employers must take care to factor in the individual’s contractual terms, and to ensure that all alternative options to dismissal are exhausted. Contracts containing specific terms allowing an employee to be placed on unpaid leave pending a decision are also likely to be the exception to the norm. Care must be taken in relation to each individual employee’s reasons for not having the vaccination, with one eye on, for example, potential discrimination issues.

 “Finally, if the decision is still to dismiss, having considered all factors, employers must ensure that any termination is effected in accordance with the provisions of the employment contract.”

TOPIC: Google’s failed appeal against a €2.42bn EU competition fine over its shopping service. ALINA POPESCU of MPR Partners, comments:

 “In last week’s decision, the General Court resorts to the concept of “self-preferencing” as a theory of harm in its own right under EU competition law. The General Court agreed with the European Commission that Google had abused its dominant position on the general searches market by favouring its own specialised search services (comparison shopping services). 

“Self-preferencing is a target for the EU’s Digital Markets Act, which prohibits this practice when perpetrated by companies deemed as “gatekeepers”. Whilst the Digital Markets Act is still undergoing enactment, the theory of harm used by the European Commission, as vetted by the General Court, as well as the existing climate surrounding big tech and the conclusions of the various market studies commissioned in relation to the development of digital markets legislation will likely serve as a deterrent to big tech against similar practices.”

CONTRIBUTED ARTICLES OF THE WEEK

THE CHANCERY LANE PROJECT: How ‘Off-the-shelf ‘ contract clauses can ‘Keep alive 1.5’

by LEONIE BRABANT, Project Associate

Lawyers are not your obvious choice of people to save the planet. Post COP26 and the compromises that were made to secure the Glasgow Climate Pact, it is clear that if the 1.5 degrees Paris Agreement goal is to be kept alive, private and public sector organisations will need to take significant action immediately to turn their net zero pledges to action. This is where lawyers come in.

Contracts are a much quicker way to implement climate goals than waiting for legislation and regulation to be made and to take effect. Lawyers also have precisely the skills that are needed to help their clients manage the climate risks that are increasing in number and intensity around the world.

The Chancery Lane Project (TCLP) is a collaborative pro bono initiative that provides over 100 free climate clauses to help lawyers and organisations address climate risks and impacts and achieve their net zero targets. The clauses cover multiple practice areas and sectors including commercial supply chains, corporate governance, finance, real estate and insurance. TCLP have recently published their Net Zero Toolkit, which provides a suite of resources to help legal professionals understand net zero concepts and how to incorporate them into their contracts.

Rather than locking in high-carbon emissions and perpetuating business-as-usual, lawyers can add clauses to contracts to address climate risk and impacts and ensure that business operations are aligned with net zero targets.

So if you are worried about the pace of climate action, be part of the solution and start embedding the clauses in your contracts today.

https://chancerylaneproject.org/

CLOGGING UP THE FAMILY COURTS: Should couples face financial penalties? asks HETTY GLEAVE, partner in the family law team at Fladgate

 

Hetty Gleave

Government plans to penalise parents for fighting over their children in court is welcome news to the overstretched court system.  However, is it fair?

Mediation has long been encouraged by the family lawyers as a cost-effective and less adversarial way of resolving children disputes.  Warring parents can explore their differences, using a mediator who will keep the conversation focussed and constructive. There seems little justification for using valuable court time and resources to decide, often mundane issues such as amount of time the children spend with each parent, when there is a backlog of more serious care and child abuse cases.

However, many parents adapting to life after separation find it difficult to assume a new co-parenting role and to prioritise their children’s needs above their own feelings. Parents should consider the impact on their children of the physical, psychological and emotional consequences of being caught in the crossfire. Sometimes however, only a judge imposed decision will finalise matters, especially if it carries sanctions for non-compliance.  

Costs sanctions may also be justified in cases where a parent uses proceedings as a threat, knowing that the other parent is unable to fund the proceedings or deal with them emotionally, in the hope they will concede at an early stage.  If matters could have been agreed with a more realistic or reasonable approach, and there are no serious child welfare issues at stake, is it so wrong that the court should retain discretion to decide whether parents should also pay for their day in court?  The public purse must be protected and Courts may soon have the power to read just both the financial and the emotional balance if they feel that the circumstances are right to do so.

ALL CHANGE IN THE CAYMAN ISLANDS

The changes proposed in the Cayman Islands’ Companies (Amendment) Bill 2021 are likely to have significant consequences for practitioners in the UK explains CHAI RIDGERS, Head of Restructuring, and NICK HOFFMAN, Cayman Islands Managing Partner of Harneys

 The Cayman Islands government has published a Bill which, if passed, will provide a company breathing space to restructure its debts through a refined scheme of arrangement process. The scheme will be protected by an automatic extraterritorial moratorium (viz. unsecured creditors) and a Court appointed supervisor (a Restructuring Officer (RO)). With this, it is hoped the new process will qualify as a “collective insolvency proceeding” for recognition and assistance purposes by Model Law countries and similar jurisdictions.

The refined scheme process will be available to both Cayman Islands and foreign debtors (with qualifications) and will, so long as “efficacy” is likely, compromise both Cayman Islands and foreign law governed debt. This will maintain and improve the necessary ecosystem for the Cayman Islands to continue as a global restructuring hub.

For English law debt, a Cayman Islands scheme can restructure foreign debt if the Court can be persuaded that it will be given “efficacy” in that foreign jurisdiction either by recognition or the absence of dissentient creditors. The Cayman Islands will therefore continue to follow the “rule in Gibbs”. In view of Brexit, England may no longer be a gateway for European recognition of Cayman Islands Court restructurings, and further recognition applications may need to be made on the continent.

The RO regime has been designed to be used alongside English Court processes. Furthermore, English insolvency practitioners are permitted to be appointed together with a Cayman Islands RO. English legal practitioners are likely to be particularly interested in their role in making applications to “recognise and assist” restructurings within the Cayman Islands courts. A test case is needed, however, to establish the boundaries of any assistance that the English Court will grant. It is hoped that the Grand Court of the Cayman Islands and the English Courts will work together to compromise debts and rescue companies within the spirit of the new regime.

APPOINTMENTS OF THE WEEK

Cadwalader, Wickersham & Taft LLP

Michael R. Bergmann is joining Cadwalader, Wickersham & Taft LLP as a partner in the firm’s Corporate Group and will be based in Washington, D.C.

Formerly with Skadden, where he was a member of the firm’s Executive Compensation and Benefits practice, Bergmann counsels clients on executive compensation, employee benefits and ERISA matters. He devotes a significant portion of his practice to advising major public corporations and private companies on executive compensation and employee benefit arrangements in the context of mergers and acquisitions and other transformative business transactions.

“Michael is a highly experienced and highly regarded executive compensation lawyer,” said Cadwalader managing partner Pat Quinn. “We know he will be an important advisor to our clients and an outstanding leader of our executive compensation practice.”

Excello Law

Not so much a single individual but a whole team from specialist property litigation firm Rex Cowell Solicitors, led by Rex Cowell himself and assisted by Robert McLellan, has moved its practice to national consultancy law firm Excello Law.

The Rex Cowell team, which is based in Kent, specialises in all types of landlord and tenant disputes in commercial and residential properties, as well as advising on land disputes such as easements and boundaries.

“We have successfully transitioned seven firms to Excello Law in recent years and have developed a comprehensive and supportive programme to ensure a seamless and supportive process,” said Joanne Losty, recruitment director at Excello Law. “We are delighted to welcome the Rex Cowell team and we look forward to working with other similar specialist practices who are looking to join a supportive and collaborative firm.”

E-VENTS

THE 2021 HEILBRON LECTURE
Taking place online next Tuesday 23 November 6:30-7:45pm online.
The 2021 Heilbron Lecture, entitled “Learning Our Time’s Fables,” will be delivered by Professor Sarah Green, Commercial and Common Law Commissioner at the Law Commission of England and Wales, with an introduction from Lady Hale.

Professor Green has written books and articles on a variety of issues including virtual currencies, blockchain, issues surrounding intermediated securities, smart contracts, sale of goods law as applicable to digitised assets, negligence and wage theft. 
‘Learning Our Time’s Fables’ will explore certain paradoxes of the pandemic, including how we are more connected and yet more isolated than before. 
Sarah will explain how work patterns and their organisation are going to change for the long term and the importance that a diverse range of women’s voices be central to shaping those new patterns.

Why women? Because they have more experience in aggregate of trying to achieve a balance and also because being in the “home” environment is generally more charged for women than it is for men.

Also explored in this thought-provoking lecture will be the topics of what the law can do in relation to flexible working, the embracing of technology for more effective working, as well as the following questions:
Is the law enough, or does there still need to be a cultural shift? Does the practice of law suffer particularly from the reduction in physical presence?
Register
CADWALADER Building Better Borrowers: Bankruptcy-Remote Basics 
In our next installment, Financial Restructuring special counsel Kathryn Borgeson presents a podcast on three of the most important building blocks for a bankruptcy-remote borrower:Special Purpose ProvisionsIndependent DirectorsThe Bad Acts Guaranty


Listen

Having trouble downloading? Try listening here.
 
 
 

If you have enjoyed this edition of the LEGAL DIARY please relay on to friends and colleagues.

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Friday 12 November 2021 Edition 80

SHORT THOUGHT FOR THE WEEK

Members of the Jury/House’ (delete as appropriate)

Note to Sir Geoffrey: Ring any bells?

Readers of a certain age will recall the advertising campaign run by the Victoria & Albert museum which pronounced ‘Great Cafe (with rather nice museum attached)’. Might the same be said of Sir Geoffrey Cox QC?

‘Superb barrister (with occasional Parliamentary appearances)’ – should that not be his description?’

Cox is clearly a man of great talents. We saw that when he was – albeit briefly – Attorney General under Theresa May. But, really, are those talents not wasted if he is mere lobby fodder? After all, plenty of other people could be excellent General Practice MPs without his oratorical skills or presence before an audience. No wonder he decided to direct his time elsewhere. But it comes at a price.

A powerful letter in The Times yesterday by Ronald Thwaites QC observed of barristers who continued to practice at the Bar while also Members of the House of Commons that, “Often their contribution to the court proceedings were nugatory.” In other words, full attention is required to make an impact on a case.

The same seems to apply in reverse. Cox might still be popular with his constituents but his contribution to Parliamentary affairs appears, by all accounts, to have been ‘nugatory’ in recent months. Maybe the time has come to recognise that living a double life as an MP and a practising lawyer is less than the sum of the parts.

The LegalDiarist

In this Week’s Edition

+ LEGAL DIARY OF THE WEEK

– Careful Where You Go, say Peters & Peters

– New Flight Command Announced for Bird & Bird

– My Tax or Yours? Asks Burges Salmon

Inspiring Story from ‘Next 100 Years’

+CONTRIBUTED ARTICLES

– LLOYD v GOOGLE Cristina Crețu, Alexander Dittel, Vikram Kumar, Caroline Harbord,

WATER POLLUTION: THE CHALLENGE Peter McHugh

THE PENSIONS REGULATOR ENFORCEMENT POLICIES CONSULTATION: FURTHER CLARITY FOR EMPLOYERS AND TRUSTEES Rhiannon Barnsley,

– APPOINTMENTS OF THE WEEK AT KENNEDYS and HORWICH FARRELLY

E-VENTS

Careful Where You Go, say Peters & Peters

These range from exploitation of financial crime to Sino-US geopolitics, sanctions, mutual legal assistance, extradition, asset tracing, and ‘jurisdiction in a fractious world’.

As Peters & Peters Senior Partner Michael O’Kane comments in his introduction, “Geopolitical instability and regional realignments have always by definition had a profound impact on the shape and intensity of business and personal risk. The last two years are certainly no exception.” So well worth a read.

New Flight Command Announced for Bird & Bird

David Kerr and his successor in 2022 – Spot the difference?

Gradually the last of the titans of the 1990s are leaving the stage with the news that David Kerr will be definitely quitting his role as CEO of Bird & Bird by Easter 2022.

In common with Peter Martyr at Norton Rose Fulbright, Kerr notched up enormous achievements by transforming a previously modest firm into a global power. In Kerr’s case that meant taking a small operation with a turnover of €23m, 70 lawyers and three offices and turning it into a €455m business with 1400 lawyers in 30 offices in a period of just over two decades. By contrast many other firms of that size would have been folded into other, bigger outfits and their names entirely forgotten by now.

Kerr’s rise to the top of Bird & Bird came about partly as a result of breaking the firm’s lock-step system and the emergence of a group of ‘Young Turks’ in the partnership in the 1990s. His key move was to become the Businesses Development Partner and arguing for international expansion. “I warned that if we didn’t act on this fairly soon then in five years the firm would no longer exist,” he recalled in the firm’s history.

It was a risky move but turned out to be wonderfully successful – based largely on Kerr’s capacity for relationship building. However, as with all long-standing inspirational leaders, there will be a big question over whether his successor can maintain momentum and the character of the firm. That mantle will soon fall on Christian Bartsch (pictured above on right) currently serving as co-head of the firm’s international Financial Services sector group and Chair of the firm’s Risk Committee. Kerr will be a big act to follow. Has Bartsch got the heft to do the job?

My Tax or Yours?

Is that the Thames down there? I sometimes can’t remember

Launched earlier this week by Burges Salmon – the perfect Xmas gift for anyone who can’t make up his or her mind whether they are coming or going.

 ResiCheck is  the law firm’s ‘innovative tax App’ that helps people work out whether or not they have tax obligations in the UK.

Targetted at those who might be spending rather a lot of time, for example, in the British Virgin Islands, the App is designed to answer the questions posed by the UK’s Statutory Residence Test.

Users complete a simple questionnaire and receive an instant indication of likely residence status, along with a more detailed explanation. “The App can also be used to plan future residency and keep track of UK visits, with this information emailed directly to the user,” the law firm explains. Every MP-cum-Lawyer should have one.

Inspiring Story

Congratulations to Lynette Wieland, a social mobility ambassador for The Law Society, who has won the ‘Champion of the Year’ award at this year’s Next 100 Years Inspirational Women in Law Awards which celebrate the progress of women in the law since the Sex Disqualification (Removal) Act 1919,

Lynette Wieland

Wieland – who is a health and social care advisory and inquests lawyer at Browne Jacobson – owes her success to her work with a myriad of organisations externally to promote diversity and social mobility. Meanwhile internally she has been central to steering the firm’s diversity and inclusion agenda over the last 12 months with a key role on the firm’s Disability Network and the D&I group.

Wieland herself has dyslexia, dyscalculia and Meares-Irlen Syndrome (a visual stress condition which can lead to difficulties around reading and spatial awareness). Having left school without A Levels she took on an apprenticeship, working at a vocational training provider. She then took advantage of the Law Society’s Diversity Access Scheme (DAS) which provided both LPC funding and work experience opportunities which led to her joining Browne Jacobson and subsequently qualifying as a lawyer.

All goes to show that with the right structures and support the law can be made accessible as a career to ambitious people who, for whatever reason, have missed out on the conventional entry path. Other firms should try it.

CONTRIBUTED ARTICLES

THE LLOYD V GOOGLE SUPREME COURT JUDGMENT

Cristina Crețu, Senior Privacy & Technology Consultant at MPR Partners SAYS

This week’s judgment in Lloyd versus Google LLC sets an interesting (and in our view correct) precedent regarding class actions for damages arising from infringements of the data protection rights. The most important takeaway in our view is that, in order for an action for damages to be successful, an interested party must prove that there is a contravention by a data controller of any of the requirements of the data protection legislation and that such contravention caused damages to that individual. Thus, for future reference, any similar action for damages should follow a two-stage procedure: (i) establishing whether the data controller was in breach of the data protection legislation and only afterwards (ii) claiming compensation.


“The second stage will require an opt-in mechanism to be observed, entailing on one side the need to obtain sufficient information from each individual to support their claim with regards to the loss suffered and to determine if the individual is eligible to be part of the group action and on the other side for the individual to opt in regarding such action. It is clear from today’s judgement that general damages cannot “be awarded on a uniform per capita basis to each member of the represented class without the need to prove any facts particular to that individual”, as Mr. Lloyd had requested. Whilst class actions suffered a setback today, if interested parties are willing to learn some lessons from this case, the future of actions related to compensation for data protection breaches in the UK does not have to be bleak.


Alexander Dittel, Partner at Wedlake Bell SAYS

The Supreme Court confirmed there is no automatic right to compensation without proof of cause. While an individual claim with such proof might have succeeded, litigation funders will be forced to rethink strategy for representative data protection litigation.

As framed, the claim was inconsistent with the compensatory principle. It is not possible to claim a uniform sum for each of the different types of iPhone users who might have been affected in very different ways.

The judgment will not stop vexatious claims for compensation for trivial breaches of data protection law which often cite Lloyd v Google as justification. However, the concept of “loss of control” will no longer serve as a sword. According to the Supreme Court, none of the requirements of the 1998 act are predicated on “control” over personal data by the data subject.  So, while the case does not offer an absolute defence, it will come as a relief to many organisations and might provide ammunition to successfully fight vexatious claims, something that is currently reserved for the larger well-resourced organisations.

Big technology companies are not off the hook. This action is over but the growing privacy community is likely planning its next attack. The Supreme Court explained that the action could have been used to establish Google’s breach of the law which would then help individual claimants to seek specific damages.

Vikram Kumar, Principal, Cornerstone Research SAYS

According to the Supreme Court, claimants seeking to bring opt-out representative actions in privacy related matters in the UK may not seek compensation for intangible “loss of control” of personal data as a result of any breach of data protection laws. Instead, they must demonstrate clear evidence of material damage or distress.

The Court also notes that representative actions are not suitable for determining damages if individual assessment of damages is required. The judgment has made it harder for claimants to bring opt-out representative actions in privacy related matters in the UK. In a recent judgment (Merricks v Mastercard) the Supreme Court lowered the bar significantly for claimants bringing representative opt-out class actions in competition matters.

Caroline Harbord, Senior Associate at Forsters SAYS

Large data controllers will no doubt be taking a massive sigh of relief. The judgment narrows the scope for group claims arising from data breaches where no material damage has been caused by the breach. The court held that to sustain a claim under s.13 of the DPA, the relevant breach must have caused material financial damage or distress. A claim cannot be sustained simply because of the fact of the breach alone. Had the Supreme Court decided this point the other way, and allowed claims on the basis of the data breach alone, irrespective of damage caused, this would have potentially massively increased the exposure of data controllers to large scale group actions, where, for example, a data controller accidentally sends a communication to the wrong mailing list.

The practical effect of the judgment means the Supreme Court has deprived the affected class (who have had their data stolen and commercialised by Google) of an effective remedy for this wrong, and puts the English courts at odds with the judicial approach taken by the US, Canadian and Australian courts. While the Supreme Court held that it would have been open to Mr Lloyd to invite the court to decide the primary issue of liability in representative proceedings, with individual follow-on claims to assess damages, the Supreme Court acknowledged that this would not be a cost effective, and therefore viable, approach.

It is surprising that the Supreme Court overturned the Court of Appeal’s decision to grant the permission, given that the Competition Appeal Tribunal has the ability to allow large scale opt-out group claims to proceed, even where primary liability has not been established (see Le Patourel v BT). Had Mr Lloyd’s claim involved an element of anti-competitive behaviour on the part of Google, it is possible that the outcome would have been quite different. The judgment will also represent a major setback for other contemplated representative actions including the action against Oracle and Salesforce relating to the collection of data for ad-tracking via third-party cookies, which had been stayed pending the Supreme Court’s judgment. For these reasons, it is hard not to feel the Supreme Court has been unduly conservative in its approach, and shied away from an opportunity to impose a new check and balance on large scale data controllers.”

WATER POLLUTION: THE CHALLENGE

Peter McHugh, Partner, Clarke Willmott LLP

Coming to a river or beach near you Image courtesy of Britannica

The Environmental Bill currently going through the House of Lords places a duty on government to publish a plan by September 2022 to reduce sewerage discharge from storm overflows.

Having failed to head off defeat last month, after peers voted overwhelmingly in favour of an amendment to the Environmental Bill, the government should also be placing a duty on water firms to stop dumping raw sewage into rivers and seas.

Last year the water sector dumped raw sewage into rivers and seas at least 400,000 times for a minimum of 3.1 million hours, according to figures submitted to the Environment Agency – though the actual figures are widely believed to be much higher.

The Surfers Against Sewage 2020 Water Quality Report points out that in 2019/2020, 6% of “swimmable days” were lost due to sewerage discharge into bathing waters in England &Wales. Further, Southern Water, a company who have been in the press as of late, failed to issue the majority of their sewerage spill notifications during the 2020 bathing season. The latest research shows that health risks posed to swimmers remain the same as they were in the 1990s.

As well as sewage, every year there are about 3,000 pollution incidents involving oil and fuels in England and Wales. Oil spillages affect water quality in a number of ways, including making drinking water unsafe to drink and destroying wildlife and the eco systems that sustain them. Oil spills also reduce oxygen supplies within the water environment. 

We also continue to fail to address the issue of plastics. We know that long term use and exposure of plastics to high temperatures can lead to leaching of toxic chemical constituents into food, drink and water. Microplastics entering the human body via direct exposures through ingestion or inhalation can lead to an array of health impacts, including inflammation, genotoxicity linked to cancer and cardiovascular disease.   

We have a raft of legislation designed to protect just England and Wales, each act and regulation has a role and a good intention to protect us, whether it is to regulate water quality or to prevent water pollution. Much of this is now covered by the Environmental Permitting Regulations, the intention being to regulate water and sewage industries. Other parts are to introduce a new framework for managing the many demands placed on the sea, improving marine conservation and opening up access for the public to the English coast.

With such a raft of legislation available to a relatively small area such as England and Wales, which is failing to enforce and stop water companies from routinely discharging raw sewerage into rivers, then what chance do the smaller poorer counties of the world have to protect their water supply? The Office for Environmental Protection is being asked to investigate why water companies had been able to continually fail to meet duties placed on them by law to treat sewerage.

Despite the legal framework, we need to stop the water companies discharging sewerage into rivers and coastal waters. The spills last year of 400,000 times, via a combined sewer overflow, lasted for 3.1million hours. Yet the overflows are supposed to be used only in extreme weather to relieve pressure in the sewerage system. 

Let us hope the Environmental Bill going through the House of Lords at the moment is properly enforced and not just another piece of legislation for the water companies to find ways around.

THE PENSIONS REGULATOR ENFORCEMENT POLICIES CONSULTATION: FURTHER CLARITY FOR EMPLOYERS AND TRUSTEES explains Rhiannon Barnsley, Associate, Arc Pensions Law

The introduction of The Pension Schemes Act 2021 has prompted much debate about the Pensions Regulator’s (TPR) new powers to issue criminal proceedings and hefty fines of up to £1m for certain conduct relating to defined benefit schemes. Many in the industry have been concerned about how these powers will be used and, in particular, what route TPR will take when it has more than one enforcement option available.

The consultation notes that TPR may use a combination of measures, including statutory notices, financial penalties and criminal proceedings.Statutory notices will aim to secure an action, outcome or remedy, while fines and criminal proceedings are to punish more serious behavior.

One thing that is clear from the consultation is that criminal proceedings will generally be issued instead of statutory notices or financial penalties if there are aggravating factors such as previous breaches or dishonesty or for serious cases of deliberate and wilful conduct. This draft policy will be reassuring to those concerned that criminal proceedings were going to be issued too readily.

The consultation also sets out TPR’s policy on financial penalties. In short, TPR will look at two things, (i) the “culpability” of those involved and (ii) the level of harm to the scheme and saver outcomes. If culpability and harm to the scheme are both judged to be low, fines are unlikely to exceed £400,000. However, if there is high harm and high culpability, in the most serious cases, TPR may issues fines of up to £1m.

It’s important to note that these policies have not yet been finalised and are currently in draft form. The consultation will be open until 22 December. Feedback will be considered before the final policy is published in early 2022.

APPOINTMENTS OF THE WEEK

Antonio Acuña, a former government advisor and one of the country’s leading data specialists, is joining Kennedys in a specially created role to harmonise reporting analytics and insight, skills and literacy, governance, curation and asset management, engineering, innovation, and product development. So quite a job!

Acuña led the landmark launch of data.gov.uk, the first website dedicated to helping people find and use open government data, which was widely recognised as the benchmark for data portals worldwide. He also designed and delivered Defra’s award-winning ‘Noise Mapping England’ project, which used interactive maps to show the impact from road and rail networks in a bid to tackle noise pollution.

“I am passionate about change, particularly when it’s driven by data, and I believe Kennedys has a unique opportunity to transform the way legal services are delivered,” said Acuña. “It’s a competitive industry and it’s not enough to simply modify or adapt anymore. Businesses must be bold, to reimagine and embrace new ways of working, and Kennedys is doing just that. I’m really excited to be joining now and being a part of that culture change, which I know will deliver huge benefits to everyone.”

Andrew Leaitherland, the former Chief Executive Officer at DWF has been appointed as a strategic advisor to Horwich Farrelly, legal advisers to the insurance and commercial sectors.

Andrew Leaitherland

Having been Managing Partner and then CEO of DWF Leaitherland transformed the firm from a modest outfit based in the North West of England firm into a 4,300-strong international firm with offices in 33 locations around the world. DWF Group plc was floated on the main market of the London Stock Exchange in March 2019.

Commenting on the appointment Horwich Farrelly CEO and Managing Partner, Ronan McCann said, “Even without the current crisis, the legal market is changing faster than ever with increasing pressures on improving efficiencies without compromising quality. Andrew was hugely successful at growing DWF from a £29m turnover business to over £330m and its that experience which we are very interested on as we enter our own growth phase.  We are looking forward to working with him on our own ambitious plans.”

EVENTS

CADWALADER


Building Better Borrowers – Bankruptcy-Remote Basics In our next installment available on Wednesday, November 17th. Financial Restructuring special counsel Kathryn Borgeson will discuss three of the most important building blocks for a bankruptcy-remote borrower:
Special Purpose Provisions
Independent Directors
The Bad Acts Guaranty     
In Case You Missed It!Global Litigation partner Ellen Holloman presents a podcast, “Court Impact on Securitization,” which discusses two of the most interesting lawsuits impacting the securitization industry today, relating to the National Collegiate Student Loan Trusts.Subscribe to our podcast series on Spotify to never miss an episode.     Listen     

CMS

 CMS’s Talking to #LeadHers podcast now available

The Talking to #LeadHers series features members of the CMS equIP start-up accelerator programme and showcases the work of inspirational female founders – providing an in-depth view of the entrepreneurial journey and the developments taking place across their industries. 

In the latest episode CMS partner Katie Nagy de Nagybaczon is joined by Rosie Wainwright, Regional Manager at UK-wide social mobility charity Career Ready, who shares her experience of mentoring and discusses how mentoring programmes transform the lives of young adults and make a lasting difference in their communities. This episode also incorporates insights and advice from previous podcast guests, including CMS equIP founders and women in leadership roles. The episode is available here and on all the usual podcast platforms.

This episode complements the recently launched Career Ready mentoring programme at CMS, in which everyone at CMS (including CMS fee-earners, business support, trainees and partners) is being encouraged to sign up as a mentor. Career Ready has a network of over 3,300 volunteers across the UK and those interested in signing up as a mentor can get involved via their website: https://careerready.org.uk/volunteers/

CMS has a long-established relationship with Career Ready and the firm has run masterclasses and skills webinars for the young people on their programme over a number of years.

fennell.edward@yahoo.com

Have a good week-end!

Edward Fennell’s LEGAL DIARY

Friday 5 November 2021 Edition 79 Guy Fawkes Issue

Diary news, commentary, insights, appointments and

SHORT THOUGHT FOR THE WEEK

Lots of fizz and bang – But what happens next? Call in the law.

COP26: LOTS OF FIREWORKS BUT WHAT LASTS FOR ‘SUSTAINABLE DEVELOPMENT GOALS’?

The declaration to assembled bankers, lawyers and corporate apparatchiks by COP26 Supremo Alok Sharma that “You are all ‘Swampys now” threw a banger into the conference and caused quite a stir – not least within the family of the tree-climbing environmental protester himself who denounced the whole shebang as a prime example of green-washing.

Blind prejudice or plain realism?

Only time will tell but the sincerity with which a succession of speakers addressed the hybrid event Role of Law in Climate Actionorganised earlier this week by Advocates for International Development (A4ID) in partnership with CMS and Bloomberg suggested that members of the ‘business elite’ are now rolling their sleeves up and prepared to get on with the real work of reducing pollution.

For a start Stephen Millar, Managing Partner of CMS, announced right at the start that he, for one, hated tokenism. “Tokenism sucks,” he rasped.

So that means it is now down to practicalities. And to coincide with COP26 A4ID launched its new publication SDG13 Legal Guide to Climate Action as a practical guide to what lawyers should now be doing. As Yasmin Batliwala, the Chief Executive of A4ID, said, “The guide is a unique resource providing a fundamental analysis of the role that law can play in the achievement of the SDGs.”

CMS’s Olivia Jamison agreed. “Raising awareness of the SDGs is enormously important,” she said. “As lawyers we’re in an amazing position to contribute.”

Let’s hope that after the COP26 fireworks the law perseveres to get the SDG job done.

The LegalDiarist

For more go to: https://www.a4id.org/sdg/climate-action/

In this week’s edition

Short thought of the Week:

+ THE LEGAL DIARY

And the winner is – the Bar’s Pro Bono Awards!

Let’s Pal Up Over Pro Bono

– Homeward Bound for Farrer & Co.

Kennedys Offers Extra Day for Mental Health

The Language of Law

+ LEGAL COMMENTARY OF THE WEEK

– And Finally – COP26 again

THE RIGHTS AND WRONGS OF DISCIPLINARY PROCESSES by Rebecca Thornley-Gibson

+ LEGAL ANALYSIS OF THE WEEK

THE REVIEW OF THE LASTING POWER OF ATTORNEY SYSTEM: Who is it supposed to support? by Abigail Howson

+ LEADING LAW FIRMS Retaining top talentby Iain Blatherwick

APPOINTMENTS OF THE WEEK at Wedlake Bell and Peters & Peters

And the winner is – the Bar’s Pro Bono Awards

Advocate, the Bar’s national charity, marked its 25th anniversary generously this week with the announcement of its awards for members of the Bar who have done exceptional pro bono work over the past year. There had been 46 nominations across nine categories, including young and junior barristers, QCs, Chambers, clerks and a brand-new category – the John Collins Pro Bono Excellence Award – so competition was tight.

Among the winners was Brick Court’s Sarah Abram who picked up Junior Pro Bono Barrister of the Year for being the only barrister willing to travel to Luxembourg in the pandemic to represent an environmental NGO at a hearing, ‘The outcome of which had a profound effect on environmental campaigners’ ability to challenge highly polluting infrastructure projects’. So quite heroic!

The Pro Bono Queen’s Counsel award went (for the second time) to Anthony Metzer QC from Goldsmith Chambers for forming a specialist team to advise on the use and extension of international sanctions regimes to finance restorative justice for victims of sexual violence in conflict, with particular focus on the Yazidi victims of Da’esh.

Pro Bono Chambers of the Year went to 12 King’s Bench Walk for encouraging its members to dedicate nearly 700 hours to Advocate cases. Pro Bono Chambers Professional was awarded jointly to Leigh Royall from Spire Barristers and Patrick Sarson from Gatehouse Chambers for their dedication to making space in barristers’ diaries to undertake pro bono.

The gold star for perseverance, however, must surely go to Rhys Davies of Temple Garden Chambers and Ben Keith of 5 St Andrew’s Hill who jointly won International Pro Bono Barrister of the Year for their ‘remarkable work helping a British man wrongly imprisoned in Dubai for 13 years in a very complex case spanning multiple jurisdictions’. There has to be a film in that.

Meanwhile Lord Goldsmith QC, founder of Advocate and Chair of the judging panel said, “I’ve seen people take on much more than the commitment they signed up for because they want to help someone. I believe that doing pro bono is part of being a professional and these nominations demonstrate that this work is also close to the heart of other members of the Bar. Congratulations and thank you to all the winners and nominees, and to those whose efforts are unseen.”

Let’s Pal Up Over Pro Bono

Meanwhile more on lawyers’ Pro Bono activity this week from IT company Paladin which, in partnership with Clifford Chance and five other firms, announced that it is expanding its pro bono platform to the United Kingdom so as to improve links between lawyers and those seeking pro bono legal assistance.

Paladin’s technology creates what they call a ‘curated list of opportunities’ for volunteer lawyers based on their individual interests and preferences. It then manages and tracks the work which is undertaken. According to Clifford Chance Pro Bono Director Tom Dunn, “Pro bono work has never been more important, both for its impact on society and how it can turn a good legal workplace into a great one. We believe it is important not only to do good, but to be smart about how we do it, and Paladin is the perfect partner for any law firm chasing the same goals. With just a few clicks, Paladin better matches those with skills they want to offer to those in need, leaving everyone better off.”

Clifford Chance has already had extensive experience of Paladin in its US practice. This led, says the firm, to an increase of more than 93% in pro bono hours while at the same time saving around 100 hours of administrative work in one year alone. In addition, it introduced the firm to new community partners. “Which means we’ve ultimately been able to have a greater impact,” the firm says. Sound like a Win-Win all round.

Homeward Bound for Farrer’s

Now that’s what a PROPER law firm looks like

In a clear sign of the gathering momentum towards a partial return to office life Farrer & Co has announced that from this week all members of its team should be back in Lincoln’s Inn Fields for at least 40 per cent of the week.

As a concept this would have been literally unthinkable just two years ago. But that’s the Covid effect – it’s transformed the way we see almost everything in terms of both time and space. And the added benefit for Farrers is that the period away from the office created the opportunity for an office refurbishment which will facilitate this new ‘agile’ working framework.

In particular the fresh approach means that all meeting rooms have been upgraded with new technology to facilitate more effective hybrid meetings that allow for better parity of experience between those working from home and those in the office.  Among other changes a new wellness and multi-faith room has been created for private worship and reflection, as well as a dedicated privacy room for nursing parents.

Farrers is not the only firm to transform itself over the past year or so but those who have not done so might kick themselves for missing the opportunity. As Rachel Lewis, partner and Board Member at the firm commented, “When the pandemic struck, we acted quickly, not only to offer support to our people but also to listen to what they really wanted from us. We plan to continue to evolve our work-life policy, in collaboration with our employees and we will trial and finesse the new policy and systems over the next few months.” 

Kennedys Offers Extra Day for Mental Health

While Farrer & Co. has now plugged in its new agile system of working Kennedys is still working on its vision for the future. According to an announcement this week it is now in the middle of a consultation programme, starting in London, asking colleagues what they want their workplace to look like in the years ahead.

Suzanne Liversidge, Global Managing Partner said: “While home working has been popular, the number one reason we’re hearing from people for coming back into the office is the social interaction.

“The pandemic really forced us to stretch our thinking about how best we could look after everyone. We can’t promise the rooftop pool, but we do want to create an environment that is as welcoming and supportive as possible, and we want to hear people’s views on what that looks like.”

Nonetheless some innovations have already gone ahead including a series of art classes, run live across three different time zones, in which more than 100 people around the world took part.

“The response was absolutely amazing. People only needed a pencil and a piece of paper, and I think that simplicity made it work,” said Christopher Malla. head of healthcare and strategy board member.“

Maybe the most important change, however, is the most recent – the introduction of an annual ‘wellbeing day’.

The wellbeing day is a bonus, but by calling it that we’ve found that it’s encouraging people to think differently and use it to do something for themselves,” said Caroline Wilson, global HR director. “Over 600 people have already requested their wellbeing day so far.” I bet they have!

The Language of Law

Are they speaking a foreign language? Image courtesy of Resolution

Family Law – maybe for all the wrong, sad reasons – is becoming increasingly important in national life. But among many people there is probably little real understanding of its jargon.

So this week Fletcher Day launched theFamily Law Language Project (FLLP – not to be confused with the firm FliP, Family Law in Partnership) which aims to make family law easier to understand, less hostile and more accessible to everyone. 

There is clearly a need as highlighted recently by Helen Adam, Chair of the Family Solution Group. “A new language around family breakdown is needed to ensure safety and protect children of parents who separate,” she said. “If that is to happen then we, the family professionals, must lead the way to help politicians, the press, the public and ultimately the parents who separate understand a safer approach when parents live apart.”

The Family Law Language Project is the result. Through the use of social media and accessible content, FLLP seeks to:

  • Help those who come into contact with family law to better understand the terms that are used;
  • Identify terms that are often misunderstood, or that have become outdated or offensive;
  • Identify and inform people about misuse of family law terms in the media;
  • Identify language that is aggressive or which is not focussed on the welfare of children and suggest alternatives.

Fletcher Day family partner Emma Nash who conceived the project summed it up.

“The words we use are important,” she said. “We need to re-think the language of family law and move away from terms that promotes conflict and adopt a simpler, more accessible terminology that puts the welfare of children and their families first.  Too often, I hear parents talking about having a ‘custody battle.’ This is an example of an outdated and inappropriate term that has no legal meaning, is not child focussed and increases conflict. This is only one of many examples of how poor use of language is negatively affecting those who need the law to help them. It is time to change this.”

For more go to the FLLP website.

And finally….It’s COP Again

To link with COP26 Lex Mundi (the global law firm network) and its Dutch member Houthoff has updated its  Global Climate Change Law Guide which analyses policies, measures and legislation related to climate change regimes in more than 35  jurisdictions around the world.

According to Lex Mundi the interactive, user-friendly guide provides a tool for in-house counsel and external advisers to compare and contrast laws across different jurisdictions and markets. “Users are able to select jurisdictions of interest and create side-by-side custom reports to benchmark both legal developments in relation to climate change regimes, and  to set priorities on actions to address the climate crisis,” says Lex Mundi. “We hope that, by curating this guide, in-house counsel and their advisers will more easily be able to navigate the complex web of frequently updated regulations and legislation as national leaders seek swift action to avert the climate crisis.”

THE RIGHTS AND WRONGS OF DISCIPLINARY PROCESSES

Sadly, it’s all ended in tears
Image courtesy of UK Parliament

The Government has got itself into a right old mess over the Owen Paterson affair. But maybe it’s a matter of going back to first principles of natural justice suggests Rebecca Thornley-Gibson

If an employer decided midway through an employee misconduct investigation to carry out a wholesale review of its disciplinary policy with the consequence of halting the progress of that individual’s case for an indeterminate period, many would question the fairness and rationale of the timing.

Yet this is what the government saw fit to do in the Owen Paterson lobbying case where the independent Commons Standard Committee had determined there had been multiple breaches of lobbying rules.

Although it the government has now exercised an embarrassing U-turn in its plans to overhaul the conduct review, the controversy should raise many questions about natural justice and fairness when carrying out conduct investigations in a workplace environment.

The right to a fair hearing is a fundamental human right and that extends to employees being able to put forward their representations during a fair, thorough, transparent and objective investigation and any subsequent disciplinary process that is likely to lead to a sanction being given.

Owen Paterson had the ability to make representations during his investigation but what appears to be lacking from the MP conduct system is the right to appeal Standards Committee findings.

In the employment arena that right to appeal forms part of a fair and reasonable disciplinary policy and without it employers are likely to be unsuccessful in defending allegations of unfair process.

Another fundamental lynchpin of a fair investigation and disciplinary policy for employees is clarity. An employee is entitled to be made aware of how matters will be investigated and what outcomes and sanctions are tabled. If an employee found out midway through a process that the proverbial goal posts were being changed and the process was being paused to put in place a new system, the cries of unfairness should be deafening.

If the government had real concerns about the conduct system it operates, why not let the Owen Paterson case that had been independently reviewed finish and carry out a review for all new conduct investigations.

Rebecca Thornley-Gibson is a partner at DMH Stallard and employment law expert.

The review of the Lasting Power of Attorney system: Who is it supposed to support? by Abigail Howson

Abigail Howson

Recognising that the system for granting Lasting Powers of Attorney (LPA), is ‘cumbersome, bureaucratic and complex’, the Ministry of Justice and Office of the Public Guardian is seeking to simplify the process and implement a predominately digital service. The main problem is that those who grant LPAs are not ‘digital natives’. Taking the process online will alienate many of them, or worse, they might be taken advantage of by unscrupulous “helpers”.

Most people who make LPAs need help. They are often elderly: some are vulnerable and many do not trust the internet. The current paper system safeguards those at risk by finding out what people seeking an LPA really want and helping to prevent “the lovely neighbour”, who is actually a crook, from making and registering an LPA fraudulently.

Advice and protection offered to people considering an LPA online may be limited. Although LPAs require a set form, there are many important choices, such as the identity of the attorneys, whether or not they can sell the house, or open and close accounts. If the process is as poor as online applications for probate have been, many LPAs will not fulfil individual needs because relevant points are not considered.

LPAs are complex with potentially very serious repercussions. The current system is not without flaws, but migrating the application online will not ameliorate them.

Delays in implementation exist not because of the process by which an LPA is created, but because staff in relevant financial organisations lack appropriate knowledge. Providing attorneys with access codes will not solve that problem, but may instead give unscrupulous attorneys greater scope to embezzle funds.

The current process could benefit from pragmatic change, but a digital only solution fails to serve those who have the greatest need to make LPAs. Hopefully, decision makers will agree.

Abigail Howson is a specialist private client lawyer and partner at Excello Law http://www.excellolaw.co.uk

LEADING LAW FIRMS Retaining top talent by Iain Blatherwick

To conclude our regular series on management issues Iain Blatherwick, former Browne Jacobson Managing Partner turned coach, reflects on how the challenges of retaining top talent have become more complex over the last 18 months and some steps to safeguard against this.

A recent survey by recruiter Robert Half reported that nine out of ten of the chief executives surveyed were worried about their ability to retain valued people. Factors identified ranged from burn-out and people wanting a change, through to the impact on corporate culture of remote working as there were fewer integration activities at work, less teamwork and a growing distance between colleagues. It is also apparent that geography is much less of a factor in employment decisions, so the opportunities for people to find new roles, without even having to leave home in some cases, has increased.

Some businesses are using this to support a drive for people to return to offices, but that hasn’t always landed too well either so clearly a balance needs to be struck.

For creative businesses, none of these challenges are insurmountable and I highlight two areas where leaders should focus:

1. Line management – the quality of a line manager can make or break the relationship between employer and employee. It is all very well having values and goals as a business, but if your line managers do not live up to those values or do their job properly then you have failed at the first hurdle. All too often line-management is thrust upon people as they progress, without any thought about whether they will be good at the role and without development or training. You need to be clear what authority the line manager has, so they can be transparent with their team. Take promotion – a LinkedIn Workforce Learning Report this year stated that employees with progression options stay at their businesses twice as long, so do your line managers have authority to discuss promotions with their teams and if so are they clear what the criteria and opportunities are?

Choose your line-managers wisely, invest in them and be clear what the scope of their role is – and if they are good, trust them don’t tie their hands.

2. Culture – A lot is said about culture, but what does that actually mean for an employee? People want to be proud of where they work, but also want a sense of belonging and it is this latter which is key at the moment. There may well have been less integration opportunities, but that need not be the case. The best businesses are using the opportunity for virtual meetings to involve people in a range of activities which would never have been possible through relying on getting everyone in a room. Shared learning sessions or facilitated discussions with topics including gender, race, mental wellbeing, financial wellbeing, through to the challenges facing working parents or learning about the menopause are happening and I have seen far more open, honest and engaged discussions than I have experienced before. There are also now so many more opportunities for fantastic online social events too, which are more inclusive than before, where for example childcare, distance from home or even the nature of the event might have restricted those who could attend to a usual core group.

The office clearly does still have role to play as it helps embed team spirit, support supervision and benefits new team members, but anyone waiting for everyone to be back is missing an opportunity to engage their people in a new way and help with learning and providing support in a broader way than previously. This will provoke deeper conversations and create stronger bonds than ever before.

Iain Blatherwick spent 11 years successfully leading law firm Browne Jacobson. Since stepping down from the managing partner role, Iain has completed the Academy of Executive Coaching’s (AOEC) practitioner Diploma Programme in executive coaching and is accredited by the European Mentoring & Coaching Council (EMCC). He recently launched Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.

APPOINTMENTS OF THE WEEK

at Peters & Peters and Wedlake Bell

Emma Ruane has been appointed a partner at disputes law firm Peters & Peters. Ruane trained with the firm, qualifying into its civil fraud and commercial disputes team in 2010 and has particular experience in high value, multi-jurisdictional civil fraud and competition litigation.

Emma Ruane

Ruane is currently acting for the Republic of Mozambique in the US$2 billion “Tuna Bonds” Commercial Court proceedings against Credit Suisse and Abu Dhabi-based shipbuilder Privinvest and the for the Secretary of State for Health in a £250 million claim against a pharmaceutical company for breaches of EU and UK competition rules. “Emma is a brilliant lawyer with tons of experience of fraud, competition and multijurisdictional commercial disputes. Clients love working with her. She’s a great addition to our partnership,” said Jonathan Tickner, Head of Civil Fraud and Commercial Disputes at the firm.

Emilia Petrossian has been appointed as a Trade Mark Attorney within Wedlake Bell’s IP & Commercial group. This is an internal promotion and represents fast progress for Emilia who joined Wedlake Bell as a Trainee Trade Mark Attorney in August 2021 and qualified as a Trade Mark attorney just last month.

Her expertise covers clearance searches, advising on worldwide filing strategies and the prosecution of UK, European Union and International trade mark and design applications through to registration. Emilia is also experienced in opposition and cancellation proceedings, as well as company name disputes.“The IP & Commercial group at Wedlake Bell has an outstanding reputation and has provided an environment for me to thrive and develop the skills required to provide the firm’s clients with first class service,” she said.

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Join us for the three remaining webinars in Pinsent Masons’ Oil & Gas Transition Series. 

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If you were not able to attend the first two webinars in this series, please find links to the full webinar recordings below:

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Technology, data and the energy transition17NOV202108:30 – 09:30 GMTPredictive maintenance, connected workers and virtual offshore visits all make operating offshore safer and more efficient than ever but how can disruptive digital technologies and data be harnessed to help speed up the transition to a low carbon future? In this edition of our O&G Transition Series, our panel shall consider this question from the perspective of a company operating in the oil and gas sector, but taking account of good practice and developments in other sectors, as well as looking at the issue through the wider lens of delivering a digitalised end to end energy system that supports our energy transition. Speaker:
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Ananya Modi, Assistant Director at Rothschild & Co 
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Climate change in the courts: Current trends and future risks08DEC202108:30 – 09:30 GMTHow are climate change issues being raised in the Courts to challenge Government and corporate decision making and activity? We will review the key challenges and issues brought before the Courts in the UK and elsewhere and consider the trends and risks of litigation looking forward. Speaker: Jacqueline Harris, Partner, Pinsent MasonsFurther speakers to be confirmedBook your place 
 
‘Tax, Trusts and Trysts’Thursday 18th November from COLLYER BRISTOW

Join members of Collyer Bristow’s Private Wealth team for their annual seminar, exploring the world of US/UK trust and tax planning, HMRC investigation powers, family law for international clients and more… 

 This replaces our annual Geneva Private Wealth Seminar: whilst we are very disappointed not to be able to catch up in person, we hope you can join us for an equally engaging webinar.
   

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Enjoy the fireworks tonight!

Edward Fennell’s LEGAL DIARY

Friday October 29 2021 Edition 78

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

SHORT THOUGHT FOR THE WEEK – NO COPPPING OUT PLEASE

What change exactly?

COP26 – is it all over bar the Glaswegian rats invading the Ovo Hydro at the Scottish Events Centre and gobbling up all the canapes? As Fitch Ratings commented earlier this week, a key risk is if outcomes from COP26 are seen as underwhelming, with policy resolve from major signatories to the Paris Agreement wavering from their commitments, and specifically the 2030 commitments, which require more immediate and expensive actions.

There is no need for any further apocalyptic visions of what might happen if nothing substantial is extruded from the next two weeks. We know the story. But what is clear is that – along with the scientists and the engineers – the lawyers also have a role to play in trying to make stick whatever agreements are eventually made. Because failure to do so will only encourage the likes of Insulate Britain (but on a larger scale) to take matters into their own – very sticky – hands.

And (almost) no-one wants that.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– We’re Going to Build a Wall, says Hogan Lovells

– Stop Polluting – That’s the Law according to CMS

– Black Young Professionals backed by Browne Jacobson

– Paralegals Getting Ahead

Crossing Continents

+ LEGAL COMMENT OF THE WEEK on THE BUDGET AND SPENDING REVIEW

+ LEGAL ANALYSIS OF THE WEEK

Covid vaccinations for children: Who decides? by Kate Elliott

Cracking the Family Court backlog: Can arbitration help? by Hannah Gumbrill-Ward,

Transparency Review leaves Children too Exposed by Mark Harper

APPOINTMENT OF THE WEEK at the UK2000 Group

LEGAL DIARY OF THE WEEK

We’re Going to Build a Wall, says Hogan Lovells

This must stop here

The great fear about COP26, obviously, is that it will be mostly hot methane and not much of ‘the beef’ (so speak). That’s why it is encouraging that Hogan Lovells seems to be doing something very practical by involvement in the GREAT GREEN WALL project. ‘Building walls’ has acquired a rather acid taste of late. But not in this case. The Great Green Wall is an African-led initiative that aims to build an 8,000km barrier of plants and trees at the southern border of the Sahara desert, from Senegal in the west, to Djibouti in the east, in the hope of rebuilding what used to be a thriving and fertile region. As Susan Bright, the firm’s Global Managing Partner for Diversity & Inclusion and Responsible Business, explains, “The Great Green Wall presents solutions to many of the challenges facing Africa and the global community as a whole, including climate change, drought, famine, conflict and migration. We are very proud to be supporting this pioneering project. Delivering on our commitments to being a Responsible Business is one of our firm’s five strategic priorities.”

The project is burnishing its credentials as a member of the Legal Sustainability Alliance, the Net Zero Lawyers Alliance and the American Legal Industry Sustainability Standard.The trailer for the Great Green Wall documentary can be viewed here. For further information on the firm’s pro bono impact see “Earth Fixers” a special series on climate and biodiversity action in partnership with Pioneers Post. Earth Fixers | The Social Enterprise Magazine – Pioneers Post

Stop Polluting – That’s the Law according to CMS

You cannot accuse the younger generation of being laggardly over climate change. Led by Greta Thunberg their activism has been striking (sometimes literally). But maybe it needs to be finessed somewhat because in democratic societies it is the rule of law – for the time being at least – which counts. That is why it is helpful that CMS has partnered with Young Citizens, an education charity, to create ‘Climate action: Using the law to drive change’, a new educational programme which aims to develop UK secondary school students’ understanding and critical thinking around climate action.It also tackles the United Nation’s Sustainable Development Goals (SDGs), why they are important and how they are monitored.

“We are proud to have a long-standing partnership with Young Citizens,” says Penelope Warne, CMS’s Senior Partner, “With this latest programme, we are working to help young people better understand climate action and the role of the law in driving change. Achieving climate goals is a collective responsibility and, as a future facing firm, CMS is actively working to make a positive impact in the communities in which we work and live. We have aligned our Responsible Business programme with the SDGs and have committed to Net Zero by 2025.”

Black Young Professionals backed by Browne Jacobson

Bridget Tatham

Taking place virtually over yesterday and today has been this year’s Black Young Professionals (BYP) Network Leadership Conference. The event focuses on ‘empowering and equipping young black professionals to become future leaders within their organisations’ and it aims to offer a platform for young black professionals and students to make ‘long lasting and impactful career and community connections’.

Supporting the event is Browne Jacobson which will be running a virtual recruitment stall at the event where those e-attending will have the opportunity to engage and network with members of the firm’s recruitment team and volunteers from its internal Race Ethnicity and Cultural Heritage community (REACH).“We are incredibly proud to support BYP, its allies and its community partners on this fantastic event which strives to elevate black professionals and promotes equity and equality in the workplace,” said Browne Jacobson partner, Bridget Tatham who is an Executive Sponsor for Race. “These themes really resonate with us as a firm. We are passionate about enabling our people to be authentic by striving to create an inclusive, diverse and vibrant workspace where everyone is celebrated for their differences. In doing so, our aim is to ensure that everyone has fair and equitable access opportunities ahead.”

Paralegals Getting Ahead

It’s not often that the recruitment of paralegals gets name-checked by a law firm in its public relations activity. But that was what happened this week when Berkeley Rowe announced that it had recruited two litigation paralegals, Anita Niaraki and Berivan Genc and went on to provide their career background.

Maybe that is a sign of the growing appreciation by law firms of the importance that paralegals make to the success of their businesses. Which is why it is good news that NALP (the National Association of Licensed Paralegals) has announced that its courses will now be available at seven more colleges across the UK. “This will provide paralegal students with more options when it comes to where to study and what method of study works best for them,” said Amanda Hamilton, Chief Executive of NALP said. “We have been giving people access to Ofqual-recognised paralegal qualifications since 2009 and are delighted to be extending that opportunity to people across the country with the new colleges that are coming on board. Paralegals have an increasingly important role to play in the legal system, as well as within other organisations, and it is a genuinely great choice for people looking for a career in law, who may not have the time or finances to go down the traditional routes to becoming a solicitor or barrister. We are very much looking forward to working with these colleges and the new paralegal students.”

The new centres are Guildford College, City of Oxford College, Bracknell and Wokingham College, Leicester College, South Thames College, Walsall College, Manchester College and the courses are available both online and on campus. For more information see: https://www.nationalparalegals.co.uk/training-centres/

Crossing Continents

Franco-Anglo relations in choppy waters – except in Africa Image courtesy of the BBC

Anyone who knows anything about English history understands that the natural state of Anglo-French relations is mutual belligerence rather than peace and co-operation. So a punch-up in the Channel (or La Manche if you prefer) over fishing is a just a return to normal custom and practice.

Oddly enough, however, there is a current example of harmony between the English and French ways of doing things – and it is in the law. The catch is that it’s in Africa. This is where Gide, the emblem of French lawyers at their most elegant, has signed a strategic co-operation agreement with Bowmans, a Kenya-based firm. Gide, of course, has extensive clients in francophone Africa while Bowman does business in the anglophone countries. “This is a very exciting development” said Bowman’s Senior Partner for Kenya, Richard Harney, “We have a long-standing relationship with Gide and have worked with their lawyers for a number of years. The co-operation agreement strengthens this relationship and will help us to better serve our clients in West and North Africa, with particular emphasis on francophone countries.’

 Meanwhile Jean-François Levraud, Managing Partner of Gide commented, ‘We have known the Bowmans team for more than a decade. We both share the same values and professional excellence. We have a long history of successful joint assignments that have always benefited our clients. This next step in our co-operation will allow us to support our clients in their most complex pan-African transactions.”

If only the two of them could be brought together on Jersey.

LEGAL COMMENT OF THE WEEK

on THE BUDGET AND SPENDING REVIEW

Southampton’s favourite son

 “The announcement by the Chancellor today is a step in the right direction but there will still be a shortfall of funding to tackle the justice crisis, restore public confidence and reduce the backlogs in our courts and tribunals. Moving forward the Bar Council will be engaging with the profession, courts service and Ministry of Justice to rebuild our justice system.”

 Derek Sweeting QC, Chair of the Bar Council

 “Rishi Sunak’s announcement in yesterday’s budget that part of an allocated £324m would be given to the Family Courts over the next year will be positive news for anyone currently dealing with the Family Courts in England.  Whilst it still remains to be seen how much of the £324m the Family Courts will receive, it is hoped that this much needed injection of cash into the Family Court system will help increase capacity and tackle the enormous backlog of cases that have been exacerbated by Covid-19.  To this backlog have been added 66,357 newly issued cases between April and June 2021, an increase of 14% on the same quarter in 2020 according to the latest Family Court statistics. These new cases have included most case types including financial remedy (76%), private law children (11%), adoption (11%) and matrimonial (7%) cases, although there has been a decrease in domestic violence and public law cases.

“Sunak also confirmed that £200m has been granted to complete the flagship £1.3bn court reform programme by 2024/25.  This is particularly welcome just a week after the Farquhar Committee, instigated by Family High Court judge, Mr Justice Moylan earlier in 2021, published its reports.  The Farquhar Committee is headed by His Honour Judge Farquhar, Lead Judge of the Kent, Surrey & Sussex Financial Remedies Court, and made up of a geographically diverse collection of judges at all levels of the judiciary and practitioners.  It was asked to consider and report on how the Court should continue once the pandemic is finally over and parties are free to attend Court buildings. Mr Justice Mostyn also asked them to consider whether the processes and procedures that are in existence in the Financial Remedies Court could be improved and to consider this alongside the function that remote hearings may have to play in the future.  Many of the suggested changes put forward by the Farquhar Reports, including helpful amendments to financial disclosure forms in financial proceedings and having dedicated members of staff at the court to deal with financial remedies would most definitely help reduce the legal costs of the parties involved in family proceedings and shorten proceedings but would be costly for the court to implement.  Hopefully with the announcement of the additional funds allocated in yesterday’s budget, we will see steps taken towards the rolling out of at least some of the suggested measures raised by the Farquhar Committee in the next year or so.”

Sarah Ingram is a Partner at Winckworth Sherwood

LEGAL ANALYSIS OF THE WEEK

Covid vaccinations for children: Who decides? by Kate Elliott

The battle against Covid is now being fought largely in schools and colleges rather than in care homes. But mass vaccination is a sensitive subject.

In September 2021, Professor Chris Whitty (Chief Medical Officer for England) confirmed that 12 to 15 year-old children who do not have underlying health conditions, would be offered a single dose of a regulator approved COVID-19 vaccination.  This decision came despite the Joint Committee on Vaccination and Immunisation not recommending mass vaccinations of this age group, as the vaccine would provide only marginal benefit given that they are at low risk from the virus. 

As we enter the winter season, and with concerns about rising cases particularly amongst school-aged children, childhood vaccinations remain a live issue.   If parents (whether separated or together) cannot agree whether their child should be vaccinated, or the parents and the child cannot agree, then the court will need to intervene. 

Children under the age of 16 do not have the automatic right to consent or refuse medical treatment.  A child’s opinion may however override that of their parents if a court finds them to be Gillick competent.   A healthcare professional will consider the child’s age, maturity, and their understanding of the decision they wish to make, to include any risks, before advising the court on whether they are Gillick competent and therefore able to override their parents’ decision. 

In the first instance, whether a child should be vaccinated is primarily a decision for those with parental responsibility. When those individuals cannot agree, one may apply to the Court for a Specific Issue Order that the child should receive the vaccine or for a Prohibited Steps Order to stop it.

The Court’s approach to childhood immunisations in most cases focuses on whether the immunisation is in the child’s best interests, backed by significant scientific research.  The approach that the court will take to the Covid-19 vaccination programme is yet to be seen given how recent an issue it is but based on the current scientific research, it will be difficult to claim that having the vaccination offers a medical benefit to those children without underlying health conditions. 

However, the weight given by the Court to the health benefit issue versus the emotional, psychological, and educational benefits that may flow from children of this age being vaccinated is going to be interesting to see.  If the government were to impose restrictions on those that are unvaccinated, it would likely add weight to the court ordering a child to be vaccinated.  Family circumstances may also be relevant, such as whether the child lives with a vulnerable or elderly relative.

One thing is for sure, the volume of information and debate circulating on the vaccination programme for children is only compounding the confusion.

 Kate Elliott is a Partner at Family Law Partners.

Cracking the Family Court backlog: Can arbitration help?

With a 72% rise in the number of applications made for a financial remedy to the Family Court over the past year, the relatively under-utilised method of arbitration may offer a solution says Hannah Gumbrill-Ward, Solicitor at Winckworth Sherwood

The Family Court is not currently in a good place” stated Sir Andrew McFarlane, President of the Family Division, at the recent Jersey International Family Law Conference, later adding that “the substantial backlog that existed before the pandemic has now grown very substantially”. Indeed, the latest Family Court Statistics revealed that there were 66,357 new cases started in the Family Court in April to June 2021, up 14% on the same quarter in 2020, with the most notable increase seen in the number of applications made for a financial remedy, which rose by a huge 72% from April to June 2021, when compared with the same quarter in 2020. Unsurprisingly, given this backdrop, it is becoming more and more important for people to engage with forms of alternative dispute resolution rather than relying solely on the Family Court to help them resolve their disputes.

Many people new to the Family Court system will have at least heard of mediation, not least because it is a requirement for most prospective applicants in proceedings to attend a mediation information and assessment meeting (MIAM), even if they subsequently chose not to engage with the process further. But few will be aware of arbitration and it is relatively under-utilised in family law proceedings. Despite this, it is a vital and incredibly effective way to resolve disputes and many practitioners are increasingly calling for the greater use of this valuable resource.

What is arbitration?

Arbitration is often described as a mirror alternative to court proceedings as the parties appoint a suitably qualified person to make a decision about their dispute outside of a formal court room. The parties agree to be bound by the reasoned written decision of the arbitrator which is called an Award in financial matters or a Determination in children matters.

The arbitrators Award or Determination will be binding upon the parties but if the decision is wrong or unfair in law, it can be appealed in the same way that a party could appeal a judgment made in traditional court proceedings as confirmed by Mr Justice Mostyn in July 2021 in A v A (Arbitration Guidance) [2021] EWHC 1889 (Fam).

What are the benefits of using arbitration?

  1. Time savings. Not only do you avoid the backlog in the Family Courts, where it will most likely take in excess of a year for your matter to get to a final hearing, but you are also guaranteed that your matter will be heard on a certain date. All too often now we are seeing final hearings vacated by the court at the last minute due to judicial unavailability with no guarantee of when the matter will be relisted.
  2. Cost savings. By speeding up the process and guaranteeing a hearing date, there are significant savings on ongoing legal fees.
  3. Emotional cost savings. It also cuts down on the stress of court proceedings.  Rather than matters dragging on for an extended period of time, they can be dealt with quickly and with more certainty.
  4. Control. The parties can select the arbitrator, the date and time of the arbitration and the venue. There is also less time pressure on the arbitrator and the arbitration itself, which means that the arbitrator will have adequate time to prepare and read all the relevant documents, and that time will not be limited by court sitting hours or another matter suddenly appearing in the judges list.


Can you use arbitration in disputes involving children?

Although perhaps more known for its use in financial proceedings, it is possible to use arbitration in disputes involving children and generally speaking, any issue between parents or other persons holding parental responsibility will be covered by the Children Arbitration Scheme. This includes:

  • Where a child should live, including shared living arrangements;
  • Visiting arrangements including holiday time to be spent with a non-resident parent;
  • Decisions about a child’s education.


Often, arbitration in children matters is suited to those cases which involve a single-issue determination, such as whether a child should attend a certain school or in relocation cases (which are covered under the scheme provided the relocation is to certain foreign jurisdictions).

While many people will view arbitration as just additional expense and will not initially be willing to bear the cost of the arbitrators’ fees, the overall cost (and other) savings that can be gained by utilising this method of ADR cannot be underestimated.

Hannah Gumbrill-Ward is a solicitor at Winckworth Sherwood

Transparency Review leaves Children too Exposed

Mark Harper

The Family Division’s Transparency Review will allow for more media/public access and reporting in the Family Courts. Not such a good idea, says Mark Harper

 “The current law in this respect is a mess. Although this review will provide more transparency on family proceedings, it also opens the door to potentially dangerous outcomes for children – from mental health to hesitancy to testify, who, through no fault of their own, are forced to have one of the most difficult times of their lives made publicly available for years to come.

“Justifying decisions in children’s cases should not take priority over protecting children and the identities of them and their parents.

“Almost all of the children and young people in a survey for the 2010 Children’s Commissioner for England’s report on the views of children and young people on media access to family courts were opposed to the decision to permit reporters into family court hearings, with the majority feeling the issues addressed by court hearings are private. These issues are considered ‘painful, embarrassing and humiliating’ for children and the majority of respondents said they were not the business of newspapers or the general public.

“Most worryingly about this report were findings that children will be unwilling or less willing to talk to a clinician about ill-treatment or disputes about their care, or about their wishes and feelings once they are told a reporter might be in court. This could have significant implications on the future well-being and safety of the child.”

 Mark Harper, is a Partner at Hughes Fowler Carruthers.

 APPOINTMENT OF THE WEEK at the UK2000 Group

Peter Stafford, the Managing Director of Cartmell Shepherd Solicitors, has been elected as chair of the UK200Group Lawyers’ Group which consists of sixteen law firms from across the country. Launched in 2020, the Group is composed of independent, quality assured chartered accountancy and law firms and provides a forum for member law firms to promote their expertise and share best practice.The appointments were announced ahead of the UK200Group’s Annual Conference which will be held in Edinburgh on November 10-12

Stafford said, “I am delighted to have been asked to be chairman, and this is a great platform for the law firm members and an opportunity to expand the business we do. Cartmell Shepherd Solicitors became a member of the UK200Group around five years ago and it’s an invitation only group where you have to go through a rigorous approval process so we feel honoured to be in the company of such high esteemed businesses.

The previous chairman was Mark Lello of Parker Bullen Solicitors

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 The in-house lawyer – working effectively across the organisation  

In conjunction with Thomson Reuters, please join us for a discussion led by experienced lawyers, on the role of the in-house lawyer and how to make the transition from private practice to in-house work.
Date:  23 November 2021  Time: 2.00pm-3.30pm (GMT)

This session is for all in-house lawyers and may be of particular interest to those in their early years of in-house work and those thinking of moving in-house.  In this discussion we expect to explore a range of issues relevant to this important topic, including:What is the core role of the in-house lawyer? Working with your managers and colleagues.The wants and needs of internal clients.What happens if they don’t seek necessary advice?Using external lawyers.Making a contribution across your organisation; andThings I learned the hard way.  Please click the Accept button to register for this webinar. Once you have registered you will be sent a confirmation email with full details.If you have any questions, queries or comments, please contact us at admin@legalleadership.co.uk ACCEPTDecline invitation

CADWALADERS’S Finance Forum Focus Series: Court Impact on Securitization  
Be sure to listen in to the next installment of the Finance Forum Focus Series which will be released on Wednesday, November 3. Global Litigation partner Ellen Holloman (above) will present a podcast on two of the most interesting lawsuits impacting the securitization industry today, relating to the National Collegiate Student Loan Trusts. These Delaware litigations, involving both the Consumer Financial Protection Bureau and private plaintiffs, have been very closely watched by the structured finance industry because the outcomes could upend decades of practice in the securitization industry and upset the long-settled expectation of participants.  You won’t want to miss it!  

   Listen   
Having trouble downloading? Try listening here.Please visit our website if you want to catch up on prior installments of the Finance Forum Focus Series.
 


We hope that you’ve enjoyed this edition of the Legal Diary – and maybe even found it useful. If so please relay on to colleagues.
 Please continue sending your diary news items, comments and legal analysis to fennell.edward@yahoo.com
 
 
  
 

Edward Fennell’s LEGAL DIARY

Friday October 22nd 2021 Edition 77

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

SHORT THOUGHT FOR THE WEEK – SHOULD CHILDREN HAVE ANY CHOICE?

Is that child old enough to decide on ‘Consent’?

On Monday (25 October) at lunchtime Gresham College will be hosting a lecture by Visiting Professor of Medical Law Imogen Goold on the tricky topic of  Children & Consent to Medical Treatment, the first in a series on medical law.

It could hardly be more topical. The massive rise in Covid numbers in the LegalDiarist’s home town is primarily due to the influx of young people into the large number of schools and colleges. In a free society the State should be reluctant to mandate oppressive interventions. Nonetheless there is some confusion over ‘young people’s capacity to consent, and who gets the final say if they or their families want to refuse medical treatment’. Historically this is also relevant to the Treloars ‘infected blood’ case (see below).

There aren’t easy answers – but if there were there would be no need for the law.

The LegalDiarist

Monday, 25 October 2021, 1:00PM – 2:00PM Barnard’s Inn Hall/ Online or Watch later
https://www.gresham.ac.uk/lectures-and-events/children-medicine

In this week’s edition

LEGAL DIARY OF THE WEEK

Give Life Chances a Chance, says BCLP 

It’s a Movers’ Market, reports top recruitment agency MLA

Development in Devonshires

Ampa Gets Military Backing

LEGAL COMMENT OF THE WEEK

MUSIC TO WHOSE EARS? By Caroline Harbord of Forsters

 TRELOARS SCHOOL IN THE DOCK OVER INFECTED BLOOD by Des Collins of Collins

MAKING SENSE OF THE ‘OFFICIAL INJURY CLAIM’ STATISTICS by Andy Cullwick of First4Lawyers

MANAGING IN THE MODER LAW FIRM by Iain Blatherwick

APPOINTMENT OF THE WEEK

E-VENTS from Pinsents, Harvard and Cadwalader

LEGAL DIARY OF THE WEEK

Give Life Chance a Chance, says BCLP

More poverty than TV might suggest Image Courtesy of BBC

Historically the East End has always been the ‘poor’ part of London and in many respects that is still the case (although, of course, by no means the only underprivileged part of the capital). Over the years there have been many attempts to alleviate the poverty but the latest initiative comes from the East End Community Foundation’s (EECF) Life Chances Campaign which has been given a massive lift of support from Bryan Cave Leighton Paisner (BCLP) as a founder member. The firm already has at rack record of charitable work in the area.

“We’re really grateful that BCLP have generously pledged their commitment to the Life Chances campaign,” said Chief Executive of the EECF Tracey Walsh. “Having such a prominent local business on-board who already support vital work in the community means they are knowledgeable and equally passionate about our vision to collaborate and create much-needed opportunities for the residents of the East End.”

Despite some parts of east London gaining a veneer of ‘cool’ the statistics are depressing. It is reckoned that more than 50 percent of children in Tower Hamlets and Newham are now living in poverty, more than half of all older people are income-deprived and there is even more suffering from loneliness and isolation. Mental health issues are at record levels.

The campaign now aims to raise and distribute £5 million to grassroots organizations and will focus its resources to improve the wellbeing of and employment opportunities for young people, tackle digital exclusion, and reduce poverty and isolation among older people.

As Segun Osuntokun, partner in charge BCLP UK commented, “It’s crucial that we support and give back to the local communities in the areas in which the firm operates. By providing support, services and reconnecting them with society as a whole, they can still make a valuable contribution to society.”

It’s a Movers’ Market, says Top Recruitment Agency

Major Lindsey & Africa (MLA), one of the leading international legal recruitment agencies, has just delivered a fascinating update on the state of the legal employment market. It is now obvious from reports in the legal press that there is a mighty drive taking place towards expansion but it is always useful to have that confirmed from the front line. According to MLA’s latest Global Law Firm report, “The lateral market is extremely active around the world. [The U.S. continues] to see law firms making hires across all practice groups and with a willingness to look at candidates from not only other law firms but from government and in-house positions as well….The challenge, however, is not law firms’ interest in hiring but candidates’ interest in making a move.”

The same applies to London. says MLA with a highly active lateral partner market. “Firms across the City remain persistent and aggressive in pursuing a policy of growth in line with the major U.S. legal markets. Amidst decent economic recoveries on both sides of the Atlantic, there is a prevailing view that an interest rate rise cannot and will not happen as aggressively as some commentators have predicted. Borrowing, therefore, may remain relatively cheap. All of which is supported by the continuing rapacious appetite in the market for transactional PE, M&A, leverage finance and capital markets partners; in fact, anything transactional remains on the menu. Some of the top U.S. firms have made some noteworthy anticipatory hires but we will see more.”

To read the report in full go  here.

Development in Devonshires

A good example of what MLA was talking about comes from Devonshires which has just announced nine new hires for its London office. A fizzy firm which is, maybe, rather under the radar Devonshires operates both in the mainstream and also in intriguing specialist corners such as military law, inquests and inquiries, local government and decarbonisation.

With such an eclectic practice it’s no surprise that it has gone out to a diverse range of firms for its recruitment drive. Charles Russell Speechlys, Capsticks, Ronald Fletcher Baker have all lost lawyers to Devonshires’ construction team while Mayo Wynne Baxter, Wilkin Chapman, and Beauchamps have been the source for the expansion in the real estate and projects team. Finally the Khan Partnership, HB Public Law and Capsticks (again) have contributed to Devonshires’ litigation and dispute resolution, employment team and housing management and property litigation practices respectively.

Of course, successfully weaving new but experienced people from such a range of backgrounds into the Devonshires’ fabric will be a management challenge. The firm’s motto is ‘A law firm with personality’. Let’s hope their personalities fit in.

Ampa Gets Military Backing

Whether Ampa would say that, like Devonshires, it too is a ‘firm with personality’ is not clear. Instead it would seem it has multiple personalities, two of which are law firms – namely Shakespeare Martineau and Lime Solicitors, But alongside that there is also a planning consultancy and an assets recovery firm. In other words, as Ampa puts it. they are a ‘group of legal and professional services companies with a shared purpose’. And, for sure, they are role models for the new kind of ownership in the legal industry with another brand just added in the shape of global cyber security firmCSS Assure. This marks the first non-legal service provider to join what is called Ampa’s ‘house of brands’ strategy.

CSS Assure’s Charlotte Riley

There is, actually, a logical fit with the world of law given that CSS Assure’s services include cyber security, data protection, financial crime resilience and background checks. And when CSS’s co-founders Mike Wills and Charlotte Riley join the Ampa membership (after SRA approval) they will bring a certain military bearing to the operation. Wills is a retired British Army infantry Major with more than 20 years’ experience working in technical and information assurance roles while Riley has worked for NATO and the United States Department of Defence. Expect them to be quick on the draw.

LEGAL COMMENT OF THE WEEK

MUSIC TO WHOSE EARS?

Rags to riches?

Following the Competition and Markets Authority’s decision to undertake a review of the streaming industry review due to concerns that apps like Spotify “have squeezed artists’ income and harmed consumers”, Caroline Harbord, Senior Associate in the Dispute Resolution team at Forsters examines what might happen next.

This week’s announcement that the Competition and Markets Authority (CMA) is commencing a market study of the music streaming industry will no doubt be of grave concern to streaming platforms such as Spotify.

If the final report suggests that such platforms have acted anti-competitively, this could lead to a gigantic “opt out” class action against the platforms (in the style of the recent Collective Proceedings Orders (CPOs) granted in Merricks v Mastercard, Le Patourel v BT and Gutmann v London and South Eastern Railway Limited). 

Given how ubiquitous streaming platforms are, the potential class of claimants could extend to all individuals who have streamed music over a specified period (potentially since the inception of the platforms), and the damages could run into billions (as was the case in each of Merricks v Mastercard and Le Patourel v BT). This is leaving aside class action that the musicians themselves could also launch.

Le Patourel v BT is of particular relevance here, because the  Competition Appeal Tribunal (CAT) made it clear in that case that a CPO, the order required before an “opt out” group action can proceed, could be granted against BT on the basis of the findings of an Ofcom market review.

As such, the findings of the music streaming market study could themselves provide sufficient evidence for a CPO to be granted against streaming platforms (whereas the more traditional school of thought was that a specific finding of anti-competitive behaviour had to be made by the European Commission or CMA).

The threshold evidential requirement for granting CPOs has therefore been lowered by Le Patourel v BT, and it seems plausible that any findings of the  recently announced market study by the CMA could be enough to get an “opt out” group action against the streaming platforms off the ground.

Watch this space – while the announcement is good news for consumers and musicians, the streaming platforms may be feeling a sense of impending doom.

TRELOARS SCHOOL IN THE DOCK OVER INFECTED BLOOD

Gary Webster, now 56, was given infected blood as a teenager while receiving treatment for haemophilia at Treloars School in Hampshire. This was without parental consent or advice on the risks involved. Acting on behalf of Mr Webster, Collins Solicitors has now sent a letter before action to the Chair of the Governing Body of the school. Here Des Collins, Senior Partner at Collins Solicitors, maps out his case.

It will be our client’s case that the treatment he received at Treloar’s was negligent and amounted to breach of duty of care. There was a total failure to inform and obtain consent on the risks associated with the blood products administered and a deplorable dereliction of duty in the handling of his subsequent diagnosis and after-care, despite Gary effectively being given a death sentence.” 

“Normally the time-limit for personal injury claims is three years after a child’s 18th birthday.

However, it is our position that this should not apply here given the extraordinary evidence heard – for the first time after all these years – at the Infected Blood Inquiry in June. Relevant testimonies include those by Treloar’s former headmaster, house master, care staff and clinicians in the hospital attached to the school.”  

“We recognise Treloar’s School does great work with disabled pupils today and that some former pupils have fond memories of the time they spent at the school they regarded as home for much of their childhood. However, the fact remains that in the past the school as a collective body ruined the lives of a substantial cohort of haemophilia sufferers.  Sadly, many are no longer with us to be able to evidence the appalling negligence and abrogation of responsibility that took place.  No amount of money can ever make up for a life spent on borrowed time, enduring disease that was preventable and the associated social stigma, but recompense might go some way towards easing my client’s daily struggle and provide recognition of the injury he is so deservedly owed.”  

 According to Litigation Protocol, Treloar’s, or its representatives, have 21 days to respond to Collins’ correspondence.

MAKING SENSE OF THE ‘OFFICIAL INJURY CLAIM’ STATISTICS

Looks like a write-off to the OIC

Responding to the publication by the Ministry of Justice of the first three months of data on the operation of the Official Injury Claim (OIC) portal, Andy Cullwick of First4Lawyers says

“We’re going to take time to analyse and compare this data with Compensation Recovery Unit (CRU) data. However on first reading, 40% of unrepresented claimants seeking an uplift strikes us as high. It begs the question whether the unrepresented properly understand the process needed to make a claim at all?

“Unfortunately, there is no breakdown on how many law firms are submitting claims, but we do know there is a 10% drop in the number of road traffic accidents (RTA’s) going through the CRU at the moment compared to last year. When compared to pre-pandemic levels it represents a 45% drop. However, given the number of issues reported when the OIC portal went live and the lack of integration to the Claims Portal, it is far from clear if the OIC is doing the job effectively or just blocking justice to access.”

“The purpose of these reforms was to enable unrepresented claimants to handle their own RTA claims as they were thought by the government to be straightforward. It is very clear that very few are using this portal by themselves, which suggests they are not comfortable in handling their claim via an insurer and need representation. This is exactly why we were forced into launching our own alternative business structure First4InjuryClaims to help those who require support through the process.”

MANAGING IN THE MODERN LAW FIRM

Continuing our regular series on law firm management Iain Blatherwick formerly Browne Jacobson’s Managing Partner and now a management coach, builds on recent articles about mental wellbeing for leaders and the importance of culture to consider leadership in a crisis.

Between 2009 and 2020 I was the Managing Partner of Browne Jacobson, a leadership experience bookended by crises. I have since qualified as an executive coach and have reflected on the lessons I learned and those I wish I had!

Below is some practical guidance to consider before the next unexpected challenge hits…

First, is your governance clear?

Do the boards/committees/key office holders understand and respect the scope of their roles. In a crisis you do not have time for turf wars or duplication – make sure terms of reference are agreed, understood and respected. A lot of the interference will be well-meaning, but it is still interference. This could come about through a lack of communication, so make sure you communicate clearly whenever you can to keep the organisation up to speed.

Second, leave space for innovation

There is so much noise in a crisis that it is not always easy to know where to start. Ensure you take the time to work out what genuinely needs attention and what can wait.

It is easy though for innovation to get lost in a time of crisis, despite many of the best ideas being generated at times like this – so put in place a structure to capture those ideas. Identify someone with capacity to consider those ideas and who is close enough to leadership to know what might work now. This will enable the best ideas to be brought forward and implemented and those which are good but not for now to at least be captured.

Third, consider a coaching approach to leadership

Coaching means believing in potential, developing trust and making the ‘coachee’ an empowered and resourceful team member. You need this from the team around you, to make sure they share the responsibility, and they need it in turn from their team.

This does not require everyone to go on coaching courses. Coaching is about having a really good in-depth conversation, where you really listen properly. Perhaps have fewer line-management meetings and instead make sure that there is space and time to have key conversations, giving them the attention they deserve. Let your ‘coachee’ set the agenda and focus on what and how something is being said -and make sure you are not distracted by whatever meeting is next or offering up your own solutions. Wrap up the discussion by asking your ‘coachee’ to summarise next steps – the responsibilities coming out of the meeting should be theirs. That is not to say every meeting would need to be at this level, that could be exhausting for the leader and un-nerving for the team!

This approach builds strong bonds of trust, capability and resilience in the leadership team–skills which will be essential to successfully ride out a crisis.

So much of this comes back to time: time for yourself, time for your team, time to set up governance structures, time for honest constructive conversations. If you take one thing from this, make sure you take as much control as you can on how you spend your time – not easy in a crisis, but essential so you can deliver the outcome your business needs.

Iain Blatherwick runs Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.

APPOINTMENT OF THE WEEK

Dora Grant has been appointed by DWF as UK Deputy Head of its Regulatory Consulting team. She joins from BDO LLP where she was a Senior Manager.

Dora Grant

 Grant is an experienced risk management, governance and compliance professional with experience gained from within the financial services industry from FTSE 100 companies, challenger banks, start-ups and professional services firms. In her new role she will provide regulatory advice to help clients meet their regulatory and compliance needs from complex projects and regulatory change management to ad-hoc support and ongoing services.

“I am excited to join DWF and work with the teams to support clients on their compliance and regulatory needsm” said Grant. “DWF’s clear global presence is definitely a key attraction to joining the business, as are the growth and success of the Regulatory Consulting team since established just 2 years ago. My experience and drive, together with DWF’s reputation in the market, will allow me to help grow the practice. I look forward to getting started and working with the team.”

E-VENTS

Register for this upcoming event!View this email in your browser
Register Now: Nov. 5 Webinar

In an increasingly globalized world, a complex and interlocking web of nations, governments, non-state actors, laws, and rules affect human behavior. When crisis hits—whether that be extrajudicial detention, unprompted deportation, pandemics, or natural disasters—lawyers are increasingly among the first responders, equipped with the knowledge necessary to navigate the regulations of this ever more complex world.

While lawyers are often well prepared to support clients experiencing crises, what happens when such crises test their own professional identities and training in ways that directly impact them and their organizations?

Building off of the recent publication of Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (NYU Press 2021) as well as the recent issue of The Practice that takes up the same theme, this webinar brings together leading experts to identify and define what it means to engage in the practice of law in crisis situations and this new normal.

Register by clicking here or visiting bit.ly/crisislawyering.
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PINSENTS
– EVENT -Can an AI machine be an inventor? The future of AI, IP and innovation

9 NOVEMBER 2021 Email banner image

Artificial Intelligence (AI) has the potential to transform our society and economy. Recently it has become a focus area for investors.  Dynamic development of AI technologies, and their increased prevalence, has raised questions as to whether existing patent laws are equipped for such innovations.  A recent UK Court of Appeal decision in the Thaler/DABUS case reiterated that the current legislative regime does not allow for a machine to be named as an inventor of a patentable invention.  This mirrors decisions across the globe, with exceptions in South Africa and Australia.  It is likely that this case will reach the UK Supreme Court but, ultimately legislative change must take place.   In what promises to be a thought-provoking cross sector discussion, Pinsent Masons experts Mark Marfé and Sue Chadwick will be joined by special guests Prof Chris Dent (Chair of Industrial Mathematics at the University of Edinburgh, Fellow at the Alan Turing Institute) and Alexander Korenberg (Kilburn & Strode Patent & Trade Mark Attorneys), to discuss the likely future developments in the UK and further afield, whether invention by an AI system is likely to be a reality in the future, and the ethical considerations surrounding such issues. Please note that this invitation is unique to Edward Fennell. If you know someone else who would like to attend, please forward this invite and ask them to register here.

 Can an AI machine be an inventor? The future of AI, IP and innovation9 November 202113:00 – 14:00 GMT   Accept 

      VIEW IN BROWSERFollow Cadwalader        
 
   Finance Forum Focus Series: Spotlight on LIBOR Transition In our next installment of the Finance Forum Focus Series, Cadwalader partners Lary Stromfeld and Jeff Nagle discuss the latest LIBOR transition developments, including:The deadlines for the rest of 2021 (and beyond) and a discussion of the ramifications for Q4 2021;Various rates in the market; and Legislative solutions, including the statute enacted in New York and Federal legislation currently pending.     Watch Now     Having trouble downloading? Try listening here.

We hope that you have enjoyed this edition of the LEGAL DIARY – and even found it useful. If so please relay on to colleagues.

We shall be back next week. Please send your diary news, comments, and legal insights to

fennell.edward@yahoo.com

And for those of you with school-age children – good luck with Half Term. Best not to travel to Morocco.

Edward Fennell’s LEGAL DIARY

Friday October 15 2021 Edition 76

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

SHORT THOUGHT FOR THE WEEK

This will make you feel scratchy

To vax or not to vax?

Across Europe and North America the move towards the simple principle of ‘No vax, no job’ is gathering pace. In Britain, meanwhile we are doing the usual shilly-shallying and tying ourselves up in bureaucratic knots. As Rustom Tata, chairman and head or employment at law firm DMH Stallard, explained, “In the absence of legislation, it is highly unlikely that it would be considered a lawful and reasonable instruction to require staff to be vaccinated.”

In short, employers in the UK do not have much power over this. The paradox, of course, is that employers also have the responsibility for maintaining a healthy workplace. It’s an intractable problem and whatever you do is wrong. Emblematic of our times.

The LegalDiarist

In this week’s edition

LEGAL DIARY OF THE WEEK

A Question of Privilege

Faire Enough

Well payed, City

Here’s what Diversity of Opportunity Looks Like

Miss this and face the penalty

LEGAL INSIGHT OF THE WEEK

– GO FOR THE PRE-NUP (whoever you are)

CONTRIBUTED ARTICLES

FAIRNESS IN ARBITRATION IN A POLITICAL WORLD

by Daniel Powell is a Senior Litigation Paralegal and Leigh Crestohl

FAILURE AND FAULT: NATWEST AND MONEY LAUNDERING by John Binns

SWEETHEART DEALS, THE SILICON SIX AND SECURING TAX JUSTICE IN A GLOBAL GIG ECONOMY by León Fernando Del Canto

LEGAL BOOK COVER OF THE WEEK

APPOINTMENTS OF THE WEEK by Hunters Law and Clarke Willmott

LEGAL DIARY OF THE WEEK

A Question of Privilege

It’s always a minefield trying to work out which documents are privileged and which are not. So Herbert Smith Freehills has stepped into the breach and created a new web-based app to help in-house counsel traverse quickly and safely this particular hazard.

The ‘English Law Legal Privilege’ web app – entirely developed in-house by the firm – provides clients with the information they need both on their mobile phones and via their desktops.

By analysing answers to a series of questions it can determine whether a document is likely to be covered by legal advice privilege and/or litigation privilege under English law. An on-screen report then provides a summary of its status.

The app was created by a partner Alexander Oddy along with Professional Support Lawyer Maura McIntosh, Senior Legal Automation Specialist Bilal Syed and Senior Associate Andrew Wells and the project stems from what was originally a hard copy (remember those?) version of the Herbert Smith Freehills ‘Handy Client Guide to Privilege’. The new technology makes the analysis quicker, easier and more convenient for in-house counsel wanting guidance on-the-go. “This is an exciting example of digital transformation of our business in practice,” said Alexander Oddy. “We’ve built this app entirely in house on a no-code platform in a matter of weeks through Practice Group, Innovation and Legal Ops collaboration. I think it will be a real help for busy in house lawyers.”

To find out more, click here.

Faire Enough

Congratulations to Browne Jacobson for clinching the Innovation award at the fifth annual UK Social Mobility Awards 2021.

Designed to promote social mobility the awards give recognition to businesses and organisations that demonstrate innovative ways of advancing social mobility within the workplace.

Browne Jacobson’s success was based on its FAIRE (Fairer Access into Real Experience) initiative which was devised by the firm’s recruitment manager, Tom Lyas to offer students equal access to work experience that can pave the way for a career in the legal sector.

It what was the UK’s biggest virtual work experience and legal career insights event ever to take place FAIRE worked in partnership with the organisation Young Professionals to engage with over 10,000 participants across the UK.

“We are incredibly passionate about creating and delivering genuinely innovative solutions that help aspiring legal professionals from under-represented communities get equal career opportunities,” said Tom Lyas. “We know people from lower socio-economic and minority backgrounds are still hugely under-represented within the legal profession and we know we want and need to be part of that change so I am delighted our work around FAIRE and championing social mobility has being recognised.”

Browne Jacobson is currently ranked 5th in the Social Mobility Employer Index across all employers.

Well payed, City

‘We’re only here to pay for the NHS’ Image courtesy of Evan Evans

Lawyers and accountants probably live in different universes culturally and spiritually but nonetheless they are usually lumped together economically. And that is certainly so as far as CityUK is concerned. The high profile lobbying group for the City has been making the point in its latest report that legal and accounting activities form a ‘Key part of the ecosystem which underpins the UK’s status as global financial centre’ and they punch far above their weight when it comes to tax.

In total, 755,800 people are employed by the UK’s legal and accounting sectors, 2.3% of the total UK workforce. According to the report these groups along with financial services, contributed an estimated £96.1bn in tax in 2020, 12.9% of total UK tax receipts, while making up 10% of total UK economic activity. “This underlines the disproportionate positive contribution the industry makes to the UK’s capacity to pay for key public services,” says CityUK to imply that without private sector lawyers, accountants and bankers Britain’s welfare state would be even more threadbare than it is already.

Indeed, the report, ‘2021 Total tax contribution study for UK legal and accounting activities,’ shows that the tax contributed by the two sectors made up 2.8% of total UK tax receipts in 2020. This is, apparently, equivalent to the combined capital spending budgets for the Departments of Health, Education and Housing, Communities & Local Government , providing an ‘important and resilient source of government revenue which can support its levelling-up ambitions’.

“Legal and accounting activities are a key part of the UK’s world-leading financial and related professional services ecosystem, and a source of high-value jobs right across the UK,” said Anjalika Bardalai, Chief Economist & Head of Research, TheCityUK.

“This report highlights the continued and increasing fiscal contribution the legal and accounting sectors make to the UK. This contribution has become even more striking in light of the economic damage wrought by the Covid-19 pandemic. The relative resilience of the legal and accounting sub-sector make it well-placed to make a strong contribution to the UK’s post-pandemic economic recovery.”

Here’s what Diversity of Opportunity Looks Like

It won’t attract much coverage in the wider legal press but the appointment Selina Gonzalezas a Dispute Resolution solicitor for Cartmell Shepherd Solicitors in Northumbria offers an insight into what increasing diversity means in practice.

As a teenage mum Selina gave up on her ambitions of becoming a lawyer. But twenty years later, thanks to a lot of grit and the chances given by an Access to Higher Education Diploma at Carlisle College and then admission to the University of Cumbria to get a law degree, she gained a second shot at qualification. Taking full advantage of every opportunity she then gained the backing of Mark Aspin, Head of Dispute Resolution at Cartmell Shepherd, to complete the process and secure a job.

So what’s the message? The educational system must be in place to support ‘non-traditional’ entrants. Employers must be open minded and supportive. And the individuals themselves need to be passionate and persevering. It’s not easy but it should not be impossible.

Miss this and face the penalty

And finally, there’s yet another scandal around an innocent Brit being given an attrociously heavy sentence by the courts in the Gulf But, predictably, the British Government seems to stand aside and does nothing.

Read the story and be appalled at https://detained-in-dubai.prowly.com/160000-billy-hood-what-will-the-british-fcdo-do-to-help-the-footballer-sentenced-to-25-years-for-cbd-oil

LEGAL INSIGHT OF THE WEEK

– GO FOR THE PRE-NUP (whoever you are)

Kirsty Bertarelli was smart enough to write the All Saints No 1 hit “Black Coffee”. So how come she did not have the wit to negotiate herself a substatial pre-nup when she married mega-rich billionaire Ernesto resulting in her pathetically small divorce settlement of £400M? Yes, she’ll be on the tills at Tesco next week. It’s an object lesson in the need for advance planning argues Jo Carr-West, Partner at Hunters Law.

With assets like these at stake, I cannot imagine that Kirsty Bertarelli did not take legal advice about the possibility of proceeding with a divorce in this jurisdiction.  It is likely that she was advised that the court here would have given the existing Swiss prenuptial agreement considerable weight and the outcome might not have been any different, despite the purported generosity of the English divorce court.

“Clients and family lawyers alike should take this as a sign that a good prenuptial agreement, entered into with all the right safeguards, is worth its weight in gold.”

CONTRIBUTED ARTICLES OF THE WEEK

FAIRNESS IN ARBITRATION IN A POLITICAL WORLD

by Daniel Powell and Leigh Crestohl

An arbitration panel at the International Centre for the Settlement of Investment Disputes (ICSID) recently awarded Air Canada repatriation of outstanding profits held up by Venezuela. This is yet another example of an international investor relying on a bilateral investment treaty (BIT) to pursue a state for losses. Like many such disputes, it occurred against the backdrop of turbulent economic and political factors: the devalued Bolivar; and a political leadership crisis which, following US sanctions, added to the country’s economic crisis.

Political factors create challenges for arbitration tribunals. Due to sanctions, a party may be unable to engage and pay lawyers and experts, creating an “inequality of arms”. Quantum and valuation issues are essential features of investment arbitration. Here, Venezuela’s quantum expert was unable to be cross-examined at the hearing on its report, leading the Claimant to try unsuccessfully to exclude it. The Tribunal also had to consider a request from representatives of “interim President” Guaidó to exclude counsel appointed by the Maduro Government from acting further in the case. This contest between Presidents, each claiming legitimacy, has led to similar requests in a number of cases. Here it was denied.

For the investor-state dispute resolution system to have continued legitimacy, arbitrators need to do justice to the parties and be seen to act fairly. Parties and arbitrators should do all they can to reduce the potentially disruptive impact on proceedings of sanctions and external political factors. Where a party is perceived to have been placed at a significant disadvantage, the process is undermined. Venezuela was permitted to rely on its quantum expert report in this case, but a differently constituted Tribunal might have decided differently where a party had other alternatives. It can only be hoped that parties and arbitrators will generally take actions to reduce the disruptive impact of sanctions and political events.

Daniel Powell is a Senior Litigation Paralegal and Leigh Crestohl, a Partner at Zaiwalla & Co.

FAILURE AND FAULT: NATWEST AND MONEY LAUNDERING

Last week NatWest pleaded guilty to money laundering failures – but was it a ‘failure to prevent’? asks John Binns

Did NatWest just admit ‘failure to prevent’ money laundering? Headlines seem to suggest it did, in the first prosecution under money laundering regulations (‘MLRs’). But the truth is more nuanced.

Companies can generally be guilty of offences only via their ‘directing minds’. In money laundering, that person must either know or suspect that property they are dealing with represents the proceeds of crime.

NatWest pleaded guilty not to this, but to breaching the MLRs, which transpose the EU’s money laundering directives (‘MLDs’). These made breaches a criminal offence but gave supervisors powers to deal with them civilly.

Importantly, such a prosecution requires no proof of money laundering. This is different from the ‘failure to prevent’ offence in the Bribery Act, which makes a company liable for bribes by an ‘associated person’.

So, what did NatWest do in this case? Their customer was a jeweller and gold dealer, which said it expected a turnover of £15m a year and would make no cash deposits. The bank failed to institute ongoing monitoring, and the customer deposited £264m in cash.

Interestingly, while the investigation proceeded, the UK was opting out of the latest MLD, which requires a corporate offence of money laundering, but also exploring ways to make corporates more liable for economic crimes, including via the Bribery Act model.

The scale of the activity in this case doubtless justifies the decision to deal with it criminally. Putting a bank through this sends a message about the seriousness of its obligations. But is it wise to call it ‘failure to prevent’?

Ultimately, the question is what role we want companies to have in tackling crime. For decades, we have required strict procedures of banks, but dealt with failures civilly. This case may prompt a rethink of our answer. Perhaps the better question is whether we call it corporate money laundering – and if not, why not?

John Binns is a financial crime partner at BCL Solicitors LLP in London. BCL specialise in domestic and international corporate crime, financial crime, regulatory enforcement, and serious and general crime.

SWEETHEART DEALS, THE SILICON SIX AND SECURING TAX JUSTICE IN A GLOBAL GIG ECONOMY by León Fernando Del Canto

Global tax reform has been at the forefront of ministers and finance leaders’ agenda for some time now, with calls to change international rules so that large multinationals are paying their ‘fair share of tax’.

But while the UK’s Chancellor of the Exchequer talks about ‘milestone progress’ being made in ensuring multinational corporations are properly held to account where their tax liabilities are concerned, are these ‘sweetheart’ tax deals really so sweet?

The answer, of course, for the ordinary taxpayer who runs the risk of becoming collateral damage, is ‘No’. However, a glimmer of hope shines in the darkness with renewed calls for a crackdown on dealings between governments and multinational corporations.

A report has published recently, as part of ongoing demands for the drastic improvement of public scrutiny of corporate taxes from MPs of the All-Party Parliamentary Group on Anti-Corruption and Responsible Tax, in which MPs have asked for transparency and an end to sweetheart deals between tax authorities and the corporate giants.

This follows on from the G20 agreement to introduce a 15% corporation tax as a direct attack on the tyranny of the Gig Economy, imposed mercilessly by the so-called Silicon Six (Google, Amazon, Facebook, Apple, Microsoft and Netflix).

But what does the G20 agreement mean in practice, for the Silicon Six and the average taxpayer?

I do not believe that the G20 agreement will deter multinationals, despite their threats, to operate domestically. What is clear is that they will need to invest more locally to optimise their tax payable in each country. The situation will improve local business sales as the Silicon Six will increase their costs. It will also increase domestic tax receipts and equalise tax pressure across the board.

We are facing a revolution in the global economy. The G20 finance ministers, backed by the OECD, have agreed a radical departure from a century old international tax bargaining souk, where multinationals forced States to offer the lowest possible corporation tax rate and advantages to attract their millionaire investments.

Once the initial adjustments have been made, the main beneficiaries will be domestic businesses as some of the Silicon Six will lose their unfair competitiveness. The job market will be impacted as the zero-hour type of economy will be heavily challenged when multinationals have lost control and power.

León Fernando Del Canto is an expert in international tax and legal affairs. He heads Del Canto Chambers and is a dual qualified English barrister and Spanish abogado.

LEGAL BOOK COVER OF THE WEEK

APPOINTMENTS OF THE WEEK


Mark Stiebel has joined Hunters Law LLP as a Partner in the Family Department.

Stiebel was formerly at Charles Mia, a boutique Mayfair firm, where he built up a substantial following of High Net Worth and Ultra High Net Worth clients, many of them based abroad. Originally from South Africa, Stiebel is admitted to practice there as well as in England and Wales. He advises clients on all aspects of private family law, with extensive experience in complex financial remedy cases, with a particular expertise in cases involving onshore and offshore trusts and family arrangements. He also has a complementary practices in trust and private client litigation, commercial litigation and art law.

Commenting on his move to Hunters, Henry Hood, Head of the Family department said, “Mark is a fantastic lawyer who brings a wealth of experience to our highly skilled team. I am thrilled that he has chosen to join us and look forward to working with him as we continue to develop Hunters’ family department.”

Kim Klahn is joining the corporate and commercial team at Clarke Willmott in Birmingham where she will advise on a broad range of corporate matters.

She joins from Lodders Solicitors LLP where she was partner and head of the company’s corporate and commercial department and gained particular expertise in the sale and purchase of care homes.

Rayner Grice, head of Clarke Willmott’s Birmingham office, said, “Kim’s appointment strengthens our corporate offering in Birmingham and is part of the next stage of our Birmingham office growth plans.

 “The firm’s commitment to continuing a flexible approach to working will enable us to maximise our development of the office and we are delighted that Kim will be working with us on this.”

E-VENTS

HOGAN LOVELLS – AFRICA FORUM 2021

Africa Forum 2021
Africa: Connected



We are pleased to invite you to the Hogan Lovells Africa Forum which returns for its 8th edition on Wednesday, 20 October 2021.

This year, we look towards the continent’s recovery and the importance of a Connected Africa.

Watch our video invitation to find out more.

Places are limited, so register today.


We look forward to seeing you there.

Kind Regards,

Andrew Skipper
Partner and Head of Africa PracticeRegister here.
 Details

Date
Wednesday, 20 October 2021

Time
Registration – 8.30 a.m. BST
Conference – 9 a.m. – 5 p.m. BST
Followed by networking drinks

Venue
Online and in-person:
Venue and joining details to be provided upon registration. Register today Contacts

Hayley Reynolds
Events Adviser
Events.UK@hoganlovells.com

S’mamkele Labane
Marketing & Business
Development Adviser – Africa
Events.UK@hoganlovells.com Update your Preferences hoganlovells.com/africaforum21

CADWALADER

Finance Forum Focus Series: Spotlight on LIBOR Transition
Be sure to tune in to our upcoming webinar, “Spotlight on LIBOR Transition,” on Wednesday, October 20.

Cadwalader partners Lary Stromfeld and Jeff Nagle will discuss the latest LIBOR transition developments, including: The deadlines for the rest of 2021 (and beyond) and a discussion of the ramifications for Q4 2021; Various rates in the market; and  Legislative solutions, including the statute enacted in New York and Federal legislation currently pending. You won’t want to miss it!      
 
 
 
Lary StromfeldPartner
Financial Services    
 
 
Jeffrey NaglePartner
Finance
       
 
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The Legal Diarist is now back from the his travels and looks forward to resuming the Legal Diary for the Autumn. Please continue to send your legal Diary stories, comments and legal insights to

fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Diary items, insights and comments from the legal world

Friday 8th October 2021

SHORT THOUGHT FOR THE WEEK

Insulate Europe from Britain?

Sitting in a bar in central Italy earlier this week, watching the TV news was quite an experience. The Insulate Britain disruptions to the road network were getting extensive coverage from an incredulous TV reporter. The fact that these self-appointed eco-warriors had taken control of the highway and were even denying passage to people trying to reach a hospital was shocking beyond words. “This could never happen in Italy!” she was saying.

She was probably right. Italy is a strange mix of chaos and, when it wants, cool state efficiency. The combination of the Carabinieri and local police forces would probably have stopped the demonstrators in their tracks. More important though, even the most militant Italian demonstrators would have had pity on the sick and their visitors. Seen from abroad neither British law enforcement nor British society is an appealing sight.

The LegalDiarist   

NOTE: The LegalDiarist is currently travelling so this is a ‘pocket edition’ of the Legal Diary. We will return to the normal format later this month. Please continue to send your Diary stories, legal insights and comments to fennell.edward@yahoo.com

In this week’s edition

+ LEGAL DIARY OF THE WEEK

  • Golden Dreams Await Supreme Court Judgment
  • Stage Set for Change at Shakespeare Martineau
  • Osborne Clarke Bridges Career Gap Between Law and Deprived Communities
  • Increase in Employment Tribunal Causes Since The Covid Pandemic

CONTRIBUTED ARTICLES

LEGAL COMMENT OF THE WEEK

DIVORCING EUROPEAN EX-PAT COUPLES FACING MULTI-JURISDICTIONAL MISERY, says Toby Yerburgh

THE HISTORY OF MARRIAGE

COLONISATION AND CLANDESTINE MARRIAGES IN THE EIGHTEENTH by Emma Nash

APPOINTMENTS OF THE WEEK at Vinson & Elkins

E-VENTS The latest from KIDSLAW

LEGAL DIARY OF THE WEEK

Golden Dreams Await Supreme Court Judgment

‘To recognise or not to recognise’ that was the big question recently when the Taliban rolled over (with remarkable ease) the democratically-elected government in Afghanistan. The trite, get-out answer given by UK government ministers and spokespeople was that ‘We recognise countries not governments’ – which certainly seemed a novel way of looking at the matter. It also sounds rather at odds with the situation with regard to Venezuela where the UK Government apparently recognises Mr Guaidó as the interim constitutional President of Venezuela rather than the previous incumbent Mr Maduro who claims to have been democratically elected at the last elections.

Of course, many Western governments reckon that those elections were rigged. But, whatever your view, the hard reality is that Mr Maduro is still effectively in charge in Venezuela and Mr Guaidó is not. All of which feeds into the long-running case in the Supreme Court in London over the 31 tonnes of Venezuelan gold reserves held by the Bank of England on behalf of the Central Bank of Venezuela (BCV). To whom, if anyone, should they be handed over? Or more specifically who has the authority to instruct the Bank of England to do so?

With the Court’s judgment now eagerly awaited the position of Mr Guaidó seems to be weakening internally. Primero Justicia, the second most significant opposition party in Venezuela, has indicated that it is withdrawing its support for him due to doubts about his management of overseas assets. “It is surreal to imagine that Mr Guaidó and his appointees, whose management of foreign assets and dealings with foreign governments are regarded with suspicion by his own coalition partners, can exercise authority over such vast sovereign assets for the benefit and in the interests of the Venezuelan people,” commented Sarosh Zaiwalla, Senior Partner of Zaiwalla & Co, who is representing the BCV in the UK litigation.

What the Supreme Court will conclude is anyone’s guess. But no doubt representatives of the Taliban will be looking on at the outcome with particular interest.

Stage Set for Change at Shakespeare Martineau

Week-in, week-out we see that innovation in law firm management and operation can come from firms of any size and any region. A striking example of this can be seen (and felt) in the Stratford-on-Avon office of Shakespeare Martineau which has just had a markedly eco-friendly makeover. This includes pallet-clad walls and ceiling features, booth seating with sustainably sourced fabric, and tables made from recycled yoghurt pots – tasty! (See below for the full rota of the project’s e-friendly ingredients).

As the firm observes this is ‘The first in Shakespeare Martineau’s property portfolio to undergo a major makeover to reflect modern, new ways of working’. Nonetheless it is part of a much bigger and longer-term programme which includes 30 ‘ambitious responsible business pledges’ among which are achieving net zero by 2025 and becoming carbon negative by 2030. Meanwhile the firm has also recently announced its pending B Corporation status which means that it is legally required to consider ‘the impact of business decisions on its people, customers, suppliers, communities and the environment; ensuring a balance between purpose, people and profit’.  So it’s a big agenda.

“We’re delighted with the finished look of our Stratford hub – it reflects our personality and aspirations,” said Karen Walker, the firm’s chief transformation officer. “Over the coming 24 months, our wider portfolio of hubs will undergo refurbishments to become modern, eco-friendly spaces that promote collaboration between teams.” So, literally, watch this space.

Check it out: Shakespeare Martineau’s innovations in the refurbishment of its Stratford office means that more than 80% of materials were sustainably sourced, recycled or reused – including wall cladding made from reclaimed pallets; tables created using Forest Stewardship Council wood; stools made from recycled cosmetic bottles; upcycled chairs, which have been sprayed and re-covered in sustainably sourced fabric; carbon neutral flooring solutions; neon lights made from recycled acrylic; energy efficient LED lightbulbs; and finishing touches, such as Beach Clean coasters created using EVA plastic saved from our oceans.

Osborne Clarke Bridges Career Gap Between Law and Deprived Communities

There’s lots of rhetoric out there right now about diversity and levelling up in the professions but we are still waiting to see a critical mass of programmes which deliver results. One which might do the job is ‘The Bridge’, a joint initiative between Osborne Clarke and Visionpath which aims to provide long term skills and employability support via partnerships with schools with high levels of disadvantage.

The geographical focus is on secondary schools across cities in Osborne Clarke’s UK network namely Skinner’s Academy in London, John Madejski Academy in Reading, and Merchant’s Academy in Bristol.

“With ‘The Bridge’, we have a great opportunity to make a massive impact on the future prospects of young people in our communities,” comments Visionpath’s Founder Patrick Philpott. “Research has shown [that] just four interactions with an employer during secondary school can drastically improve a young person’s opportunity to succeed. The type of sessions and experiences Osborne Clarke is creating through ‘The Bridge’ will offer exactly the sort of experience and impact that will make a difference for young people.”

This is Osborne Clarke’s first ‘holistic’ schools partnership programme which aims to facilitate access to the legal profession and law firms. The offer includes half-a-dozen key experiences including first hand accounts of individual lawyers’ ‘career journeys’, diversity events, insights into career options in the legal industry, apprenticeship workshops and one-to-one mentoring and advice on higher education entrance.

“It’s really important to us that we make an impact in the communities in which we work,” said Bola Gibson, Head of Inclusion and Corporate Responsibility at Osborne Clarke. “The Bridge is a long-term commitment to these schools, their students and our people to help prepare the next generation to thrive.”

Osborne Clarke has been involved with the Social Mobility Business Partnership (SMBP) charity since 2014.

Increase in Employment Tribunal Causes in Covid Time

Research by Wright Hassall – see below – has revealed the level of increase – since the start of the pandemic – in the most common causes of employment tribunal claims. The figures provide a fascinating insight into what has been going on over the past year and offers clues into where there might be most misunderstanding of the law.

1.  Part Time Workers Regulations… 767.08%

2. Age Discrimination… 530.07%

3. Others… 108.22%

4. Transfer of an undertaking – failure to inform and consult… 84.16%

5. Unfair dismissal…10.71%

6. Public Interest Disclosure… 10.65%

7. Written pay statement… 10.46%

8. Race discrimination… 5.24%

9. Written statement of reasons for dismissal… 0.56%

So what can be concluded from the figures?

Most importantly perhaps is that as people moved from the clarity of a regular 9-5 pattern in the physical workplace into the novel regime of furlough or remote working there was confusion as to what part-time work actually meant. And no surprise really that older workers felt themselves particularly at risk or discriminated against as bosses decided which staff were most valuable when the hatches were battened down. On the bright side maybe it was encouraging that in these unprecedented circumstances the number of claims of race discrimination only increased by 5% – deplorable, certainly, but much less than might have been expected.

Overall in 2020/21 there were over 117,000 employment tribunals which represents an annual percentage increase of over 13% since 2010/11. Unfair dismissal was the most common tribunal cause of 2020/21 with more than 23,000 complaints.

The full details are available at

https://www.wrighthassall.co.uk/knowledge-base/employment-tribunals-workplace-disputes-in-the-uk

CONTRIBUTED ARTICLES……

LEGAL COMMENT OF THE WEEK

DIVORCING EUROPEAN EX-PAT COUPLES FACE MULTI-JURISDICTIONAL MISERY, says Toby Yerburgh

Pity expat divorcing couples living in Europe caught up in the swirling fog of post-Brexit legal uncertainty! Prior to the start of this year, as between the UK and any other European country, the question of jurisdiction was decided upon the basis of where proceedings were issued first.  Divorce proceedings could only be issued here [in the UK] if one of the parties lived here or they were both domiciled here and most family orders obtained in one European country could be enforced in another.

Now that [the British] have chosen not to be bound by or replicate the EU regulations governing jurisdiction, expat couples, where at least one of them is domiciled here, face the very real prospect of prolonged litigation costing tens of thousands of pounds in both the UK and in the country they are living simply to try to determine where their financial claims should be dealt with. Then, as a result of the EU preventing the UK from joining the Lugano Convention, even once jurisdiction is determined and a court has decided how assets and income should be divided, they face the very unappealing prospect of being unable to directly enforce judgements of a UK court in another European country or vice versa meaning that they may have to bring yet more proceedings .

As there are still over 1 million British expats living in Europe such cases are likely to clog up courts, which are already under extreme pressure, for years to come. This will not only cost the taxpayer dearly but will also cause totally avoidable misery and financial hardship to thousands of families unless we swiftly wake up to the fact that the only workable solution is likely to be to realign ourselves with the EU jurisdiction and enforcement regulations and continue to press our case for joining the Lugano Convention as a matter of urgency.”

Toby Yerburgh is a Partner and Head of Family Law at Collyer Bristow LLP

THE HISTORY OF MARRIAGE

Continuing our regular series on the history of marriage EMMA NASH examines ‘Colonisation and Clandestine Marriages‘ and their implications for the institution three hundred years ago.  

By the middle of the 18th Century, the great European powers had substantial colonial holdings abroad. These were administered by a relatively small and very homogenous group of people – white males of the ‘right’ political and religious persuasion.

This presented an unusual situation in terms of family relationships with colonial populations consisting of administrator/owners, other colonists, slaves and the indigenous population each with their own family structures, morals and religious rites and rituals. The colonists had cemented their position of power, gained at the point of sword and gun, and sought to impose their own ‘higher’ values on those around them.  However, being far from their Government and Church meant attitudes towards relationships and the formalities of marriage changed or were often overlooked altogether.

Being predominantly men, finding a wife for the colonists was difficult, let alone one who came from the same class and cultural heritage. Formal marriages were therefore rare, and many colonists looked to the indigenous community and slave population to meet their conjugal and domestic needs. This was the exact opposite of what the governing powers of Europe wanted to achieve, particularly those looking to use the power of the Church to realise their aims. Missionaries in Portugal’s Brazilian colonies, seeing the Catholic Church’s position being undermined, petitioned the State to send more marriageable Portuguese women to help redress the balance and improve the morality of the colony.

 Meanwhile in England, the Anglican Church was trying to resolve the issue of ‘clandestine’ marriages, which were undermining their power to inject religion into the lives of the population.  From the Restoration, the strict requirements of canon law, such as the reading of banns and marrying in your parish of residence, had been reinstated. A ‘clandestine’ marriage was one which was valid, because it had been performed by an Anglican Clergymen, but without strict adherence to canon law. It was popular for those who wanted to a quick and quiet union, perhaps in response to pregnancy out of wedlock.  Fleet prison in London was well known for such practices, as interned Clergymen would marry anyone who could pay.  In 1754 the Clandestine Marriage Act came into force which made compliance with canon law a requirement for a marriage to be valid, and thus re-introducing religious control over unions with the power of the state behind it.

 Emma Nash is a partner in the family team at Fletcher Day.

APPOINTMENTS OF THE WEEK at VINSON & ELKINS

Roberta Downey and Angus Rankin have joined Vinson & Elkins in London as partners in the International Construction Disputes practice which is believed to be among the largest of its kind in the City.

Both lawyers were previously at Hogan Lovells where Downey had extensive experience handling large arbitrations and highly technical disputes across a range of infrastructure industries. Rankin, meanwhile, advised clients in relation to major global disputes in the energy, infrastructure, petrochemical, transportation and industrial sectors.

 “Our London International Construction Disputes team has a reputation worldwide, Roberta and Angus add to what is already a strength of the firm,” said Vinson & Elkins chairman Mark Kelly. “Celebrating 50 years in London, we continue to expand and evolve to offer a full-service team of lawyers working across a range of practices and industries.”

E-VENTS

The latest from KIDSLAW:The role of the Supreme Court in our justice system.

In this second episode of the brand new KIDSLAW series, Alma-Constance talks to Supreme Court Justice Lord Stephens about the different layers of our court system in the UK, and the process of appeal. Alma-Constance asks Supreme Court Justice Lord Stephens:

🔹 Why are there 12 judges in the Supreme Court and who decided how many there were going to be?

🔹 How does our court system compare to the court sytem in other countries?

🔹 Is being a judge more difficult than being a lawyer?

🔹 Do all judges have to agree when they are deciding cases?

🔹 Have you ever felt that after making a judgement, you got the decision wrong?

🔹 I know you worked as a judge for international cases involving children. Can you tell us about those cases?

You can listen on all major podcast platforms!

We look forward to publishing again next week so please send your diary news, insights and comment to fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Diary items, insights and comments from the legal world

Friday 1st October 2021

SHORT THOUGHT FOR THE WEEK

SING OUT FOR WELSH JUSTICE?

For how much longer will there be a Law Society for England AND WALES? Combine the Welsh Assembly with the establishment of the Thomas Commission (which set a future vision for justice in Wales) then maybe the long-term direction of travel becomes clear. If the Scots can have their own legal profession than why not the Welsh? Indeed a key Thomas Commission recommendation, a couple of years ago, was for the setting up of a Law Council of Wales to promote the awareness of Welsh law and to ensure proper provision of teaching the law in Welsh.

So this week Mick Antoniw MS, Counsel General and Minister for the Constitution, gave an update on the Welsh Government’s commitment to pursue the case for the devolution of justice and policing to Wales. (There are also proposals for specific Welsh representation on the Supreme Court).

The Covid-effect means that we are now accustomed to seeing the Welsh doing things differently from the other parts of the UK. So maybe the time is ripe for Wales to be a jurisdiction to itself. It might not make much difference to London lawyers. But it could turbo-charge the legal scene in the Welsh capital.

The LegalDiarist

NOTE: The LegalDiarist is currently travelling so this is a ‘pocket edition’ of the Legal Diary. We will return to the normal format in mid-October. Please continue to send your Diary stories, legal insights and comments to fennell.edward@yahoo.com

In this week’s edition

+ LEGAL DIARY OF THE WEEK

  • Simon & Simon, A Dynamic Duo at Clifford Chance
  • All Things (even Senior Partners) Must Pass
  • Nods to the NEDS
  • ‘Pity the Poor Immigrant’
  • Banned Weddings giving way to Wedding Banns?

+ CONTRIBUTED ARTICLES OF THE WEEK

  • WHERE NEXT FOR NON DISCLOSURE AGREEMENTS? by SIMON McMENEMY
  • THWARTING PENSION SCAMS BUT AT A PRICE? by DANYAL ENVER
  • PETROFAC CASE TO OFFER POWERFUL LESSONS by DAVD STERN
  • LEADING THE LEGAL WAY by IAIN BLATHERWICK

LEGAL DIARY OF THE WEEK

Simon & Simon, A Dynamic Duo

It’s a rare thing for a City law firm to see any of its solicitors appointed to the status of Deputy High Court Judge but the ever-innovatory Clifford Chance can boast of having done it not once but, uniquely, twice this week. Moreover – and no doubt of great sociological significance – both of the heroes rejoice in the name of Simon.

Cue trumpets and applause then for Simon Gleeson and Simon Tinkler who will be embarking from tomorrow on their six year terms which will involve sitting for up to thirty days a year.

As well as a great record within the firm Simon Tinkler sits externally on the Solicitors Disciplinary Tribunal. Meanwhile, Simon Gleeson has the exceptional honour of being elected as a Visiting Fellow at All Souls College, Oxford and has written extensively on subjects such as the legal concept of money (now definitely on the LegalDiarist’s bucket reading list).

 “I’m delighted and proud to see two of our UK partners will be sitting as judges in the High Court, at the highest level open to lawyers without previous judicial experience,” said

Michael Bates, the firm’s Regional Managing Partner for the UK. “It is a testament to both the calibre of the individuals, and also our culture of excellence in understanding how developments in law and legal policy really interact with the world of business.”

Should be a fascinating six years ahead.

All Things (even Senior Partners) Must Pass

Through one of those odd coincidences of timing Jonathan Metliss, a lawyer well-known in both legal and political circles in north London, reports to me that he recently came across the grave of  Stanley Berwin in Edgwarebury Cemetery. Berwin was an all-powerful Colossus of the post-war City scene and founder of both Berwin Leyton Paisner (BLP) and S.J.Berwin. However, the grave was neglected and Mr.Metliss is now kindly arranging for it to be cleaned. Meanwhile Neville Eisenberg, a successor of Stanley Berwin’s as boss of BLP for many years before it merged with Bryan Cave to become BCLP, has just announced that he has decided to depart the firm.  Well, we all have our endings and who remembers us thereafter? Or even cleans our graves?

Nods to the NEDS

While reflecting on great names from legal history one is tempted to lapse into Shakespearean mode and ‘Tell sad stories of the death of kings’. But time never stops for billable hours and life very much goes on over at the new corporate operation of Ince & Co. where there has been a very civilised passing of the Chairman’s baton from David Furst to Simon Howard at the firm’s AGM. “Today marks the start of a new era for Ince Group and I am pleased to be appointed as Chairman,” commented Howard who then went on to reference the appointment of two Non-Executive Directors. A new era indeed and un-recognisable to the generation of Stanley Berwin who would probably be turning in his newly spruced–up grave.  NEDs indeed!

‘Pity the Poor Immigrant’

Whether politically, socially or legally, immigration is one of the biggest issues on the public agenda so it’s impressive to see that Fragomen is boldly taking the topic by the scruff of its neck through its new ‘Immigration school’.

Now in its second year the School is aimed at students and senior pupils who might be considering a career in one of the facets of the immigration ‘industry’ (the LegalDiarist’s word).

Topics covered range from how public opinion shapes government policy through human rights, immigration and the economy and the business of immigration law. “Our autumn immigration school is a terrific opportunity for students to hear from a variety of very different senior voices across the immigration landscape and a valuable addition to a CV,” says Nadine Goldfoot, UK Managing Partner at Fragomen which has more than 4,500 immigration professionals and support staff in 50+ offices around the world.

For more see  https://www.fragomen.com/careers/opportunities/fragomens-uk-immigration-school-0

Banned Weddings giving way to Wedding Banns?

Figures released by the ONS recently revealed that divorce rates have increased significantly in England and Wales over the last 50 years while marriage rates have fallen.  And it’s going to get worse according to Charlotte Coyle, a senior associate in the family team at Goodman Derrick LLP. “Many family practitioners are anticipating a further increase in divorces in 2022 with the introduction of the ‘no fault divorce’ in April next year,” says Coyle. “With ‘unreasonable behaviour’ being the most common reason for couples divorcing in 2019 according to ONS, those who have been wanting a divorce but have been waiting for this new legislation to come into practice will now have the opportunity to do so.”

But will the post-Covid wedding rush change everything? And will  the divorce rate  eventually flatten. “As family practitioners, we await with interest,” says Coyle. So do we all, says anyone with a family.

CONTRIBUTED ARTICLES OF THE WEEK

WHERE NEXT FOR NON DISCLOSURE AGREEMENTS?

This month, Maria Miller MP has again, in a Private Member’s Bill, raised the issue of using non-disclosure agreements or ‘NDAs’ in the workplace. But is there really a need to ban NDAs in the workplace? asks Simon McMenemy

An NDA can be a clause in a contract of employment which states that the employee will not discuss their company’s business affairs outside of work during or after their employment. But this does not prevent the employee from ‘blowing the whistle’ if there has been wrongdoing or criminal behaviour, as the Public Interest Disclosure Act protects employees from suffering a detriment if they do.

Sometimes NDAs can be standalone agreements, and are often used where an employee works in their employer’s home or has access to their private life and family. These are what most lawyers properly call NDAs and which are signed at the start of employment. There have been high-profile cases involving their breach and enforceability, such as the case with celebrity model Naomi Campbell.

In presenting her Bill, Ms Miller said that NDAs were “completely unregulated”. She went on to describe agreements signed at the end of the employment relationship. However, these are in fact ‘settlement agreements’, an invention of Parliament under the Employment Rights Act 1996 which allow employers and employees to resolve outstanding differences on termination of employment for a payment in addition to notice pay or redundancy pay.

This can normally be paid tax-free and so employees often ask for such an agreement. In return the employer has peace of mind that the employee is not going to sue them after they leave. Moreover, there are safeguards within the legislation to ensure that the employee must take legal advice before they sign such an agreement, usually paid for by the employer.

In the parliamentary debate Ms Miller referred to the #MeToo movement and said under her Bill, “No one, however powerful, could buy an employee’s silence if there were allegations of wrongdoing in the workplace”.

After the Harvey Weinstein allegations emerged – along with reports that employees he had assaulted were paid in return for signing settlement agreements – the Law Society of England and Wales (not Parliament) made clear that settlement agreements should specifically state that they would not prevent employees from legitimately whistleblowing.

So, to many employment lawyers, Ms Miller’s campaign to ‘ban NDAs’ seems confused and unnecessary. This may account for why it is not, at this stage, a Government-backed Bill.

Simon McMenemy is Managing Partner, Ogletree Deakins International LLP

THWARTING PENSION SCAMS BUT AT A PRICE?

The current draft regulations designed to help members avoid pension scams might well increase the schemes’ running costs suggests Danyal Enver

A consultation process has just ended on possible changes to the draft Disclosure of Information 2021 Regulations. These regulations will require trustees to “nudge” members in the direction of helpful guidance if and when they request to access or transfer their pensions. The intention is that this will reduce members’ risk to pension scammers.

Pension liberation scamming has been growing steadily over the last 15 years and has become a major issue, especially during Covid with many members more eager to make changes to maximise pension returns in the pandemic. It is in the nature of pensions that the amounts of money at risk to these scams, especially nearer to retirement, are significant.

The draft regulations aim to inform better decision-making amongst members by making them take note of guidance provided via Pension Wise (a free government guidance service). Trustees will be required to arrange for members to contact Pension Wise and possibly to embed the Pension Wise appointment process into their scheme platform. Members making changes to their pensions would have to opt out of this prompt.

The consultation responses highlighted concerns over the cost of this administrative burden, as well as inconsistencies between these draft regulations (which will affect trustees of trust-based defined contribution schemes) and the corresponding FCA requirements for contractual arrangements such as group personal pension schemes, both of which will add to that cost.

The consultation responses also noted that the draft regulations might be seeking to engage members at the wrong time. The initiating trigger for the guidance ‘nudge’ is a member requesting to transfer or consolidate their pension, but by this point, the member has decided on the course of action already and may just see the guidance as another hoop to jump through in an already burdensome process.

Despite these concerns this mandatory ‘nudging’ is expected to be implemented at some point over the coming months. Let us hope that it does, indeed, help reduce the ever-growing scam business.

Danyal Enver is an Associate at Arc Pensions Law.

PETROFAC CASE TO OFFER POWERFUL LESSONS

A hearing at Southwark Crown Court aiming to secure resolution to the four-year investigation by the SFO into corruption and money laundering at Petrofac is scheduled to conclude today with sentencing. Here David Stern offers an insight into how this case will impact the future direction which the SFO might take in relation to business crime and what large organisations can learn from this hearing – and any ultimate sentencing.

“This case is a departure from the recent practice of the SFO’s strategy of negotiating deferred prosecution agreements (“DPAs”) with companies avoiding any criminal convictions. Since the scheme was introduced in 2014, DPAs have been considered a welcome development for corporations in that they have enabled both sides to mitigate the risks and expense of lengthy trials whilst ensuring that companies make reparation for criminal behaviour.

 Of course, in this case, the SFO had already secured a conviction against a former senior employee and the offences admitted to are of strict liability without the need to prove that the Company had acted dishonestly.

 The approach taken in this case may represent a reassessment of the suitability of DPAs, particularly in cases where a ‘failure to prevent’ offence provides a clear route to conviction avoiding the problems associated with connecting criminal liability to a company’s ‘directing mind’. Government consultations are ongoing to consider increasing the number of these offences in relation to the failure to prevent economic crime.

 Equally, guidance is clear that DPAs are only ever appropriate in instances where there is significant cooperation from the offending company. In several instances, (including agreements concluded with Airline Services Limited (2020) and Guralp Systems Ltd (2019) and Serco Geografix Ltd (2019)) the companies self-reported to the SFO. The circumstances of the investigation into Petrofac were likely not in the interests of justice for a DPA to be pursued.

 In SFO v Standard Bank, it was stated that financial penalties featured as a term of DPAs must demonstrate broad comparability with a fine following conviction, and indeed in many respects it is unlikely that Petrofac will face more punitive consequences as a result of its conviction as opposed to reaching a DPA. The early guilty plea entered by the Company means it is likely any sentence will be subject to a discount of a third.

 After Petrofac’s announcement their shares jumped more than 22% and this plea agreement represents the end of a long period of uncertainty for the company. Whilst the investigation was ongoing Petrofac would likely have been barred from obtaining government contracts and the resolution of the SFO’s investigation may now facilitate its ability to secure new contracts.”

DAVID STERN is Joint Head of Business Crime at 5 St Andrew’s Hill

LEADING THE LEGAL WAY: Culture, trust and influence

In the latest in our occasional series IAIN BLATHERWICK, former Managing Partner of Browne Jacobson and now a management coach, reflects on the importance of culture to law firms’ survival over the past ‘Covid months’ and the importance of  building on strong foundations.

Much is written about the importance of culture within professional service firms and plenty of those firms write at length and in glowing terms about their culture. Cultures have been seriously tested over the last 18 months, as firms have relied on the loyalty, goodwill, and resilience of their people and the strength of team relationships at a time of more remote and sometimes less visible management and leadership.

Firms have had to place huge amounts of trust in their people, and to a very large extent they have been handsomely rewarded for that trust. A professional services firm cannot operate on trust alone – there is still a need for support, supervision, development and standards to be met – but people like to be part of a business which trusts them, and those benefits should not be lost lightly. It would be very damaging to move from those new levels of trust, admittedly achieved through necessity, back to a position of unnecessary controls and interventions.

The debate around the return to offices is fascinating in this context and as firms grapple with the best approach, it is interesting to ask where the pressure to return comes from. You hope that those people who had the view that you cannot be productively working unless in the office have now been silenced, although recent communications from some firms might suggest not. Clearly there are good reasons to encourage a level of office working – we have already mentioned team spirit and consider new recruits who need to become a part of an organisation and will benefit from close working and the support of people around them. Whichever approach a firm takes, it should be honest about why it has taken that decision, ensuring it doesn’t stem from a lack of trust in its people to deliver the service their clients expect.

A broader aspect of culture derives from the desire to help, whether that is colleagues, clients or the communities in which a business operates. Looking to build on the fact that the vast majority of businesses had successfully and responsibly navigated the challenges of the pandemic, the CBI recently urged us all to ‘Seize the Moment’ and to contribute to ensuring the UK delivers to its full potential. I commented at the time that it feels like we all need to build on this increased trust and create momentum by proving that businesses are genuinely interested in making a broader contribution to society. The majority of people in professional services are in a very privileged position and there is an ever-increasing expectation, not least from our own people, that we should use that position to influence, support and improve the communities around us. As the battle to attract and retain talent intensifies, those businesses who trust their people and who look to play a broader role in their communities will give themselves a competitive advantage.

Iain Blatherwick now runs Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.

We hope that you have enjoyed this edition of the LEGAL DIARY and even found it useful. If so please circulate to colleagues. Great to read in a fuel queue!

fennell.edward@yahoo.com