Edward Fennell’s Legal Diary – Edition 42
Friday 22 January 2021 Edition 42
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK
Oh, ship!
It is wearisome to observe the disruption and delays at the ports following Brexit. And they are expected to get substantially worse as traffic volumes rise as the Xmas effect wears off. Such delays were predictable and were predicted. Saying ‘I told you so’ is pretty futile but sometimes hard to resist.
Getting the authorities on both sides of the Channel to see sense might require a real crisis. But that could be coming. As Shona Brown, the head of the Brexit team at the transport company (now inappropriately named) Speedy Freight commented earlier this week, “While these delays are yet to impact the general public, that will change if driver welfare is not addressed.” She went on to say, “If driver welfare continues to suffer, then more and more drivers will simply not agree to carry out jobs to and from Europe, leading to a massive resourcing issue.”
As Covid has shown, rules and regulations can be raised and lowered at pace once the penny drops in Whitehall. The drivers’ need to ‘spend a penny’ (and many other functions) might be what prompts the doors to Europe to be opened.
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– Mental health and diversity in London
– Dunn legal team biding its time
– Fair Exchange with SEC
– Uniting around a belief in law
– Social Mobility Role Models
+ LEGAL BUSINESS REPORT OF THE WEEK
– BLEAK PERSPECTIVE FROM THE BAR
+ LAW FIRM RESEARCH OF THE WEEK
– COVID IMPACT ON PARENTHOOD
+ LEGAL APPOINTMENTS OF THE WEEK
+ BIICL WEBINAR The Representative Actions Directive
+ LEGAL SURVEY OF THE WEEK
THE LEGAL DIARY OF THE WEEK
Mental health and diversity in London
Mental health issues together with diversity and inclusion should be top priorities for law firms according to the latest Litigation Trends survey conducted by the London Solicitors Litigation Association (LSLA) and New Law Journal.
The overwhelming majority of participants in the survey wanted less emphasis on billable hours and a greater respect for holidays and weekends. Additionally, promoting flexible working and offering more well-being support to lawyers were seen as important. And, unsurprisingly perhaps given the current circumstances, almost 90% of respondents believe that the legal community should go even further in facilitating agile working in a post Covid-19 world.
“In what has been a tough year, working remotely has given the profession an opportunity to reflect on our working practices, and whether these are conducive to good mental health and productivity,” said Chris Bushell, President of the LSLA and a partner at Herbert Smith Freehills LLP “Although there has been a willingness to discuss mental health in the legal profession and across society as a whole in the last few years and embrace agile working, 2020 saw a real step change.
“It is a similar story when we look at diversity and inclusion. Real progress is being made (which is fantastic), but there is still a long way to go and we cannot rest on our laurels.”
Dunn legal team biding its time
Now there’s a new face in the White House can we expect any better co-operation from the USA over extradition? The tragic case of Harry Dunn and the failure so far to secure justice for him following his collision with a vehicle probably driven by US citizenAnne Sacoolas is not going to go away – especially now that the Dunn family has brought in heavyweight Peters & Peters lawyer Nick Vamos, the former Head of Extradition at the Crown Prosecution Service.
Vamos will now work alongside the family and their astonishingly strong legal team including lawyers from Allen & Overy and elsewhere on a pro-bono basis in an attempt to get Sacoolas in front of a British jury.
Insofar as the Legal Diary has an opinion it is that Vamos and Co. will work very hard but without a great deal of success. Biden’s regime will not want to be seen caving in to the Brits – after all Biden is, as he often tells us, Irish. But we very much hope to be proved wrong.
Fair Exchange with SEC
Another bone of contention with the US which might receive a fresh look from the incoming regime relates to the Securities and Exchange Commission’srefusal to register some EU-based funds. This follows concerns that the GDPR would prohibit them from transferring personal data to the SEC to comply with its books and records requirements.
But this week, maybe spurred on by the Presidential inauguration, the UK Information Commissioner’s Office released a letter it sent to the SEC in late 2020 making clear that the GDPR permits UK funds to transfer personal data to the SEC for important reasons of public interest. The story is taken up by Edward Machin a lawyer in Ropes & Gray’s Privacy, Data Protection and Cybersecurity team.
“On Tuesday, the UK Information Commissioner’s Office published its analysis of how the GDPR applies to sharing personal data with the SEC,” saidMachin.“The analysis doesn’t break new ground in interpreting the GDPR’s international transfer rules – indeed, it repeats many of the arguments that funds and law firms have been making to the SEC since early 2019. But that the ICO is now publicly unequivocal that transfers to the SEC are necessary for important reasons of public interest should go a long way to convincing the SEC that the GDPR doesn’t impact the ability of UK funds to comply with their regulatory obligations.
“The release of the letter also comes at a crucial time for UK-U.S. relations on privacy and data security and suggests that the ICO will take a pragmatic approach to its dealings with foreign regulators. That stance will be welcomed by the many British businesses that are learning to adapt to the shifting legal and compliance landscape of a post-Brexit, post-Trump world in which sending personal data across borders plays a key role.”
So, another key post-Brexit, post-Trump decision to await.
Uniting around a belief in law
President Biden’s call for a new sense of unity in the USA in his inauguration speech was echoed by Professor Chris Bones, the chair of CILEx, in his reflections on the recent findings of the Legal Services Consumer Panel. “If we can unite around anything as a nation it is in a belief in the rule of law,” he said this week. “What underpins this is the need for every citizen to have confidence not just in the justice system, but also in the firms and individuals who operate within it.”
That, you might say, is the good news. The bad news is that if you are from a BAME background this is not the case. The findings of the report, says Professor Bones, are yet another wake-up call for a sector that is failing to deliver for all citizens regardless of who they are or where they come from. “Consumers deserve a legal profession that reflects the society it serves, and yet the sector continues to appear remote, uniform and unrepresentative of wider society. To have made so little progress in the five years that have passed since the Panel’s previous report, is simply embarrassing.”
Among a number of suggestions made by Professor Bones is the “Removal of the elitism from recruitment programmes in many law firms so that non-traditionally qualified lawyers, many of whom come from BAME communities, are given the opportunity to be appointed to roles at all levels, helping accelerate the development of a genuinely diverse profession.”
Social Mobility Role Models
Earlier this morning DLA Piper hosted a powerful webinar on the theme of ‘Driving the Social Mobility Agenda’ which aimed to ‘explore how businesses can rise to meet the challenges presented by the pandemic, and work collaboratively to inspire the uptake of measures which enhance social mobility’. Featuring a glittering array of experts led by Euan Blair, Founder of WhiteHat (and young pretender to the Tony Blair legacy) it addressed four key questions:
– What is social mobility and how is it measured?
– Has our understanding of and commitment to improving social mobility evolved?
– How do business, local and central government, and the education sector work together as part of a long-term strategy?
– What does success look like?
As the advance publicity observed ‘Research conducted by DLA Piper reflects that education plays a crucial role in advancing social mobility, but education in itself is not enough’. Quite right. It’s also useful to have a former Prime Minister for a Dad and a top QC for your Mum.
LEGAL BUSINESS REPORT OF THE WEEK
– BLEAK PERSPECTIVE FROM THE BAR
Just published this week another depressing survey from the Bar Council which shows, says Chair of the Bar Council, Derek Sweeting QC that “Many barristers have reached breaking point”.
Key findings include
Hours and fee income, while higher than last summer, remain considerably lower than before the pandemic. The biggest problem is still interruption to court work (cited by 40%).
Barristers are being forced to take on large amounts of debt simply to stay afloat. Two thirds of self-employed barrister respondents have been forced to take on personal debt or use savings (61%), and a significant proportion of these have incurred debts above £20,000 (17%). This figure is even higher for the criminal Bar (where 27% have taken on debt over £20,000).
This situation poses a serious threat to the diversity of the Bar. Barristers from ethnic minority or mixed backgrounds are disproportionately affected: half (48%) are currently experiencing financial hardship and 72% have at some point during the pandemic.
Around a quarter of respondents are having to take on additional paid work. 24% said that they needed to bolster their finances to make ends meet.
Personal wellbeing is increasingly becoming a struggle. A quarter of respondents are finding things “very difficult”, and over half feel more stressed than usual.
A vast majority of respondents feel unsafe in court. 84% had safety concerns around the cleanliness and ventilation provided in courts, and said that Covid-19 safety measures were not consistently enforced.
There is an immediate risk of exodus from the profession. Around a fifth (18%) of self-employed barristers actively want to leave the profession.
LAW FIRM RESEARCH OF THE WEEK
– COVID IMPACT ON PARENTHOOD
The Covid crisis could be having an even wider impact on society and the lives of younger people than we had imagined – including how women plan for possible future parenthood, says Sarah Jane Lenihan
A survey conducted by Stowe Family Law has revealed that 61% of women are worried about having a family due to fears of being pregnant during a pandemic, with 16% abandoning these plans altogether.
Add to this that almost 40% of women of child-bearing age expressed difficulty in meeting a partner due to the lockdowns, and the outlook could seem rather bleak.
The survey suggests the solution lies in modern technology, which is heavily impacting the direction family structures are taking. Almost half the women surveyed are now considering technology-aided methods of conceiving, which they would not have considered pre-pandemic.
The most popular alternative ways of conceiving with technology, according to the survey, include egg freezing, followed by IVF and then surrogacy. However, these techniques do have legal implications.
For example, current fertility law sets the storage period for embryos and gametes for fertility treatment at a maximum of 10 years, and the NHS will only facilitate them for ‘medical’ reasons but is this still fit for purpose? There is no specific reason for this deadline, and it certainly disadvantages women by putting them under unnecessary pressure.
Should the government (who interestingly do have an extension of the storage limit for up to 55 years out for consultation) address this legislation to support women and promote equality?
Thankfully, there has been some progress recently, and surrogacy laws took a step in the right direction last year as single parents were given the right to be legally recognised as the parent.
With more people than ever before now relying on technology to help them start a family, the law needs to catch up with today’s modern fertility choices.
Maybe we can take some comfort in Covid-19 where family planning is concerned. It may be the force needed to address the current mismatch between notoriously slow-to-evolve laws and modern technology.
Sarah Jane Lenihan is a Partner at Stowe Family Law
LEGAL APPOINTMENTS OF THE WEEK
Addleshaw Goddard has recruited JAYA GUPTA as a partner in London to lead its corporate governance offering and co-chair the firm’s India desk. Formerly an experienced corporate lawyer specialising in public company advisory work with Allen & Overy, Gupta will bring to AG extensive cross-border M&A and India market facing expertise having led A&O’s Corporate India Desk.
Kingsley Napley has recruited as partners CHRISTINA KELLY from Taylor Wessing to its Corporate & Commercial team and MICHAEL MULLIGAN from Shakespeare Martineau to Dispute Resolution. Kelly’s experience is grounded in high value, complex facilities, acting for lenders while Mulligan’s work was in contentious insolvency and commercial litigation across multiple jurisdictions. Kingsley Napley now has 66 partners, a growth of about 20% since the early Autumn of last year.
Clyde & Co has recruited PHILIP NORMAN as a Partner in its Global Projects & Construction Group to work across the UK, Asia and Africa. He joins from Covington & Burling in Dubai, where he was a partner and head of the Middle East international arbitration practice acting for a broad range of clients, from contractors to purchasers to public bodies and major developers in the construction, engineering, infrastructure, project finance, energy, oil and gas, and power sectors.
Astraea Group the ABS start-up law firm, established by James Ramsden QC and Nina Stewart has recruited three new members of the team. ROBERT BEDFORD has joined the firm as Legal Director, together with commercial litigation solicitors MATTHEW ALLAN who has a particular interest in cross-border actions and international arbitration and MORGAN WOLFE. As you might expect from a ‘challenger’ firm all three have interesting and unusual background experience. Allan is a member of the Young International Arbitration Group (YIAG) of the London Court of International Arbitration (LCIA) while Wolfe has worked for the UN Refugee Agency in Russia.
UPCOMING BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW (BIICL) WEBINAR
The Representative Actions Directive – a class action for Europe?
3 February 2021 | 17:00 – 18:15 (GMT)
This webinar will examine the recently-adopted EU Representative Actions Directive and consider its impact on cross-border and domestic collective redress actions across Europe. A roster of leading commentators will review the features of this new instrument and address how it is likely to affect the litigation landscape across Europe in respect of group claims. Although the Directive is not applicable to the UK, the future of collective redress in the UK will also be considered by the speakers.
Chair
Prof. Duncan Fairgrieve, British Institute of International and Comparative Law
Speakers
- Matthew Felwick and Valerie Kenyon, Hogan Lovells
- Augusta Maciuleviciute, BEUC, Brussels
- Neil Purslow, Therium Capital Management Ltd
- Rhonson Salim, Aston Law School
This event is convened by Prof. Duncan Fairgrieve, Senior Research Fellow in Comparative Law and Director of the Product Liability Forum, BIICL and Vincent Smith, Visiting Fellow, BIICL and Assistant Professor, ESCP Europe.
Pricing and Registration
This event is free to attend but pre-registration is required below.
For more information, please visit: www.biicl.org/events
LEGAL SURVEY OF THE WEEK
For the marketeers and PRs amongst the Legal Diary readership here is a survey in which YOU might like to take part from our friends Jaffe in the USA
How Did 2020 Affect Your Firm?
2020 was filled with disruptions, from the global pandemic to civil unrest due to the ongoing fight for racial equity. As we watch the monumental year fade into history, we are left asking two simple yet important questions – where are we now and where are we going? Will these events create permanent change, or will the “new normal” look a lot like, well, normal? We want to find out.
Jaffe has created a survey that we hope will illuminate the impact 2020 had on the PR and marketing activities of professional services firms. With your participation in this 3-minute survey, we can better assess where our industry currently stands and where we will be in the upcoming years. The survey is open until February 9, 2021, and we will share the results in an upcoming report.
Take the survey at https://www.surveymonkey.com/r/B9B3TQT