Edward Fennell’s LEGAL DIARY

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

May 3 2024

Editorial contact: fennell.edward@yahoo.com

THE RCJ: A symbol of ‘British legal logic’?

With the Russo-Ukraine war now grinding depressingly into its third year it is hard to find any crumbs of comfort. Nonetheless, a tiny one appeared this week, however, with an account that lawyers with Ukrainian ancestry from global law firm Kennedys have established a  Spilka UK, a network which is helping more than 350 displaced Ukrainian lawyers to foster their careers in the UK.

According to one of these lawyers, a forty year old with senior experience in the Ukraine, “The British legal system has given me new faith in the power of our profession. For those Ukrainian lawyers who are now in Britain, I think being part of Spilka will allow them to absorb British legal logic and rules, and the standards of the profession which, if they choose to return to Ukraine, they can carry into the Ukrainian legal system.”

That might be a big ‘IF’. Due to the war, Ukraine has leaked a vast amount of its talent. Whatever the outcome, persuading people to return might prove difficult. As with most wars, even when it’s over the damage will take a generation or more to mend.

The LegalDiarist

In this edition

– Leaders of the Pack

Browne Jacobson Cracks Open the Welsh Government

Swiss Woman Scales Legal Summit

Weekly Legal AI Update: Introducing LawY

The EU’s Digital Service Act: How Technology Can Help Combat Illegal Ticket Sales

by  Zach Burks

on ‘gender critical’ damages, the FCA and naming and shaming, family courts and feeking safe at school.

at KPMG LAW and Taylor Wessing

Leaders of the Pack

Social elites are coming under attack as never before but in the law they maintain their dominance – or at least they do when it comes to long distance running!

Taking the top two places in the Team category in the inaugural 5,000m MD Communications Legal race around Regent’s Park recently were Slaughter and May (the Bank of England’s favourite) closely pursued by the royal-connected Farrer & Co. Meanwhile in third place were Clyde & Co. long-regarded as one of best shipping firms in the world.

INDIVIDUALLY, however, it was a slightly different story. Here, in what might traditionally be called the ‘Men’s race’, the top runner was Matthew Battensby of  Burges Salmon LLP. Meanwhile for the ‘Women’ it was Chloe Wilkinson of Pinsent Masons who stormed through as Queen of the Stride.

The charity beneficiary of the event was ‘Skylarks’ which provides activities and therapies for children with disabilities and other needs. This was selected by MD Communications CEO Melissa Davis whose daughter has severe, non verbal autism and learning difficulties.

“I am beyond thrilled to see such enthusiasm and participation from the legal community in our inaugural Legal 5k Run,” said Davis. “It was truly inspiring to witness everyone come together to promote health and wellness while supporting Skylarks, a special charity close to our hearts. We look forward to seeing everyone next year [when] I am sure we will hit 1000 runners.”


Browne Jacobson Cracks The Senedd’s Glass Ceiling

It is good to have clients with a bit of influence. Browne Jacobson, for example, has the Welsh Government on its books which enabled it to set up a session inside the Senedd for six law students (above) as part of its FAIRE (Fairer Access into Real Experience) programme which provides work experience opportunities for students from backgrounds under-represented in the profession.

“Having worked with the Welsh Government for many years, it was fantastic to bring it on board in our FAIRE programme, which our firm is hugely passionate about to help make the legal profession open to young people regardless of their background and thus widening the talent pool for law firms,” said Laura Hughes, Head of the Public Law team and Executive Lead for Wales at the firm.

During their visit to Cardiff Bay the students were given a tour of the Senedd building and also heard from Matthew Richards, Head of Legal Services, who gave his reflections on life as a parliamentary lawyer at the Senedd.

“It was a pleasure to host such an enthusiastic and engaged group of students,” saidStephanie Evans, Deputy Director for Welsh Government Legal Services, “ and to be able to demonstrate that a career in the law is for everyone, regardless of your background, while raising awareness of the exciting opportunities that exist for lawyers within Welsh Government. We wish all the students we met all the very best for their future legal careers.”

At the British Chamber of Commerce’s Awards last year Browne Jacobson was the highest-ranked law firm in the Social Mobility Index 2023 and was also ranked as one of the UK’s top five employers.

Swiss Woman Scales Legal Summit

The Geneva Bar Association has – for only the second time ever – elected a woman as its President. Sandrine Giroud (left), a partner with International disputes firm LALIVE, takes over in the job immediately and will be in office for the next two years. The Association acts for about 2,200 lawyers from across nearly 500 firms in Geneva and has the role of representing and defending the rights of its members both within Switzerland and abroad. Its previous woman President was Dominique Burger who was elected almost twenty years ago back in 2006.

“It is an honour to have been elected as President of the Geneva Bar Association, an organisation which stands for the protection of lawyers and their mission and for the rule of law,” said Giroud. “My priority is to continue helping our members successfully navigate the multi-faceted challenges that we face, including the ever-changing regulatory landscape, the adoption of new technology by our clients and our own firms, and the increasingly competitive legal market. I am also eager to further the cause of greater diversity amongst our members and the wider Swiss legal market.”

LALIVE is an international firm with offices in Geneva, Zurich and London and is particularly well-known for its work in dispute resolution.“This is a fantastic achievement of which we are very proud,” said Domitille Baizeau, Managing Partner of LALIVE. “We have no doubt that Sandrine will be an outstanding leader and advocate for the legal profession in Geneva.”

WEEKLY AI UPDATE: Introducing LawY

This week’s ‘AI in the law’ innovation comes from LEAP, (the legal practice management productivity solution) which has gone into partnership with a newly integrated ‘AI legal assistant’ by the name of LawY. Users of LEAP will now be able to access LawY to, as they claim, ‘generate fast, accurate responses to legal questions posed by practitioners’.

According to the publicity, LawY uses AI to answer legal questions from an expanding legal knowledge base, that ‘grows, improves and learns with each verified response’. Behind LawY is a small army of experienced and qualified lawyers who act as verifiers. Their job is to eliminate any risk of error or misinformation. The claim is that unlike other AI tools the results produced within LawY include case law and references to support any findings.

“LawY ensures that information produced is accurate and reliable and aligns with the rigorous standards upheld by legal practitioners,” comments Gareth Walker, CEO, LEAP UK. “In the last year LEAP has invested time and money into developing AI functionality within the software, and the LawY integration is just the beginning of a list of exciting new AI features being made available over the coming months.”

The long list of tasks that LawY can accomplish includes conducting legal research, reviewing case law or legislation, creating precedent orders and drafting affidavits plus, of course, drafting letters and documents. What is most striking is how competitive this ‘emerging’ market is rapidly becoming.

The EU’s Digital Service Act: How Technology Can Help Combat Illegal Ticket Sales

by Zach Burks

The global ticketing industry has seen crime levels increase dramatically in recent years, impacting live events including sports events, festivals and concerts through fraud and phishing scams. Santander UK estimated that the number of ticket scams in the UK doubled in 2023 compared to the previous year, with similar trends being seen around the world.

Instances include the Liverpool vs Real Madrid Champions League final in 2022, where thousands of fans unwittingly turned up at Paris’s Stade de France with fake tickets. This contributed chaos involving overcrowding, policing issues and a 36-minute delay to kick-off. 

In response, jurisdictions around the world are focusing on regulating the industry. This year, Singapore is implementing a shared responsibility framework which puts more responsibility on telecom providers to reimburse phishing scam victims, in a bid to incite preventative measures. Similarly, the UK’s Online Safety Act (2023), requires resales platforms to control fraudulent advertising from resellers.

Notably, the EU has implemented the Digital Services Act (DSA) which came into force in February of this year. Amongst other regulatory aims, the DSA tackles illegal ticket sales by subjecting secondary marketplaces to ‘stricter due diligence and reporting requirements’, including ‘identifying and verifying’ third-party sellers to increase the traceability of illegal sellers.

The DSA will largely be enforced using national Digital Service Coordinators (DSCs), leaving implementation up to national bodies. This enforcement strategy raises concerns over whether there will be a standardised approach, with many member states having yet to designate a DSC.

Whilst representing a welcome starting point, more can be done to streamline ID verification across the EU. As such, it would be wise to turn to existing technology. This includes blockchain and Non-Fungible Tokens (NFTs), which have the capacity for identity verification. Blockchain is a technology which, by design, contains open-source data which cannot be tampered with. By creating an NFT that represents a seller’s identification and printing this on the blockchain, accurate verification can take place. Similarly, by printing tickets as digital tokens, or NFTs, on the blockchain any risk of alteration or duplication is removed.

This technology has already proved successful. In 2023 Mintable, an organisation exploring the utility of NFTs, was commissioned to develop an NFT to publicly identify stolen cryptocurrency. Using the NFT to verify transactions, Singaporean authorities were able to recover millions of US dollars worth of digital assets.

This underscores the potential for leveraging ID verification technology for the ticket reselling industry. Integrating NFT ticketing into the EU’s ID verification processes therefore presents a pragmatic way to combat illegal ticket resales and restore consumer confidence.

Zach Burks, the founder and CEO of Mintable, is a prominent blockchain developer who is instrumental in expanding the utility of NFTs. 

TOPIC: The case of social worker, Ms Meade, harassed over gender-critical beliefs, who won damages of £58,000 against Westminster City Council and Social Work England

COMMENT BY: Katie Mahoney, Of Counsel, Mishcon de Reya

“Ms Meade was awarded just over £58,000 by the Employment Tribunal. This sum included a £40,000 award for injury to feelings. Both Respondents – Westminster City Council and Social Work England – are jointly liable for this sum.

“Ms Meade was also awarded £5,000 for exemplary damages. These are to be paid by Social Work England only. Exemplary damages are rarely awarded and are “designed to punish conduct that is oppressive, arbitrary or unconstitutional”. The judgment set out that “awards of exemplary damages are reserved for the most serious abuses of governmental power”. Employment Judge Nicolle said that Social Work England had “allowed its processes to be subverted to punish and suppress” Ms Meade’s lawful political speech.

“The judge also ordered Westminster City Council and Social Work England to ensure that within the next six months all managers, HR staff, triage staff, investigation staff and case examiners receive training on freedom of expression and protected beliefs.

“As far as we are aware, this is the first time that a regulator has been ordered to pay exemplary damages because of how it carried out its regulatory function. Not only should it sound alarm bells for other regulators, but it should serve as a reminder that lawful debate cannot and must not be punished or silenced.”

TOPIC : The Chancellor, Jeremy Hunt’s warning to the FCA against ‘naming and shaming’ businesses under investigation

COMMENT BY:  John Binns, Partner, BCL Solicitors 

“The obvious point surely is that there is (or should be) no shame at all in being under investigation. In the same way as we value due process for individuals, so businesses (and their owners and personnel) should have the benefit of the doubt unless and until wrongdoing is proved. At that point, a public censure may or may not be an appropriate step, depending on the severity of and blame attached to the breach. It should not have to take an intervention from a minister, let alone the chancellor, for a regulator to understand this.”

He demonstrates a deep understanding of the issues at hand, and his approach to navigating the complexities is both thoughtful and strategic.” 

TOPIC: The new procedure rules which have come into force in the Family Courts which could see more disputes resolved away from court.

COMMENT BY: Nick Gova, partner and Head of Family, Spector Constant & Williams

“The new rules concerning Non Court Dispute Resolution (NCDR) – whch came into force last week – are a welcome and inevitable shift in family law. It will now be at the heart of every family law matter. This is a crucial but necessary steps at a time where courts remain burdened with frivolous applications or parties simply wishing to litigate.”

Changes include parties at a mediation information and assessment meeting must be provided with information about the principles, process and different models of mediation and other methods of non-court dispute resolution, such as mediation, arbitration, evaluation by a neutral third party and collaborative law.”

TOPIC: The Department of Education’s latest statistics which reveal that only two in five pupils feel safe at school 

COMMENT BY: David Hardstaff, General and Serious Crime Partner, BCL Solicitors

“Violence in schools is on the rise and teachers are increasingly feeling abandoned by the state when it comes to defending themselves and others.

“The Department for Education’s woefully inadequate guidance on use of reasonable force has left many unsure of what they can and can’t do to prevent violence.

“Coupled with overzealous prosecutions of teachers who have tried to exercise their best judgement in the most challenging of situations, the message going out to teachers is that you are on your own.

“It is a desperate state of affairs when we fail to protect the same professionals we task with caring for children with often complex needs. Who would want to be a teacher in 2024?”

KPMG LAW

Vicky Topps has been appointed Director in KPMG Law’s Tax Disputes team. She joins from HMRC where she was acting as the deputy director overseeing the Large Business Midlands region, looking after the compliance affairs of 340 of the UK’s top 2000 businesses.

She trained originally at KPMG and says that she has now returned to the firm because the tax disputes team at KPMG Law (2023 winner of Tolley’s Tax Awards for Best Tax Disputes team) have a great track record for dispute resolution.

Stuart Bedford, Head of KPMG Law in the UK, comments, “It’s an exciting time to be at KPMG Law; not only as part of the rapidly growing and evolving UK Legal Services market, but also as we look forward to the opportunities Generative AI brings to the legal profession, ourselves, and our clients.”

Topps added, “The team is committed to growing the practice in early dispute resolution and advocating alternative dispute resolution as a tool to resolve issues through our mediators here.” 

TAYLOR WESSING

Elinor Picton (left) has been appointed as a Partner in the Corporate group at Taylor Wessing as one of a group of eighteen lawyers joining the partnership this week. Having joined the firm as a trainee she has worked her way up thorough Associate and Senior Counsel to her new role.

Her specialist experience includes working in venture capital, supporting high-growth companies in the technology sector. She advises on every stage of the life-cycle, from early-stage funding, through growth capital, international expansion, and to M&A. She has also advised institutional, corporate and individual investors on their investments into fast-growth companies. In addition, Elinor advises on buy and sell-side M&A transactions, restructurings and joint ventures, particularly within the technology sector

“I am delighted to announce our new class of senior lawyers,” said Shane Gleghorn Taylor Wessing’s UK Managing Partner and Co-chair of Global Board “These talented lawyers reflect the breadth of substantive expertise and geographic presence that our clients seek and have demonstrated their commitment to our firm’s values and culture.”