Edward Fennell’s Legal Diary – Edition 3
Snips, comments and contributions from lawyers and the legal world
Thursday 9th April 2020
What are we waiting for?
Short Thought for the Week
Yesterday Paul Hastings hosted a webinar presented by the well-known workplace commentator Sir Cary Cooper (from Manchester Business School) on the theme ‘Staying Positive and Working from Home’. PH was able to access this distinguished expert because his son-in-law is a finance partner with the firm and there was much joshing between them about how Cooper was going to be doing the home schooling for his grandchildren that evening. Cooper’s main point was that this weird WFH period is both very demanding and requires discipline and structure but is also a once-in-a generation opportunity to ‘live a bit’ and re-calibrate ‘life and work’ so as to get them in better balance. That will be good both for family relationships and for producing better work. This is not least because, according to a report published yesterday by Theta Financial Reporting, almost 40% of the population feels that ‘presenteeism’ actually makes them less productive. Let’s hope that the lockdown terminally kills off that malignity in professional life.
THE DIARY
FIGHT THE VIRUS WITH FUNDS
It’s not just the front-line medics the hospitals and the care homes who are fighting the C-virus. Behind the lines it needs the lawyers too fighting to create a better infrastructure for the NHS.
So credit to the Travers Smith team led by Partner Aaron Stocks, along with US Securities Partner Dan McNamee and Senior Associate Brent Sander who have been advising Assura on this week’s £185 million placing to fund the development and acquisition pipeline which will deliver future GP surgery, primary care and community healthcare buildings for the NHS.
The transaction will allow Assura to continue to support the NHS by developing new primary care facilities and fund its record acquisition pipeline. £2.5 million of the proceeds are being donated to a charity to support the communities within 15 miles of healthcare centres owned by Assura. Should be ready in time for the next epidemic (it might be closer than you think).
Meet Again?
Today’s news that Slaughter & May is suspending partners’ pay and Bird & Bird is considering withholding quarterly profits is evidence of just how serious is the predicament facing even the most prestigious of London’s law firms. But as the news trickles out about the different schemes and formulae being adopted – from salary deferments to furloughing and redundancy – managing partners should take account of how this will look in retrospect. Already the press is pointing the finger at top professional service firms – accountants and lawyers – as being in the same league as Premiership football clubs in terms of maladroitness. The question ‘How will we look when this is all over and ‘we meet again’?’ should also be on the agenda of the top table.
Where in the world?
Bird & Bird ‘s techie experts have come up with a wonderful world map charting the different regulatory systems around the globe indicating what businesses and employers can and cannot do with their staff in relation to C-19 and data protection guidance. It is worth taking a close look at the map available on Bird & Birds C-19 hub
but, just so you know, the chart uses a traffic light system so that
• Green = YES you can do it
• Amber = YES but limitations – where there are restrictions/limitations on an employer from processing data that go beyond ordinary GDPR principles
• Red = you CANNOT do it
• Grey/Black = for n/a, e.g. where there is no official guidance.
I suspect that there may be scope for extending this approach further to many other areas of office etiquette.
Words Worth Creatives
By saving time on the commute lawyers and many others who are part of the wider legal industry are re-engaging with their creative talents in music, painting and poetry. PR maestro Tim Maltin, the boss of MaltinPR (which acts for many London law firms and is a dab hand at litigation PR in particular) has been drawing inspiration from his home area near the famous ‘White Horse’ in Wiltshire and the skylarks who circle around it. Here’s an extract from his poetic response
Skylarks above the White Horse by Tim Maltin
High above this ancient land,
Hewn by nature and by man,
Your song’s the crowning glory,
Blissful from wing’ed storey.
Raining from the blue above,
Ecstasies of death and love,
You celebrate life in rhyme,
freeing us from mortal time!
Through your songs we live again,
Memories that time had slain;
Thoughts take flight to far away
Rememberings of yesterday.
Listen carefully old and young,
To the skylarks’ plaintive song,
For in their chirruping call,
Can be heard the Lord of all.
APPOINTMENT of the Week
LOH WAI YUE – AN INCISIVE CHOICE IN SINGAPORE
The Ince Group has appointed this week Loh Wai Yue as the new Joint Managing Director of Incisive Law LLC, its ‘alliance’ firm in Singapore. He will serve alongside current Joint Managing Directors Bill Ricquier, who has led the firm since its inception in 2011 and Edgar Chin who dates back to 2016.
This is an important career development for Wai Yue who is already well-known in the firm as the current Chief Representative of Ince’s Beijing office as well as being Head of China Practice in Singapore. But he is a remarkably talented and versatile man being qualified not just in Singapore, and Hong Kong law but English law too. What’s more, having been recognised by the Singapore Academy of Law as a Senior Accredited Specialist in maritime and shipping law, he is part a select group of senior practitioners at the Singapore bar. “Wai Yue brings with him a huge amount of maritime knowledge, as well as the ability to practice across multiple jurisdictions,” says Adrian Biles, Chief Executive of The Ince Group. “He will enable us to offer an even greater level service and understanding to our clients, while we continue to work on some of the most technical and pressing cases in the region.” Bill Ricquier added that Hwai Yue is a very experienced maritime lawyer, who has the right vigour and ability to” inspire as well as lead the firm in continuing to provide the highest level of advice .”
CHOICE QUOTES for the Week
Lawyers love to reflect on the events of the week. Here are some of the choicest observations from the last few days:
TOPIC: Failure of the National Crime Agency in the Unexplained Wealth Orders case against Nurali Aliyev.
“The Court rejected the factual basis upon which the NCA sought the Unexplained Wealth Order. Irrespective of the merits in this case, the complexity of its facts demonstrates the inevitable challenge of proving the ownership, control and origin of property for these applications.”
David Rundle, Counsel in Wilmer Hale’s UK White Collar Defence and Investigations practice
“New powers need robust testing in the courts before their true potency is to be understood. With a power as detrimental to those on the receiving end as a UWO, it is right that the evidential hurdle is high. It will take time and many more cases like this for the NCA and legal practitioners fully to get to grips the requirements.”
Ben Ticehurst of Howard Kennedy LLP
“This is quite a set-back for the NCA”
Dame Alison Saunders, former head of the DPP
TOPIC: The High Court’s decision in the case of Volkswagen’s use of ‘defeat devices’ in its diesel cars
“Our clients bought their vehicles in good faith and are fully entitled to expect them to comply with the law. Many of our clients have been horrified to find out that they had been driving vehicles which were much more harmful to the environment than they were led to believe. We hope that Volkswagen accepts the court’s decision and we urge them to now do the right thing and put their customers first by entering into settlement negotiations so that our clients are not forced to drag VW through the courts and be faced with further years of litigation to determine their losses.”
Bozena Michalowska-Howells, Leigh Day,
“This damning judgment confirms what our clients have known for a long time, but which VW has refused to accept: namely that VW fitted defeat devices into millions of vehicles in the UK in order to cheat emissions tests….VW’s utter failure to convince the court of the merits of its case means that now is surely time for it to settle these claims and put this shameful episode behind it.”
Gareth Pope, Slater and Gordon
‘Dieselgate’ was not only a betrayal of consumer trust but a devastating human and environmental scandal.
“This is a clear warning to all car manufacturers and industry across the board that deceptive behaviour will not be tolerated. Two million Britons were duped into buying vehicles that were emitting up to forty times the legal limit of nitrogen oxide, with cars affected becoming less efficient after undergoing software changes. Volkswagen Group’s deceitful acts amount to one of the largest corporate scandals of all time. With the potential for the final pay-outs amounting to hundreds of millions of pounds, this case could become the largest consumer action in the legal history of England and Wales.”
Aman Johal, Director of Your Lawyers which issued the initial high court proceedings against Volkswagen.
TOPIC: The knotty problem of creating a valid Will in the land of lockdown.
“Complying with the rules is difficult during lockdown but the potential risks of having an invalid Will are too great not to get this right, and could lead to intestacy, increased tax and significantly higher legal costs, especially if there is a dispute about a will’s validity. If in doubt take specialist legal advice.”
Richard Kershaw, Head of the Dispute Resolution Group at Hunters Law LLP.
“The Ministry of Justice has recognised the need for a period of relaxed rules. It has been discussed whether signings and witnessing could take place remotely, via video call technology. The need for this becomes even more apparent, when the matter of deathbed Wills is brought into question, as those hospitalised and reaching end of life care with the coronavirus are unable to be with friends and family and those all important friends, neighbours or legal professionals who would normally act as witnesses. In these cases, there is a plea for hospitals to also relax their rules around doctors, nurses or other members of staff witnessing patients’ Wills.”
COMMENTARIES of the week
THE IMPACT OF COVID-19 ON HOW LAWYERS OPERATE
by David Saunders, Head of Client Development at Konexo, a division of Eversheds Sutherland
At a time when the legal landscape was already in the midst of great change, with the advancement of technology and a mindset shift on how in-house legal teams operate, COVID-19 has catalysed further transformation of the profession. But will the adoption of the new methods of working brought on by the pandemic be short-lived? Or is the legal function 2.0 here to stay?
The evolution of the role of a lawyer against the backdrop of COVID-19 will continue to demand new and more varied skills than ever before. Beyond an up-to-date knowledge of the law, legal professionals will need to adopt even greater communication and influencing skills as they grapple to operate remotely. Together with a requirement to understand the business agenda, commercial considerations and change-management is now critical, along with legal teams’ ability to become much more flexible in their operational approach.
Konexo, a division of Eversheds Sutherland, is seeing these changes first-hand. Richard Hill, Head of Legal Resourcing at Konexo, has seen a steady rise for interim, ad hoc lawyers for a number years. Yet the surge in COVID-19 related work, and the need for parachuting such resource in to support teams has increased with Richard seeing a “300% increase in March alone due to clients wanting some flexibility to their workforce.” Begging the question on whether this model will remain long after COVID-19?
Disruption has happened very visibly and on a global scale across all sectors and businesses. Time will tell whether COVID-19 looks set to alter the profession as we know it.
LOVE UNDER LOCKDOWN
by Rebecca Christie, family law specialist at Hunters Law
Wedding season is almost upon us – but not as we know it.
I am sure that those due to get married in 2020 could never have imagined the situation that they would now be facing. Either their ‘big’ day will not be happening, or they will be considering whether to cancel.
Whilst the cancellation of weddings may have a damaging effect on the wedding services industry, there may also be financial implications for couples – beyond the cost of cancellation.
When a couple marry, they assume financial obligations to each other. If they divorce, the courts can make orders redistributing their assets, and for the payment of maintenance.
A vital consideration may be a pre-nuptial agreement, a contract between a couple proscribing how they would like the court to distribute their assets, if they separate.
Although not strictly binding in England and Wales, parties will be held to its terms if a court deems it to be fair.
In determining whether the parties should be held to its terms, there must be full disclosure of assets. The court will also look at whether it was willingly entered into, if its implications were fully understood, if each party would be able to meet their needs if they were to be held to it, and whether they had independent legal advice.
But what if you were set to marry during lockdown and your pre-nup has already been signed?
Pre-nups usually include a sunset clause stipulating that it will lapse if the marriage has not taken place by a certain date. This is to protect against a change in position, should there be a delay. Therefore, any pre-nup will need to be revisited to avoid the risk of the court attaching reduced weight to it. A vital consideration given the adverse effect that COVID–19 has had on the value of assets.
We do hope that this has been useful, fun and even interesting to read. Do send in your latest to fennell.edward@yahoo.com