Edward Fennell’s Legal Diary – Edition 9

Short thought for the week

The debate has already started about the legitimacy of the restraints being put on all of us in our daily lives. But when the poster boy for the campaign is a former member of the Supreme Court with as a big a reputation for sheer intelligence as Jonathan Sumption this must give extra pause for thought.

Having taken a bashing in the Brexit campaign ‘experts’ were starting to come back into fashion. But as experts from different disciplines start to fall out maybe we will be back with the politicians having to take responsibility. Churchill famously said that scientists should be ‘on tap not on top’. But does the same apply to judges?


Finally, time for technology?

The big news this morning for anyone interested in how technology can serve the law came with the announcement of the ‘Lawtech Sandbox’ a government-backed lawtech R&D programme to be piloted by LawtechUK andaiming to help to help accelerate the digital transformation of the UK’s legal sector,

Plans were also announced for a UK SME Dispute Resolution Platform designed to deal with the £11.6bn paid in litigation fees and the £50bn of late payments arising each year. There will also be a lawtech online hub, guidance and training centre.

Although there has been much talk of such developments for years the C-Virus has brought into focus the big role that technology could play in the legal systems – although just how far justice can be delivered digitally remains to be seen.

“We are now able to deliver legal systems and services in ways and at a pace that were previously considered impossible,” says legal IT guru Richard Susskind, the President of the Society for Computers and a Lawtech Delivery Panel member. “LawtechUK is uniquely positioned to help drive this delivery.”

For more on LawtechUK go to https://technation.io/lawtechuk/

Internet of Hates

The problem of hate speech on the internet is not going away any time soon. As Dr Alexander Brown, Reader in Political and Legal Theory at the University of East Anglia puts it in his just-published study ‘Models of Governance of Online Hate Speech’ for the Council of Europe, “For some users the current Internet epoch can be considered the Internet of Hate which poses serious human rights concerns.”

Trying to get a grip on the problem is tough for Governments, however, both philosophically and practically not least because it involves all kinds of knotty questions over contradictions in expectations. “The European Court of Human Rights has drawn a connection between the issue of regulating hate speech and the weighing up of different human rights, including the human right to freedom of expression (Art. 10), the human right not to be discriminated against (Art. 14) and the human right to a private and family life,” says Brown. No surprise then that different countries across Europe and the wider word are going about it in different ways – and maybe with different motives (the Chinese example is particularly ‘interesting’!). The study identifies 30 indicators that could assess the success or progress of different governance tools for online hate speech and makes many practical recommendations covering ten key areas. If you are interested in how to build an international consensus on kicking hate off the internet then this report is worth reading.

For more see https://rm.coe.int/models-of-governance-of-online-hate-speech/16809e671d

Safeguarding Family Lawyers

This time last year, around about Mental Health Week, the Legal Professions Wellbeing Taskforce published “Anxiety and Wellbeing Amongst Junior Lawyers: A Research Study” led by Professor Richard Collier. It made pretty grim reading about the level of stress among younger lawyers. This year things may well be even worse and it is incumbent on law firms to back up their staff (see the Clyde & Co. story below). But family lawyers dealing with emotional clients and complex situations are in need of special help – again more so now than ever. So it is worth being aware of the Family Law in Partnership Faculty’s Diploma in Family Law Supervision – believed to be the first of its kind in the UK. “The course teaches participants how to supervise and support other family practitioners to deal with stressful situations in the workplace with a view to promoting mental health wellbeing,” says FliP. “The diploma is open to all professionals involved in the family justice system. It is hoped that family practitioners leave the diploma in family law supervision feeling they are equipped with the tools they need to cope with and manage the demands of clients undergoing family breakdown.”

For more go to https://www.flipfaculty.org/courses/diploma-in-family-law-supervision/

Spanish Practices

I never expected the Spanish Inquisition but, if they were to turn up, I expect they would come in the form of Del Canto Chambers of whom until this week, I confess, I knew nothing. (Confessing to the Spanish Inquisition always being a good idea).

Actually, as a London-basedset of tax lawyers dual-qualified in Spain and England and regulated by the Bar Standards Board in England and the Madrid Bar in Spain, Del Canto seems to be rather well-placed right now as Brexit starts to regain traction. That is why, no doubt, their team of abogados and abogardas is expanding with the recruitment of Josep Galvez a former judge in chancery and civil matters, who specializes in litigation and arbitration. Josep has plenty of experience in cross-border disputes and handling multi-jurisdictional teams as well as being an International Private law Professor at the University of Barcelona. So he may well be in demand as we begin to obsess about those pesky cliff-edge negotiations. Just don’t mention Gibraltar.

For more see https://delcantochambers.com/

Appointment of the week

Louise Workman, Chief Executive Officer, Ashfords LLP

With the world turned upside down there is much discussion about the desirability of moving out of London and away from City law firms to the saner environment of regional life. In fact, BBC Radio 4 devoted a whole programme on Monday to the theme of ‘provincial’ being the new cool.

Louise Workman could well be ‘the face’ for such a move. Having trained at Norton Rose and spent five years in the corporate finance department there she moved to Berwin Leighton Paisner LLP (now BCLP) where she was a Partner for 10 years and headed its retail sector group.

But a decade ago she decided to go south-west and joined the corporate team at Ashfords LLP in Exeter and in due course moved to head up Client Services. Two years ago became a member of the firm’s management board and earlier this month she was elected the new Chief Executive.

“We are delighted that Louise is taking up the mantle of CEO at our firm,” said. Mark Lomas, Partner and Chair of Ashford. “Her knowledge, experience and prowess in legal business development strategy, her strengths in client service, the law and business make her an excellent fit for the role. She embodies the collegiate approach and the changes that we have been fostering across the firm.”

Ashfords now has a London office as well as its five offices in the south-west but it operates nationally and is clearly heading upwards with a lot invested in the firm’s client service quality standard “Ashford Expects”. Its website is packed full of useful Covid advice right now plus details of its numerous community activities down in the peninsular.

For more on Ashfords go to https://www.ashfords.co.uk/about-us

Commentary of the week – the Easyjet hack

The Legal Diary was overwhelmed by the volume of comments about the news that nine million EasyJet customers had their travel details hacked. Here are some of the choicest observations:

“With the travel industry already facing mounting criticism as thousands of customers struggle to receive refunds in the wake of the coronavirus pandemic, news that nine million EasyJet customers have had their personal information exposed is another damaging blow to the airline.

“The exact size of the fine [Easyjet is likely to face] will become clear as more details are revealed. However, in accordance with the GDPR, the airline could face a penalty of up to 4% of its annual worldwide turnover of the preceding financial year.”

Or, how much better it would be if the penalty were to be based on THIS year’s much reduced turnover!

Aman Johal, Lawyer and Director of Your Lawyers

We suspect the fact that limited credit card details were taken indicates that EasyJet’s security systems were effective. This may indicate that the attackers were also limited by what they could collect as the number of booking have plummeted in light of the COVID-19 pandemic.”

In other words an aviation shut-down was not the best timing for an airline heist.

Joe Hancock, Partner and head of MDR Cyber

This is the new world. Unless companies raise their game, these sorts of crimes will begin to happen daily. Businesses cannot just rely on the authorities to prosecute individuals who perpetrate cyberattacks. They must take greater responsibility for detecting and preventing such attacks in the first place, thereby protecting the data of their customers and clients.”

Or, how about locking the windows and bolting doors when you live in a bad neighbourhood?

Bambos Tsiattalou, Partner, Stokoe Partnership Solicitors

“When businesses hold personal information; such as email addresses, credit card details; and in this case, travel plans – there is a certain legal obligation to protect that information. The Information Commissioner’s Office (ICO) has the power to impose a large fine for a breach of this type. However, it cannot award compensation to victims of a data breach – which means that people who are affected must find alternative ways to seek compensation.”

In other words, it’s time you got a lawyer.

Paul Cahill, Data Breach Solicitor, Fletchers Data Claims

Pro bono/CSR initiative of the week

Clyde & Co Partnership with the ‘perspective project’

Clyde’s St. Botolph building

With ‘kindness’ the theme of this year’s Mental Health Awareness Week (happening right now) Clyde & Co. has announced that it is re-jigging its annual Art Award programme so as to focus on those whose lives have been affected by mental health issues.

Operating for the past ten years, the programme provides exhibition opportunities within the firm’s offices in London for 40-50 participants so that they can both display and sell their work. In addition the firm offers advice and guidance on the legal and commercial aspects of the art business.

Having built strong relationships with London art colleges the firm has now decided to pivot towards the ‘Perspective Project’, a charity which tackles the stigma of mental health through art and creativity. ‘Perspective’ offers an open invitation to anyone with mental health issues to enter art works either under their own names or anonymously. They also welcome factual accounts, videos and creative writing (both poetry and prose). These works are then put on the project’s website.

The partnership with Clyde & Co. will now enable the display of a carefully selected group of work in the firm’s headquarters in the St Botolph Building. They will also be promoted through the firm’s intranet and other digital channels. “We want to keep the work as eclectic as possible but also accessible in terms of scale so as to encourage the possibility of purchasing,” says Andy Dent, the firm’s Global Head of Corporate Responsibility and Inclusion. “So we look forward to working with Prospective Project, who do such important work in providing a therapeutic outlet to those affected by mental health conditions and highlighting different perspectives on mental health.”

Clyde & Co has been one of the most important law firm collaborators with London arts schools in recent years but its change of direction reflects the growing priority of mental health issues. It will also open out more space for work with local schools and with other campaigning opportunities. Meanwhile, explains Andy Dent, the firm has been working hard during the lockdown to support its own WFH staff deal with their own mental health issues. A variety of mental health training materials have been produced and a webinar was held earlier this week which attracted 180 participants.

For more on the Perspective Project go to https://www.theperspectiveproject.co.uk/us

For more on this week’s Mental health Awareness week go to https://www.mentalhealth.org.uk/campaigns/mental-health-awareness-week

Covid-19 query of the week – the impact on enterprise management incentives

The Government’s well-intentioned but rushed attempts to mitigate the impact of the C-Virus have created a number of anomalies.

Here SUE CRAWFORD, head of the Tax Group at Wiggin LLP, looks at the challenges (and opportunities) that arise for share incentive schemes particularly Enterprise Management Incentives (EMI tax advantaged) plans in the time of Covid.

Under EMI, employees are required to spend at least 25 hours per week or, if less, 75% of their working time on the company’s business. Furloughing employees may technically disqualify options: they are required NOT to work. But, under HMRC’s existing guidance, one considers average working time. Arguably the 75% working time requirement should be met by furloughed employees provided they do not take on a second job or other paid work while furloughed. HMRC are expected to provide clarification soon.

If existing options are “under water”a company might consider cancelling old options, and awarding new options at the new lower value. EMI shares are eligible for the Entrepreneur’s Relief capital gains tax reduced rate of 10%, provided 2 years elapses between option and the date option shares are sold: granting new options starts the 2-year clock again. If a medium-term exit is possible, this lost tax break may outweigh the exercise price arbitrage.

EMI plans limit the value of options that can be granted. Drops in share value may allow further qualifying grants (at lower prices) without breaching limits. If employees hold non tax-advantaged options (e.g. previous limits exceeded), a company could consider a more tax efficient surrender and re-grant. If current performance conditions are no longer attainable, the relevant awards may not incentivise employees. But fresh grants or amendments to existing EMI options to recalibrate need care to ensure tax breaks are retained.

Artwork of the week

Taylor Wessing with the National Portrait Gallery

Taylor Wessing is well known for its long-standing Photographic Portrait Prize sponsorship held in conjunction with the National Portrait Gallery and often regarded as the world’s leading event of its kind.

But now, in the context of the C-Virus, the firm has built on that relationship to support an innovative project titled HOLD STILL which aims to capture through photography “the spirit, the mood, the hopes, the fears and the feelings of the nation as we continue to deal with the Coronavirus outbreak.”

Aimee Gould – Nurse

HOLD STILL was launched by the Duchess of Cambridge earlier this month and members of the British public will be able to submit photographs documenting their experiences of life in lockdown until June 18th . One hundred shortlisted portraits will then feature in a virtual exhibition on the National Portrait Gallery’s website and a selection of images will also be shown across the UK later in the year.

The project will focus on three core themes – Helpers and Heroes; Your New Normal; and Acts of Kindness  – and participants are encouraged to provide a short written submission to outline the experiences and emotions of those depicted in their photograph.

Potentially the entries collectively could create a popular archive of images of what is has been like to live through the current emergency turning the fear, the stress and the celebration into art.

“We’re thrilled to be able to support Hold Still,” said Shane Gleghorn | Managing Partner, Taylor Wessing. “It’s a privilege to be part of such an accessible project that we feel sure will capture everyone’s hearts and imaginations, bringing us all closer together in these extraordinary circumstances. Creativity is such an important part of our culture. It plays a central role in helping us to understand different perspectives, so it’s a pleasure to support this project which will enable people to use their photographs to connect and share their stories.”

For more and to enter go to http://www.npg.org.uk/holdstill

LexFlic of the Week

Following the story about Louise Workman taking over at Ashfords LLP (above) we checked out the firm’s extensive video library. The latest offering was a ‘Virtual Tea Break’ on equity release whoch went live earlier this month. Was this a superbly subtle, perfectly-crafted exercise in mock amateurism or was it a totally unpretentious ‘Yeah, let’s just do it’ lash-up. Decide for yourself at