Edward Fennell’s LEGAL DIARY

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

April 26 2024

Editorial contact: fennell.edward@yahoo.com

Yes, it’s World Intellectual Property Day (image above) and all over the world intellectuals everywhere are partying like there’s no tomorrow. Just as a timely illustration of the muscle power behind intellectual property a rip-off merchant in Shanghai, Pandabuy, was raided a few days ago and millions of fake products from over 200 brands were discovered. Definitely a result.

For those who don’t quite remember that far back, today’s date marks the point in 1970 when the Convention establishing the World Intellectual Property Organization was brought into place. So note how far we have come. It is very unlikely that in the midst of the cultural revolution in China in the 1970’s that any young Red Guards would have anticipated a raid on a rip-off bourgeois luxury goods outfit fifty years later.

“World Intellectual Property Day is never going to top the list when it comes to dates of note for legal professionals,” admits Corsearch, a provider of brand and IP protection tools, “However, by acting effectively to protect and enforce intellectual property rights, in-house legal professionals play a pivotal role in not only securing the future prosperity of their organisations, but also fostering an environment conducive to innovation and competition in the market as a whole.”

Just hope that the GenAI entrepreneurs are listening.

The Legal Diarist

In this edition

New IP Technology Categories for SDGs

Quinn Emmanuel Gets Its Boots on the Ground in Saudi

London Lawyers Debate ‘Inspiring Inclusion’

WEEKLY LEGAL AI REPORT: OPUS2 Opens up with its AI Labs

+ CONTRIBUTED ARTICLES OF THE WEEK

All Bar None? Legal Regulators and Public Perception by Ian Busby

The truth about countering counterfeit goods by Angela Williams

Saying Sorry – Legislating for Apologies by Dr Jeffrey Wale

on third party litigation funding, AI partnerships, Lawrence Fox’s latest adventures, the Renters Reform |Bill and bank account cancellations

at STOKOE PARTNERSHIP SOLICITORS and SA LAW

New IP Technology Categories for SDGs

To coincide with World IP Day LexisNexis® Intellectual Property Solutions (the only patent data provider linking global patent data with the United Nations’ Sustainable Development Goals) is publishing a list of 100 distinct sustainable technology categories – spanning everything from renewable energy through agriculture to medical devices – as a comprehensive overview of the role of innovations and intellectual property in promoting sustainable development globally. Titled Mapping Innovations: Patents and the Sustainable Development Goal” the report analyzes global patent trends mapped to the UN’s SDGs.

“We are honored to collaborate with WIPO on this significant report demonstrating the crucial role of patents and IP in enabling innovations for global sustainability,” said Marco Richter, Head of Global Customer Success, LexisNexis® Intellectual Property Solutions. “Our goal was to create a patent mapping methodology that provides tangible insights into how emerging technologies can accelerate progress on the UN’s 2030 sustainable development agenda and which corporations and academic institutions are at the forefront of driving this progress.”

Taking advantage of the LexisNexis ‘Ultimate Owner’ concept, which assigns every patent to its highest controlling legal entity, the report provides a view of the top 25 leading entities driving SDG-related innovation in key global markets.

No great surprise, probably, to see German-based companies dominating the rankings. But no doubt UK-based IP lawyers would like to see a few more home-grown participants.

The full report can be accessed via: https://www.lexisnexisip.com/sdg

Quinn Emmanuel Gets Its Boots on the Ground in Saudi

Whatever its difficulties and controversies the Middle East area is essential for any major law firm with global ambition. So no great surprise then that as part of that process Quinn Emanuel Urquhart & Sullivan LLP announced this week that it has secured a licence to practice law in the Kingdom of Saudi Arabia (KSA). This follows its association in 2022 with local firm Alrubayyi & Attorneys and the firm will be operating in KSA through a Saudi professional company. This is the fourth office in the Middle East with the firm already located in Abu Dhabi, Dubai and Doha.

Saudi Arabia has invested billions into diversifying its economy and encouraging international investment and has been a key regional focus for us for some time,” commented Quinn Emanuel founder John B. Quinn. “Our commitment to the KSA alongside the launch last year of offices in Abu Dhabi and Dubai is a direct response to local and international client demand. We intend to keep our foot on the accelerator and build out a powerful litigation presence across the region.”

Quinn Emanuel’s expressed aim is to become the number one litigation law firm in the KSA and the wider Middle East region. “Quinn Emanuel’s reputation for being the premier global disputes firm is built upon having the best local lawyers on the ground and the combined proposition is very exciting for us here in Riyadh and beyond,” commented the high-profile Saudi litigator Nasser Alrubayyi who will manage the office.

London Lawyers Debate ‘Inspiring Inclusion’

With the news out this week that the pay gap between male and female barristers now starts to open out within a couple of years of qualification it is worth recapping on a discussion earlier this month, inspired by International Womens Day.

On the theme of ‘Inspiring Inclusion – a systemic perspective of female litigators’, the online event brought together representatives from the London Solicitors Litigation Association (LSLA), Fountain Court and Client Talk as well as the judiciary in a lively, wide ranging discussion.

According to Anneliese Day KC of Fountain Court Chambers, “At the highest appellate level, we’re actually seeing the number of lead counsel who are women going down, which should not be happening. We need to think about the factors leading to those decisions, and how we can give people access to more choice. People don’t do this deliberately, but it does happen.”

There was agreement on the need for role models from the top to make senior positions more appealing to women. According to Nikki Edwards, partner at Howard Kennedy and President of the LSLA, women often start their careers in equal numbers to men in the ambition to achieve partnership but this changes by the time they have had seven or eight years experience.

A key issue was child care. Part of the problem is the conservative nature of the legal sector which actually prevents important dialogues from taking place. By contrast in the tech sector, for example, discussions around shared parental leave are much more open. “We need to see this kind of openness in law firms,” commented one contributor.

Another problematic issue was the 24/7 on-call culture within the law. “Clients have a role in setting expectations to make sure no one’s working all hours on anything that isn’t truly urgent,” said Nina Best, GC of Delinian. So mutual support from peers and also from male allies was vital. “There wasn’t much direct sexism,” said Mrs Justice Cockerill. ”It was more that I was operating in a world where I had no comfort zone and everybody else seemed to have one.”

WEEKLY LEGAL AI REPORT: OPUS2 Opens up with its AI Labs

The battle for AI-based technology dominance is certainly heating up. Following announcements in recent weeks by other suppliers Opus 2, the legal software and services supplier, unveiled this week AI Labs, a program that invites clients to get an inside look at AI tools within the company’s case management software and take an active role in the development process.

“I had the chance to see a demonstration of the Opus 2 generative AI intended integration,” said Caroline Sweeney, Director of Knowledge Management and Innovation at Dorsey. “I was thrilled to see their approach on how attorneys can leverage generative AI to work with key documents and build their case story. This is going to be revolutionary, and we are excited to be signed up to work with them as they get ready to roll this functionality out to users.”

In common with others, the Opus 2 approach to AI focuses on delivering solutions that automate lower-value, labour-intensive tasks to help lawyers ‘work smarter and more efficiently’.

“We’re fortunate to count the world’s leading legal innovators as clients. Over the years, their perspectives, input, and support have been essential to our success,” said Raymond Bentinck, Chief Product Officer at Opus 2. “As with all our solutions, we’re committed to building AI capabilities that deliver long-term value and solve real challenges facing legal teams. We’re excited that AI Labs gives us the opportunity to partner with our clients again as we continue to design, develop, and deliver industry-leading solutions.”

Sign up now? Learn more at opus2.com.

All Bar None? Legal Regulators and Public Perception

by Ian Busby

Our recent Fieldfisher report into enforcement at the Bar Standards Board has raised again the challenges of how legal regulators’ enforcement work is perceived by the public.

Legal regulators, entrusted with enforcing a code of conduct in the public interest, often find themselves in a paradoxical position. While their work is essential for maintaining ethical standards within the legal profession, they frequently encounter a lack of appreciation from individual members of the public, and indeed members of the profession, who provide information about the conduct of lawyers.

There are a number of reasons why this paradox is challenging to resolve.

The Invisible Guardians”

Enforcement investigations operate behind the scenes and this work rarely attracts public attention or accolades. Unlike the visible drama of courtroom battles, regulatory actions unfold quietly and confidentially until a point where disciplinary action is warranted. And tribunal case reporting tends to be in the legal rather than mainstream press so the outcomes of enforcement may also be under-appreciated.

Misunderstanding of the Role

The Legal Services Act sets out eight regulatory objectives for legal regulators including promoting the interests of consumers. The Legal Services Board says this “does not create obligations in relation to individual consumers” . However, members of the public often perceive regulators as complaint resolution bodies. So, whilst Regulators collect information from reporters to build cases against lawyers or legal firms, their focus lies in systemic improvement rather than individual redress.

Balancing Public Interest and Professional Reputation

Regulators must also strike a balance between protecting the public interest and safeguarding the interests of individual lawyers. Investigating allegations can harm a lawyer’s standing, even if the outcome is in their favour. So Regulators must tread carefully to fulfil their statutory obligations and yet avoid unfairly tarnishing professional reputations.

Communicating Complexity

Public impatience often stems from a lack of awareness about the rigorous standards required for regulatory decisions. Legal processes are intricate, and investigations take time. So Regulators struggle to convey that their actions serve the greater good, even when individuals who provide information to them don’t see immediate results. The obligation to obtain documents, statements and expert opinion can delay outcomes, leading to frustration among complainants.

Is Better Transparency the Answer?

Legal regulators need to work out how best to de-mystify their investigations and enforcement processes for the wider public. More transparent communication about investigations, outcomes, and the rationale behind decisions can bridge the gap. And public education campaigns can help dispel misconceptions and foster understanding, and the challenge is one of how best to reach out directly to that element of the community that is using legal services.

In any event, legal regulators face an uphill battle: enforcing standards while navigating public ignorance and misconceptions. Their work remains vital for maintaining the integrity of the legal profession, even if it is in fact under-valued by many whose interests it exists to protect.

To see the report in full go to: https://www.barstandardsboard.org.uk/static/6845a7e5-3188-4c21-821fbb75d841e33c/Final-Report-publication-format-April-2024-11559042415-2.pdf

Ian Busby specialises in optimising organisational design and performance improvement. He is a former Deloitte consulting partner.

The truth about countering counterfeit goods by Angela Williams

Counterfeit products could breach CSRD regulation: So what are the risks and opportunities for businesses?

The Corporate Sustainability Reporting Directive (CSRD) heralds a significant shift in ESG regulation, compelling companies to assume greater responsibility for the health and safety of their customers within their reporting. However, in-house counsel may not realise that counterfeit goods also fall under this remit.

Fake goods pose tangible physical dangers to consumers, with a study conducted by the European Union Intellectual Property Office revealing that up to 97% of counterfeits pose a serious risk1. For example, the UK government recently issued a warning to healthcare professionals and consumers alerting them to the risks of counterfeit anti-choking devices imitating LifeVac and Dechoker products2. These devices are intended to resolve choking incidents, however, they are not subject to the same safety checks as authentic items, are poor in quality and ultimately unsafe. In the worst-case scenario, these goods can inflict fatal consequences.

For in-house counsel, the immediate risks of non-compliance are clear; from jeopardising public safety to the potential legal and financial penalties. The adverse effects of counterfeits on businesses’ brands should be enough reason to take them seriously. A brand compromised by fake goods risks its reputation, sales turnover and the years of trust it has built with customers. Take the Royal Mail: in the space of a few days, it has seen its reputation tarnished amid a fake stamp scandal that has drawn global attention and provoked public outrage.

The timely arrival of the CSRD is as an opportunity for businesses to get on top of counterfeit goods and tackle them head-on. Platforms like Corsearch are on hand to assist in this effort. Its AI-driven tools can swiftly pinpoint counterfeits, achieving an impressive 99% compliance rate for removal. Leveraging these solutions is an astute way for businesses to combat counterfeits and ensure effective compliance.

Proactively monitoring for counterfeit goods online and removing them from sale is a genuine chance for companies to improve ESG records, protect their brands and put customers first. Taking the right trajectory is key. The next steps for in-house counsel should include clarifying the actions they are taking to manage the impact of counterfeit goods, identifying metrics to track and report progress and having a clear plan in place to produce comprehensive disclosures.

Angela Williams is Chief People Officer and ESG Lead, Corsearch

Which Fakes are more likely to be Dangerous? | Dangerous Fakes : Trade in Counterfeit Goods that Pose Health, Safety and Environmental Risks | OECD iLibrary (oecd-ilibrary.org)

https://www.gov.uk/drug-device-alerts/counterfeits-and-unbranded-copies-of-lifevac-anti-choking-devices-may-fail-to-work-correctly-or-worsen-choking-incidents-if-used-dsi-slash-2024-slash-003

Angela Williams is Chief People Officer and ESG Lead, Corsearch

Saying Sorry – Legislating for Apologies by Dr Jeffrey Wale

While there is a vital role for monetary compensation in legal disputes, the value of an apology should not be overlooked. An early apology can help reduce tension between parties to a legal dispute. Equally an apology that is forced, lacks empathy or is unwanted may do more harm than good. There is already statutory recognition of the value of an apology: in England and Wales via the Compensation Act 2006, and in Scotland, via the Apologies (Scotland) Act 2016. The Ministry of Justice has announced a consultation on the legislative framework in England and Wales, reviewing (i) the need for a statutory definition of an apology; (ii) the application of apologies in different civil proceedings; (iii) the extension of apologies to vicarious liability scenarios and (iv) non-legislative action to improve awareness of apologies.

The existing provision in the Compensation Act 2006 is relatively straightforward: ‘(a)n apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty’ (section 2). The explicit extension of this section to vicarious liability could help put to rest any doubt about the use of apologies in historical abuse claims. The Scottish legal framework offers a clearer definition of apology (section 3) and scope (section 2); as well as addressing the application of apologies (made outside of proceedings) inside of legal proceedings. The Scottish Act explicitly addresses questions of admissibility and prejudice (section 1).

It may not always be possible for parties to unravel the interconnection between an apology and an admission of fault. Other times, a party may feel responsible for the harm suffered by another but be subject to factors outside of their direct control. Different legal or evidential burdens and standards of proof may be at play in related regulatory investigations and proceedings. There may be complex insurance arrangements to navigate that make the pathway to making an apology (with or without an admission of liability) difficult. An admission of fault may be required by more than one party to a dispute. Expert evidence may be required to unravel complex issues before any apology, or an admission is offered. We may be able to learn from clinical disputes, with distinctive arrangements and statutory frameworks that speak to the need for candour. Ultimately, the consultation will need to examine whether changes to the existing frameworks will make any significant difference to the incidence and use of apologies in practice.

Dr Jeffrey Wale is Technical Director, Forum of Insurance Lawyers


TOPIC: Following the news that the Civil Justice Council has embarked on a significant review of third-party civil litigation funding in response to a request from the Lord Chancellor

COMMENT BY: Martyn Day, Co-President of The Collective Redress Lawyers Association (CORLA).

The CJC review will be the first attempt for more than two decades to consider the role, purpose, and effectiveness of the arrangements around third party litigation funding in the UK.”

At CORLA we welcome the review and will be making the case for third party funding to be embedded into the civil litigation landscape. We will encourage the review to carefully consider the pitfalls of ‘over regulating’ the sector and the inherent dangers of artificially limiting the remuneration available to funders. At CORLA we believe expanding access to justice through the availability of funding is in the interests of everyone, save for the corporate behemoths. Collective actions are a proven tool for achieving just that.”

TOPIC:  The CMA’s decision to canvass views on AI partnerships between Microsoft and Mistral AI, and Amazon and Anthropic and other arrangements,  

COMMENT BY: Alex Haffner, competition partner at Fladgate

The announcement by the CMA is a ‘preliminary’ one – it is seeking views on whether it should consider Microsoft’s recent corporate AI activity further using the CMA’s merger control powers. Nonetheless, it is noteworthy in several respects. Firstly, coming against several recent announcements by CMA (in tandem with its counterparts in other jurisdictions, particularly the EU and US) that further regulatory oversight of the fast moving AI sector is required to ensure that competition is preserved. Second, is the fact that the CMA appears to be looking at several different corporate events involving Microsoft together – whereas ordinarily it would be expected to consider each in turn. Thirdly and finally, the CMA is already formally investigating Microsoft’s role in the Open AI project. This latest announcement calls into question where it has got to in that process and how it will in turn be impacted by today’s events.”

TOPIC: Mrs Justice Collins Rice’s rulingin the High Court that high profile actor Lawrence Fox had defamed two men by calling them paedophiles after they labelled him a racist and the instruction that he pay both of them £90,000 in damages

COMMENT BY: Andrew Willan, Partner at Payne Hicks Beach

“The case provides a strong signal that the courts will be prepared to award significant damages for libel where serious allegations are published via social media. Bucking the trend of other more modest awards in other libel cases arising out of social media posts, the judgment provides an illustration of the intensely fact-specific exercise that the courts will undertake in determining, for example, the extent of the victimisation or distress inflicted and the reputational harm caused.

In this case, the harm caused was found to have been exacerbated by matters such as the horror of the public ordeal that the claimants were thrown into and their own vulnerability to abuse stemming from their national profile on LGBTQ+ issues. The judgment serves as a reminder that where serious libels are published, there are likely to be serious financial consequences.  In addition to the liability for damages, a losing party in a libel claim will usually have to pay the legal costs of the winning party, which will make even these figures seem modest.”

TOPIC: The Renters Reform Bill which passed through Parliament this week

COMMENT BY: Gary Scott, specialist in property disputes and partner, Spector Constant & Williams

Despite criticism from some sectors, the Government has added an amendment to the Bill to ensure that so called ‘no-fault’ evictions will not end until the Court System can cope with the newly proposed system.

This is an essential practical step which would otherwise mean the Court system as it stands would be completely overwhelmed with the vast number of new claims which it would be required to handle. The result would be a complete breakdown of the system. It is already taking up to a year to process a straightforward possession claim. Adding thousands more cases will break the current system.

Court reform was always said to be a prerequisite to this change and it should be no surprise that this amendment has been added. It is, however, disappointing that there has been no announcement of a timeframe or any indication of the steps being taken toward such court reform.”

TOPIC: The banks’ de-banking of individuals’ accounts

COMMENT BY: John Binns, partner and financial crime expert. BCL Solicitors 

“It may well be right that most account closures are due to banks’ ‘concerns’ about financial crime or due diligence. But this does not mean that most of those account holders are criminals, or that we can afford to be relaxed about their plight.

“The very real risk here is that anti-money laundering rules do more harm than good. They cast the net very wide, by effectively requiring closures on a very low threshold of suspicion. And they also swamp the system with safety-first and largely valueless reports, which law enforcement aren’t equipped to sift through.

“No one would design a system from scratch that did so much harm to innocent account holders while it lets sophisticated criminals through the net. But that’s how global anti-money laundering has evolved, and it’s hard to know how we can reverse course now.”

STOKOE PARTNERSHIP SOLICITORS


Jarret Brown has been appointed as the new Head of Compliance  at criminal defence and litigation boutique law firm, Stokoe Partnership Solicitors (described as ‘tough and fearless, one of the top defence firms in the country’ by The Legal 500). He joins the firm from Mishcon de Reya where he was head of risk having been a partner since 1996.He is experienced in ensuring that law firms meet all their obligations to the Solicitors Regulation Authority and act in line with their code of conduct, whilst maintaining a commercial outlook.

 Brown’s experience is built on years of acting on both sides of the insurer/claimant divide for lenders, property investors and professional indemnity insurers. As well as the compliance function at Stokoe he will continue in a fee earning role. 

“Jarret brings with him deep expertise and understanding of the compliance burdens for law firms in the current environment, which are of more importance than eve,” commented Bambos Tsiattalou, the .Founding Partner of Stokoe Partnership Solicitors. “He is a strong addition to our team and we are delighted to welcome him.

SA LAW

 Tracy Lacey-Smith has been appointed as Joint Managing Partner at SA Law, the St. Albans and London-based firm. She originally joined the firm as a Partner in 2007 and has been the Joint Head of the firm’s Commercial Litigation & Dispute Resolution team. She will now jointly manage the firm alongside the founding and current Managing Partner Steve Ryan, who has led the firm for 19 years. They will work closely together to steer the strategic direction of the firm. 

In recent years Lacey-Smith has driven efforts to enhance the firm’s culture, processes, and sustainability. Most recently, she spearheaded the firm’s efforts to reduce its carbon footprint by introducing greener business operations. The firm is working towards achieving B-Corp accreditation later this year. She has also been behind the digital transformation of the firm, with the introduction of a new relationship management system. In addition, over the past three years, the firm has introduced an active Equality, Diversity and Inclusion group which has been instrumental in the firm becoming an accredited Disability Confident employer.