Edward Fennell’s Legal Diary – Edition 10
Thursday May 28 2020 Lunchtime publication
REGISTER NOW: WEBINAR FROM HOGAN LOVELLS STARTING AT 1.00 PM TODAY
‘Who can start and join data class actions?’
Hogan Lovells’ second webinar in its data class actions webinar series is just about to start. It will be looking at how the GDPR kicks in when ‘data subjects’ – that’s people like you and me – believe the processing of their data has infringed their rights. But who can start and join data class actions?
Go to https://ehoganlovells.com/rv/ff0060055fd287cf18a685183043bf967fb5d990
Also access previous webinars in the series
Short thought of the week
With Slater + Gordon apparently abandoning their high profile, strategically placed office in Chancery Lane in favour of full-time remote working and the arrival in London of American outfit FisherBroyles which has been effectively office -free for almost two decades (see Appointment of the Week) the focus is now truly on the future of the office model as we have know it since the 1980s.
There is an echo here of the switch to LLP status some time back. At first a few small firms , barely heard of outside their own High Streets, opted for it. Mostly it was not taken seriously. But then came a gradual conversion followed by an avalanche of change as the benefits became clear and attitudes changed. So where will the tipping point lie for office occupation? The next six months or the next six years?
Legaldiarist
OUR CONTENT THIS WEEK
+ THE LEGAL DIARY
+ APPOINTMENT OF THE WEEK – THE ‘MAGNIFICENT SEVEN’ JOIN FISHERBROYLES
+ COMMENTARY OF THE WEEK – THE PLIGHT OF THE SURROGATE CHILD
+ ARTWORK OF THE WEEK – LAW FIRMS AS ART COLLECTORS
LEGAL DIARY OF THE WEEK
POST OFFICE – TURN YOUR RADIO ON!
We are now into the fourth day of BBC Radio 4’s excellent lunchtime investigatory series about the Post Office’s ruthless pursuit of sub-postmasters who were profoundly let down by the introduction of the (then) new Fujitsu HORIZON accounting system.
See The Great Post Office Trial https://www.bbc.co.uk/programmes/m000jfyv
Yeserday’s programme, featuring a graphic recording of the brutal interrogation of an entirely innocent female sub post mistress, was particularly shocking. According to the latest evidence it is believed that the Post Office brought over 1,000 prosecutions and racked up 900+ convictions of sub-postmasters and employees in the wake of the introduction of Horizon in 1999/2000. This contrasts with a mere five or six convictions per year before Horizon. Almost all the prosecutions were based on false readings given by the flawed IT system.
A major exercise in compensation and restitution is now due. However, according to Ron Warmington who ran the consultancy Second Sight which was brought in, ultimately, to investigate the scandal, this will be an enormous challenge. “How on earth the Criminal Cases Review Commission will be able to cope with reviewing a new tsunami of cases is beyond me,” he commented a few days ago. “Worse still, one can only guess how much public money has already been spent, over the past twenty years, on what must have been an appreciable percentage of the cases that our criminal courts were handling.
“I remain convinced that, had the Crown Prosecution Service been in the loop, most of those cases would have never made it to the court steps where many deals were struck. [The Post Office’s] ‘clever trick’ of using the criminal courts (rather than the hugely expensive civil ones) as a virtually free of charge (to them) way of bludgeoning money out of its Sub Post Masters has blown up in its face. Why did it take so many years – and so much money – for this to be disclosed?”
A good question indeed.
ARBITRATION RUBIK’S CUBE
Bryan Cave Leighton Paisner’s (BCLP) newly published Annual Arbitration Survey 2020: A right of appeal in International Arbitration has tested out in detail attitudes towards whether parties to arbitration should have the right to appeal a tribunal’s decision on the merits. In other words, the right to seek review of the award, simply because the decision that the tribunal has made is wrong.
The trouble is that it is hard to reconcile all the various elements on the interviewees’ wish-list (rather like achieving simultaneously lower taxes and better public services). It’ more like twisting a Rubik’s cube to get a consistent pattern – it can be done but it’s difficult.
For example71% of respondents said that a right of appeal would make international arbitration less attractive. Yet 51% of respondents felt that in some cases the consequences of an incorrect decision are so serious as to make the lack of an appeal mechanism unacceptable.
But as they say, you just can’t please all/some/any people.
OVER BUT NOT OUT FOR NIGEL RICHARDSON of HJA
One of the toughest areas of law to work in is sexual abuse. So after thirty five years one would imagine that Nigel Richardson, as Head of Crime at Hodge Jones & Allen Solicitors, would have had his fill. But while he is now standing down as a director of the firm and member of the management board he is not going away entirely. Instead he intends to remain as a consultant and, as the firm puts it, ‘maintain continuity in the work for which he has gained a formidable reputation’.
Richardson’s reputation is based not just on years of work in practise but equally significant on his seminal book ‘Sexual Offences – A Practitioner’s Guide’ (Richardson and Clark) which was first published in 2014 and is now being prepared for a second edition.
“Doing my job over the last 35 years hasn’t always been easy, but it’s always been something I have enjoyed,” he says. “What is important to me, and what I am left with after every case, is that I did my best to help someone during a difficult time of their lives, especially when other people around them may have been judgemental or hostile. I am grateful to have been recognised by my clients and also my peers for the sensitivity I have tried to show in my approach, and their kind words have left a lasting impression.”
So, the story continues.
LOCKDOWN BLUES IN COURT
The presumption that “We police by consent in Britain” is being examined to its core right now as the legitimacy of the Lockdown laws (or maybe ‘rules’ or ‘instructions’?) is being exposed to the Cummings effect.
Yet whatever is going on in the Court of Public Opinion there is still an important case about the Lockdown making its way through the real courts. Earlier this week (Tuesday 26th) High Court judge Mr Justice Swift ordered the Government to respond by June 12 to the legal challenge to the lockdown issued by businessman Simon Dolan. This date was set after Government lawyers had again asked for more time to prepare and respond following the formal launch of proceedings. The 17 days allowed to the Government than usual but the pace of changing attitudes on the streets probably makes this essential. “Such is the magnitude of our fight, we pushed hard for an earlier date. But true to form, the Government wants delay after delay,” says Dolan.
The Judicial Review will seek to challenge the Government on three main points:
- Whether lockdown is unlawful because the Government implemented regulations under the Public Health Act 1984 instead of the Civil Contingencies Act 2004 or the Coronavirus Act 2020.
- The legality of the continuation of lockdown, and whether the tests for lifting it are too narrow, failing to take account of the economic and social impacts of lockdown.
- Whether the restrictions brought in by the Government contravene the European Convention of Human Rights, which cover the right to liberty, family life, education and property.
These are big questions which might well have important answers if we go into a second spike. Whether Mr Dolan (who is represented by Michael Gardner of Wedlake Bell LLP and Francis Hoar of Field Court Chambers) will emerge as a hero remains to be seen.
Appointment of the week – The ‘Magnificent Seven’ Join Fisherbroyles
The appointment of seven new partners to the new and virtual office of US firm FisherBroyles in London this month could hardly be more apposite. At a time when many major law firms are trying to make a virtue of telling their lawyers to be homeward bound FisherBroyles can say that they have already been there, done that and are making a very good job of it – and that its seven new partner recruits need never worry about coming into the office ever again.
The seven new recruits – uniformly white males – are big gun-slingers. Between them Robert Boresta, Stephen Di Cioccio, Richard Flaggert, Daniel Larkin, Ben Lasserson, Andrew Webster and Thomas Wiesner have an impressive collection of ‘top-ranking law’ firms in their collective Curricula Vitae. These include major London names such as Freshfields, Withers and Pinsent Masons as well as elite US names including Cravath, Davis Polk and Sullivan and Cromwell. So they represent a major putting on of muscle to the London start-up operation bringing the total number of lawyer in London up to ten. But Rory Graham (formerly with Baker McKenzie), who joined in London a couple of months ago, is ambitious for more. “I think we can be up to twenty in London by Christmas,” he says.
Originally set up in 2002 in America to be lean and debt-free in the aftermath of the tech boom-and-bust the firm has grown through what it calls its ‘unique Law Firm 2.0® business model’ to have 230 partners in 23 locations all except London in the US.These locations are effectively geographical markets rather than offices and as Rory Graham (formerly with Bird & Bird), who joined in London a couple of months ago, puts it, “My laptop and I are the functioning unit.” So whereas other firms are grappling not just with the mechanics of WFH but also with massive overheads of rents, rates and multiple overheads of empty office blocks FisherBrolyes has no distractions from getting on with the job.
Unlike other challenger law firms where the lawyers operate effectively as self-employed sole-traders under an umbrella brand, the Managing Partner Michael Pierson, insists that the Fisher Broyles lawyers work in teams pretty much like conventional law firms – it is the absence of the physical ‘desks-and-dining room’ office infrastructure which makes the difference.
There is, however, one other major difference. The firm is not hiring associates – it is only interested in seasoned and experienced experts with partner backgrounds. “We leverage off each other,” says Michael Pierson, So no organic growth of the firm then? “There will be new ways of learning as well as working,” he says with emphasis. It will be interesting to see how it works out.
Commentary of the week
The plight of the surrogate child
There has been a lot of interest recently in the difficulties and joys of surrogacy. The Times’ T2 section ran a whole double page spread about it on Saturday last. That was a tale of happiness all round for a British-based couple and the surrogate. However it is not always that easy, legally and otherwise, says SARAH WOOD-HEATH (above) a family law partner at Clarke Willmott LLP who is an expert in surrogacy, donor conception and co-parenting agreements.
It is a sad fact that a lot of people who are trying to start a family via a surrogate in this country feel like they have no choice but to go abroad to complete the process.
In the UK it is very difficult to find a surrogate outside of your family and friendship group as commercial surrogacy arrangements are not legal. This means that you cannot pay someone to be your surrogate (only reasonable expenses). It also means you are unable to advertise that you are looking for a surrogate and a surrogate is unable to advertise themselves.
There is also no binding contract between the surrogate and the intended parents which leads to a lot of unnecessary anxiety and uncertainty on both sides. Furthermore, the surrogate (and her partner) are recognised as the legal parents of the child until the intended parents obtain a parental order from the Court following the birth.
For those who feel uncomfortable and vulnerable with the position in the UK or who don’t have a friend or family member willing to carry their baby the options are few and far between and so they look to foreign jurisdictions.
In a lot of foreign countries the rules are more relaxed, they allow commercial surrogacy and some have an established legal process recognising the intended parents as the legal parents at birth.
The USA is a popular surrogacy hotspot as commercial surrogacy is legal in most states but the high cost of the process here means it is often prohibitive to intended parents. As a result countries like Ukraine have become increasingly popular, where treatment is more affordable but there are less regulations.
There are advantages but also risks to choosing surrogacy abroad and it adds complications to an already difficult and stressful situation, not least having to obtain travel documents to get the baby home once it is born. I have had clients who have been stuck abroad for months after the birth of their child.
[Currently there has been high profile reporting of surrogate-born babies stuck in the Ukraine because of the corona crisis] Of course, nobody could foresee this current situation but it does bring into stark reality the existing concerns family lawyers have about both our system and the systems in other countries.
The Law Commission is currently reviewing our surrogacy laws which is a really welcome development and I hope that the system is updated to reflect modern family living and to help couples achieve their goals of starting a family as much as possible and make the path easier here in the UK.
We must remember that at the heart of this are parents who have usually been on a torrid and fraught journey of infertility to get to this point and who desperately want to grow their family. The anxiety of the intended parents whose babies are thousands of miles away must be phenomenal so I hope that the government will step in soon and class their journeys as essential travel so the families can be united.
Artwork of the week
Law firms as art collectors : this is the way to do it
By Catherine Shearn
In the aftermath of the C-virus there is bound to be a major debate about the role of ‘the office’ for law firms – indeed it has already started. People might be working from home more but there will still be – for most – the need for a physical base as an expression of a firm’s character and where special events – including meeting clients – can happen. All the more reason then to regard the office not just as a ‘legal factory’ but as a place of significance in which art can play a special role.
Art Advisor CATHERINE SHEARN has recently set up a starter collection of art for US law firm HAYNES AND BOONE’s office in London. She explains here what she looked for and how she selected it.
Visit any law firm around the City and its environs, the value and importance of art is evident in every reception. At one end there are sleek contemporary canvases and on the other rococo framed portraits of Senior Partners, long deceased. The art is, for many, the first visual encounter with the firm.
Where do these artworks come from and who buys them? Starting a collection may be daunting – there is too much choice and it can all seem pretty expensive.
However, the art communicates the business and the culture of the firm. The art collection is one of the most individual expressions a company has. Whatever you choose, you are reflecting the brand and the values of the firm. You may select daring work by young artists (try the end of year degree shows at the art schools), or considered works by established names (perhaps some works on paper by Barbara Hepworth). You may prefer an obvious expression of financial success (think Damien Hirst or Jeff Koons), or an understated abstract work by a respected contemporary painter (maybe Callum Innes or Alexis Harding).
I avoid the obvious: there are artists whose work pops up in every other collection in the City. Andy Warhol prints are great and relatively inexpensive, but their ubiquity reduces the impact. Seek out interesting works by well known artists, or find work by lesser known artists. No one wants to see the same image in every boardroom.
For Haynes and Boone, the budget was small, but we wanted something high impact. All works were sourced and installed for under £7500. We focussed on a few works in key areas, and plan to add more artworks each year.
The first choice was for the library area. The back wall is now host to a series of Ellsworth Kelly lithographs published by Editions Maeght in 1958. The American abstract painter spent several years in France in the late 1940s, and it was here he developed his abstract visual language, before going on to exhibit at Fondation Maeght in 1951.
Not only is the international element of the firm reflected via these lithographs, but they communicate a logical and confident approach to thinking. The initial impact is graphic and strong, but these pieces reveal more on consideration as the artist’s study of colour and form is ever intriguing.
Clearly enough to engage the interest of visitors and staff alike.
For more go to http://vertigoartprojects.com/
Look forward to seeing you again next week – send your stories and commentaries to
fennell.edward@yahoo.com