Edward Fennell’s LEGAL DIARY

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

July 14 2023

Editorial contact: fennell.edward@yahoo.com

Short Thought for the Week: Nothing to See Here?

The original BBC logo dating from 1963 – just two years after Huw Edwards was born

The Huw Edwards affair, which had dominated the news headline during the past week, is an unedifying series of incidents. As of now, it looks as if no-one will come out of it well – including the BBC Newsroom which seemed to be pursuing its own navel-gazing and narcissistic agenda oblivious of the other news-worthy stories happening in the wider world.

Where the law stood in all this appeared to fluctuate from day to day. At one point it seemed that ‘breaking the law’ was the acid test of the seriousness of the case. Later it was all about ‘reputational damage’. As Adam Boulton, a former political editor at Sky News, commented, “A lot of careers ended a long way short of criminality because it was felt that they were bringing the organisation, which they represented, into disrepute.”

Some celebrities can weather the storm while others are crushed by it. Indeed, on the other side of town Kevin Spacey is facing twelve charges of sexual assault in a real courtroom and for him the reputational damage has already been devastating. Just how far Spacey or Edwards can resurrect their careers will say a lot about the status of the law in the court of public opinion.

The LegalDiarist

In This Week’s Edition

+ LEGAL DIARY OF THE WEEK

– AI Mismatch – Blame Human Error

– A&O Leads on AI

– Legal Tech: Even harder than it looks

– Lawyer Enters Golfing Folklore

+ LEGAL COMMENT OF THE WEEK

on the Barclays ‘push payment’ fraud case,the diversity of the judiciary, Thames Water, the MTC/ Microsoft case.

+ LEGAL APPOINTMENTS OF THE WEEK

at BRICK COURT CHAMBERS

+ E-VENTS

LEGAL DIARY OF THE WEEK

AI Mismatch – Blame Human Error

Are we all on the same page? Image courtesy of LexisNexis

Week after week there is another mind-blowing report or predication on what’s happening with AI. The latest in law comes from LexisNexis Legal & Professional® with “Generative AI and the future of the legal profession”, a report which which highlights a disconnect between in-house counsels’ and law firms’ expectation of generative AI adoption.

The figures are striking with around half of in-house counsel expecting their law firms to be using generative AI in the next 12 months – with 11% anticipating that their legal advisers are already using the technology. Only 8% didn’t want AI used on their work. That clashes, however, with the external lawyers on the other side of the fence with fully a quarter of firms thinking, mistakenly, that their clients would not want them to use AI.

Not surprisingly there are anxieties about the naive or premature adoption of AI in legal processes. As Alison Rees-Blanchard, head of TMT legal guidance at LexisNexis, points out, “When freely available AI tools don’t have access to the relevant data, they have a tendency to make up the answers, or hallucinate. This means any generated output must be checked thoroughly.  However, a closed data source means that hallucinations will be easier to identify, as verification of the output is made easier.” 

LexisNexis itself has recently announced the commercial preview of Lexis+AI which will bring powerful ‘conversational search’ to complex legal research and, with generative document drafting, will guide users through the legal drafting process with citations that link directly to LexisNexis content. Impressive.

To see the report go to:
here: https://www.lexisnexis.co.uk/research-and-reports/generative-ai-and-the-legal-profession-report.html

A&O Leads on AI

Continuing on the theme of AI it was striking that in the annual report issued by Allen & Overy this week – ahead it must be added of its intended merger with Shearman & Sterling – it was pointed out that A&O is the only law firm in the world – and one of the few firms of any sort – that has rolled out GPT-4 across its entire business.

“Harvey, the generative AI tool, is now used by 3,500 of its lawyers and business teams, across 43 countries, in their day-to-day work,” commented the firm. “A&O’s gold standard legal advice on all AI regulatory and legal matters is given by lawyers who don’t just understand the cutting edge of technology but are using it in their day-to-day work.”

Meanwhile, in connection with the Shearman & Sterling tie-up, Wim Dejonghe, the global Senior Partner commented, “Our proposed merger sets out an exciting future for both our people and our clients, with a uniquely strong combination of local depth, connected by global reach. Our clients are telling us that they are looking forward to the prospect of working with A&O Shearman. They recognise the value that our two firms coming together will deliver for them – an unrivalled ability to help them unlock growth opportunities and manage complex challenges with consistently high quality, wherever they are in the world.”

The benefit of being able both to understand and to use the latest technology is already clear with the firm advising on a range of emerging technology matters from AI to quantum computing to blockchain. It’s a changed world out there.

Legal Tech: Even harder than it looks

And finally – but still on the theme of technology and the law – the Legal Software Suppliers Association (LSSA, the UK industry body for legal systems developers and vendors) has published this week a ‘White Paper’ for law firms setting out which issues should be taken into account so as to gain the maximum benefits from their investment. As the LSSA explains, the aim is to help help law firms understand how they can best mitigate risk, exploit business opportunities and ensure a return on their expenditure and the advice focuses on five key areas:

  • Common pitfalls after purchase
  • What to look out for when purchasing software
  • An asset register for software and hardware
  • A programme for regular training
  • Risk and security

“Many law firms have been slow or reluctant to invest in technology which can reduce their costs, improve their efficiency and enhance the experience for their clients,” said LSSA CEO Kevin Horlock. “Today’s clients want fast, responsive and attentive service – all at a lower price. Client loyalty is fragile and law firms which do not – or cannot – deliver speedy, high quality and cost-effective services to their clients will swiftly see their clients and their money move elsewhere.  For that reason, a strategy to invest in legal technology is vital for all law firms.”

To accompany the White Paper there is a pre-recorded, online seminar which provides more detailed information and guidance. An expert panel consisting of Elwyn Morgan of Timeslice Ltd, Angela Hesketh of Smoove and Bishu Solomon Girma of Access Legal and hosted by Tim Smith, former LSSA Chair, discusses the actions necessary to ensure the maximum ROI when investing in legal technology. Well worth taking a look.

To download the white paper please use the following link: https://www.lssa.co.uk/ongoing-investment-lssa-whitepaper 

The webinar is available to watch back here: https://www.formediagroup.co.uk/forlegal/maximising-roi-when-investing-in-legal-

Lawyer Enters Golfing Folklore

Completing the ‘Fore Nations’ challenge (in Wrexham, Wales) L-to-R: Barry Ross, Crawford Anderson-Dillon, Chris Conway, Dave Kerr IMAGE: Mike Hyde, Carefree Golf Photograph

Faster, further, higher, longer – there’s no limit to what people will do for charity and to carve out a place in the Guinness Book of Records. So golfing hats off to Barry Ross, Director of the Abingdon-based Crossland Employment Solicitors who has just raised almost £8K for the British Heart Foundation via an ingenious ‘Fore Nations’ challenge playing a round of golf in each of the home nations of the UK in the course of a single day.

The select quartet of venues included Sandiway Golf Club in England, Wrexham Golf Club in Wales, Portpatrick Golf Club in Scotland and the Royal Belfast Golf Club in Northern Ireland with travel between them by taxi, boat and bus to achieve the target. Setting off at 2.15 am a total of 288 holes were played; 1466 shots hit; 562 kilometres travelled and 41,000 steps walked by Ross and his three colleagues.

 “Like all good challenges, this one started in the pub with the idea to do something in memory of our golfing friend George – and to raise money for the British Heart Foundation,” explained Ross. “What we didn’t quite realise at the time was the amount of planning and preparation (as well as luck) that would be needed to complete the challenge on the same day. But 18 hours 22 minutes and 3 seconds after we teed off at Royal Belfast Golf Club, we rolled in the final putt at Wrexham Golf Club in Wales, happy but exhausted.

 “We’re now waiting for Guinness World Records to confirm that our challenge has also achieved a new World Record in George’s memory – and we’re also still welcoming donations to the ‘Fore Nations’ challenge for the British Heart Foundation if our madcap feat strikes a chord.”

To make a donation, visit https://www.justgiving.com/page/forenations 

LEGAL COMMENT OF THE WEEK

TOPIC: Diversity of the Judiciary – the latest data as in Diversity of the Judiciary 2023 statistics,

COMMENT BY: Nick Vineall KC, Chair of the Bar Council

We agree with the Lord Chief Justice that public confidence in and the legitimacy of the judiciary are sustained by a judiciary that reflects the broad composition of the society it serves. And that it is essential that those from diverse backgrounds feel welcome and supported once they join the judiciary.

The latest diversity statistics show that progress is being made, but it is not being made equally across the board. For example, Black candidates are disproportionately less likely to succeed than White candidates. We need to continue efforts to understand why we are seeing this pattern.

The disparity between Black candidates and all ethnic minority candidates also demonstrates the importance of granularity in data. As we stated in our Race at the Bar report, barristers from ethnic minority backgrounds should not be treated together as a single group, as that does not provide a complete picture.

It is incumbent on all to play their part in ensuring a fair selection process for judges and in creating a supportive environment for those who join the judiciary. The professions must also continue to support the recruitment, retention and progression of all barristers, whatever their background, gender, sex, or race.”

For more information see: https://www.barcouncil.org.uk/support-for-barristers/equality-diversity-and-inclusion.html

COMMENT BY: The Chartered Institute of Legal Executives

CILEX welcomes the publication of the 2023 Diversity of the Judiciary Report. It is particularly noteworthy that references to CILEX Lawyers are often minimal compared to those of barristers and solicitors because the number of actual judicial appointments made from this group is too small to register in statisticians’ analysis. CILEX therefore looks forward to the recent legislative change opening up more judicial roles to CILEX members, ensuring these statistics improve over time, with all appointments being open to this diverse part of the legal profession in due course.”

TOPIC: The Supreme Court’s judgment over the Barclays ‘push payment’ fraud case which stated that banks cannot be held responsible for fraudulent transactions if the customer authorised the payment from their account. Please find a link to a PDF of the judgment here

COMMENT BY:  Ceri Morgan, Committee Member of the London Solicitors Litigation Association (LSLA)

“While this judgment recognises that Authorised Push Payment (APP) fraud is a growing social problem, it emphasises that it’s up to the government to decide whether losses flowing from such frauds should be borne by victims, or the banks. 

The Supreme Court has used the platform provided on this appeal to re-cast the so-called Quincecare duty, clarifying that what has become known as the Quincecare duty relates solely to the validity of a customer’s payment instruction. Only where the validity or content of an instruction is unclear, will the bank have a duty of reasonable skill and care to check that the order is valid.  

In other words, where a bank receives a valid payment order which is clear and leaves no room for interpretation or choice, the bank must execute the order. Applying this rationale to the case in Philipp v Barclays, the validity of the instruction was not in doubt because the customer herself gave the payment instruction. The bank was therefore required to execute the payment.”

COMMENT BY: Simon Fawell, Partner, Signature Litigation

Notably, the UKSC has allowed Mrs Philipp’s claim to proceed in one respect. Her claim that her bank owed her a duty to act more promptly in trying to recover the sums lost requires a full investigation and so must be determined at trial.

“This brings to an end a recent line of cases which have suggested a widening of the Quincecare principle and, while entirely sound in its reasoning, reduces the avenues through which victims of fraud might recover their losses. The UK government has gone some way to redressing the issue in the Financial Services and Markets Act 2023 which was recently given royal assent but the mechanisms in that Act do not apply to international transfers.

“Perhaps the biggest gap for victims of fraud currently is that claims against a fraudster’s bank remain difficult under English law, notwithstanding the measures in place requiring banks to diligence their customers and monitor for potentially fraudulent activity. There remain, however, a number of claims proceeding through the courts seeking to push the boundaries of when victims may be able to recover from the fraudster’s bank.”

TOPIC: The Crisis at Thames Water

COMMENT BY: Joanna Ford, Restructuring & Insolvency Partner, Cripps

The new funding of £750 million – a total shareholder bail-out this year of some £1.25 billion – seems a high price to pay to safeguard their investment, particularly when Thames Water made a loss after tax of £30 million in the year ended 31 March 2023 (according to their recently published financial statements).

Against the threat of administration, however, which would see the value of shareholder investments wiped out, they obviously thought it was a price worth paying and must have some confidence in the troubled water supplier’s ability to implement a successful turnaround plan.”

TOPIC: The   UK’s Competition and Markets Authority decision to pause litigation with Microsoft in light of the US courts deciding in the FTC/Microsoft case,

COMMENT BY: Alex Haffner, competition partner at UK law firm Fladgate:

It is really an unprecedented and dramatic turn of events. With the US court deciding it would not allow the FTC to injunct the merging parties to prevent them closing their deal in the US, the CMA has been left isolated as the only competition authority that has prohibited the transaction (following on from the EU Commission’s earlier clearance decision).

As such, the CMA is effectively saying to the parties “let’s discuss some sort of compromise here” which allows us to avoid the upcoming appeal by Microsoft and Activision before the Competition Appeal Tribunal. What that compromise will be is clearly up for grabs but one can speculate that it will likely involve the CMA asking for some form of undertakings/concessions from the parties which permits CMA to say that it can now clear the transaction on the basis that its competition concerns have been answered (previously it said the parties hadn’t given/offered any concessions which were viable).

One would expect some horse trading here and clearly Microsoft and Activision are going to feel they can negotiate hard in view of the FTC “win”, but given all the political heat which CMA has drawn following its initial block of the transaction, it seems likely it will want to find a palatable solution.”

LEGAL APPOINTMENTS OF THE WEEK

RISING STARS AT BRICK COURT

Brick Court Chambers has appointed four new tenants on successful completion of their pupillages

DANIELLE CARRINGTON achieved a double First in Law from Cambridge before securing an LLM in conflict of laws, international litigation and arbitration from New York University School of Law . She received a number of prizes and scholarships throughout her studies, including the Princess Royal Scholarship (Inner Temple), Lizette Bentwich Prize for excellent performance and the Christopher Simpson Prize for Public International Law (Trinity, Cambridge). Amongst a wide range of experience before commencing pupillage, she was a judicial assistant to Calver J in the Commercial Court.

During pupillage, she worked on a range of commercial, competition, public and international law matters, including a Shorter Trials Scheme trial in the Commercial Court and a communication to a UN Treaty Body.

VANSHAJ JAIN graduated with a BA, LLB (Hons) from the National Law School of India University, finishing with a gold medal for the Best Student Advocate. With a Rhodes Scholarship he then read for the Bachelor of Civil Law and an MSc in Refugee and Forced Migration Studies at Oxford and continued to a DPhil (Law) as an Indira Gandhi Scholar, examining the impact of sea-level rise on maritime entitlements under the UN Convention on the Law of the Sea. Before joining Brick Court as a pupil he worked with Soli Sorabjee, a former Attorney-General for India, on commercial and public international law disputes. He is the author of ‘Broken Boundaries: Border and Identity Formation in Post-Colonial Punjab’, published by the Asian Journal of International Law in 2020.

MICHAEL QUAYLE studied Law at the University of Oxford before qualifying as a solicitor. He then worked as a Senior Associate and Solicitor-Advocate at Freshfields Bruckhaus Deringer – where he gained extensive experience including acting for Eurotunnel in the ‘Brexit Ferries’ litigation and for the AIRE Centre in the ‘Dubs Amendment’ judicial review – before switching to the Bar.

During pupillage with Brick Court, Quayle assisted in a range of matters across chambers’ areas of specialism, including competition damages cases in the e-commerce and financial services sectors, an EU pharmaceuticals regulation matter, civil fraud claims, contractual disputes and judicial review claims concerning commodities markets and climate change. He is a trustee of fundamental rights charity the AIRE Centre.

CHARLES WALL was awarded a congratulatory First at Oxford, where he finished top of his year in philosophy. He went on to secure the Graduate Diploma in Law (distinction) and the Bar Vocational Studies course (distinction, second in year) at City Law School, University of London. During his pupillage with Brick Court , he has worked on a range of commercial, competition and public law matters including high value civil fraud claims, jurisdiction disputes, follow-on and stand-alone competition damages claims in the pharmaceutical and technology sectors. He was also involved in one of the largest group action claims ever before the English courts.

E- VENTS

RLEX

Live webinar: Generative AI’s impact on business: from hype to reality

Generative AI is taking the world by storm. But what does it practically mean for different sectors across the UK economy, and what do businesses need to consider to address the challenges and harness the benefits?

RELX, the FTSE 100 information and analytics business, invites you to join a webinar at 14:00 BST on Monday 17th July, for a panel discussion and interactive Q&A to find out how generative AI will likely impact UK business and the legal sector in particular, and the opportunities and the risks that it presents.

RELX is uniquely placed to provide insights on the emergence and transformation possibilities of AI. Bank of America recently named RELX as one of the 10 global companies most likely to benefit from AI. It was the only British company on the list that included Google, Microsoft and Nvidia. RELX’s legal business, LexisNexis Legal & Professional, recently launched its own generative AI platform Lexis+ AI, designed to transform legal work while addressing the problems of hallucinations and data privacy.

RELX has a history of innovation and adopting new technologies. It invests £1.2bn annually in technology and one third of its workforce are technologists.

To register for the event please click on this link and fill in the form.

We hope that you have found this edition of the LEGAL DIARY useful – if so please relay on to colleagues.

Meanwhile, please continue sending your Legal Diary stories plus legal comments, insights and appointments to

fennell.edward@yahoo.com

(And count your blessings over this traditional British rainy Summer weekend that you are not in blistering Spain or Italy).