Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
July 21 2023
Editorial contact: fennell.edward@yahoo.com
Short Thought for the Week: Pay Up?
In its Leader this morning, ‘Gilded Elite’, The Times took a harsh view of the NHS consultants’ strike. The newspaper’s liner was simple. Consultants – whose average basic pay was around £100k – were well paid (certainly by comparison with the average worker) and they should be happy with their lot. “NHS doctors are striking for higher pay and putting patients at risk despite salaries and pensions that the vast majority of Britons can only dream of,” was how the paper put it.
The consultants, of course, view it entirely differently. Reflecting on their years of training and demanding academic standards they compare themselves to their brothers and sisters who have entered the law and accountancy and will note reports (as in The Times itself this week) that partners in top law firms earn £2M while newly qualifieds can earn up to £180K. How many lives has a newly qualified solicitor saved? they might ask.
The conundrum of fairness in rewarding people for responsibility, skill, risk, enterprise application and inventiveness (plus, in some cases, mere charm) is almost insoluble. But what is undeniable is the issue of affordability. Clients of top law and accountancy firms can afford their fees. Can the public purse do the same for the NHS consultants?
The LegalDiarist
In this Week’s Edition
+ LEGAL DIARY OF THE WEEK
– The InterLaw Diversity Forum – Take Part in the Survey!
– A Degree of Construction for Dame Nerys Jefford DBE
– “Career progression based on merit not title or background,” demands new CILEX Boss
– Objections not Harassment in Rural Bliss
CONTRIBUTED ARTICLE OF THE WEEK
ABOUT TIME: THE BULLYING AND RESPECT AT WORK BILL by Thomas Beale
LEGAL COMMENT OF THE WEEK
on criminal fraud, tax and R&D, the latest CMA decision and compensation for the infected blood victims
APPOINTMENTS OF THE WEEK
at Baker McKenzie and Lainer, Longstaff
LEGAL DIARY OF THE WEEK
The InterLaw Diversity Forum – Take Part in the Survey!
Backed by the Solicitors Regulation Authority, the InterLaw Diversity Forum, has just launched the next phase of its research into the key drivers of job satisfaction and job security in the legal sector.
This is the third ‘Career Progression in the Legal Sector’ study and is supported by research co-leads Dr Lisa Webley (Head of Birmingham Law School; Professor of Legal Education and Research) and Dr Richard Harvey (Associate Professor in the Industrial-Organizational Program and Experimental Program, St. Louis University).The viewpoint of the research will be a ‘diversity lens’ including social mobility, race and ethnicity, LGBTQ+, disability, and sex.
To get the most useful results the organisers are keen to get as much participation as possible from across the profession. As the InterLaw Diversity Forum Patron, Dame Fiona Woolf DBE, said, “To improve the career experiences of those from diverse, underrepresented, and socially mobile groups, we must measure where, as a sector, we are improving over time and, more importantly, where we are stalling or falling behind. This study cuts across the whole legal community, and in order to build our understanding of the whole picture, it is vital that those in majority groups, as well as those in diverse, underrepresented, and socially mobile groups, participate in this survey.”
To take part in the survey go here:
https://slu.az1.qualtrics.com/jfe/form/SV_cOvdJMGnjFoEL8W
NOTE: Since its founding in 2008 by Daniel Winterfeldt MBE KC (Hon), the InterLaw Diversity Forum has created a platform to explore some of the most pressing Diversity, Equity and Inclusion issues facing the legal profession, bringing together over 9,500 individuals representing over 300 law firms and chambers, and over 500 corporates.
A Degree of Construction for Dame Nerys Jefford DBE
Mortar boards off to the School of the Built Environment, Engineering and Computing at Leeds Beckett University for taking a sideways look and awarding an honorary doctorate to the well-regarded construction law High Court Judge Dame Nerys Jefford DBE.
“I am honoured and delighted to have been chosen by Leeds Beckett University,” commented Dame Nerys. “It emphasises the strong and positive relationship between those who develop the law in these areas and those whose activities in the construction and engineering industries are intertwined with the law, and how we all share the aim of promoting safe, sustainable, effectively managed and dispute free construction projects.”
In 2022, Nerys was made an honorary life member of the Society of Construction Law, after serving as a Councillor for many years and as its Chairman from 2007 – 2008.
Professor Peter Slee, Leeds Beckett University Vice Chancellor said:
“I am delighted that the university is recognising Nerys Jefford’s outstanding service to public life. Nerys has also been a strong advocate for education, having lectured on legal issues concerning the construction industry for the likes of the SCL, the Chartered Institute of Arbitrators and the International Bar Association, among others.”
For nearly 30 years, Dame Nerys represented clients from the UK and around the world in court, arbitration and adjudication in disputes arising out of a vast range of projects from residential and commercial property to major public works and infrastructure projects, shipbuilding, and offshore structures. Her recognition by Leeds Beckett is very well deserved.
Objections not Harassment in Rural Bliss
Speaking of construction disputes, the press seems to be full of stories about neighbours falling out – whether it be over intrusive extensions, re-alignment of walls or changes of use. Too often it ends up in court – often with massive bills on both sides. So the deeper pockets you have, the better. And, indeed, more often than not these rows erupt in the greener, wealthier postcodes.
And so we come to the case of the property developer tycoon, Mark Dyer, and his wife, Clare Dyer, who live in Brook, an Area of Outstanding Natural Beauty in Surrey. The pair have been in the High Court this week seeking an interim injunction on the basis of objections to planning permission and of harassment by their pensioner neighbours, the Smalls.
The Dyers, it appears, have made almost 60 planning applications in recent times regarding the development and use of their properties. Their neighbours, the Smalls, have frequently objected. Hence the bad blood. However the Dyers have gone on to up the anti significantly by claiming that the objections amounted to ‘harrassment’.
That claim did not go down well with Judge Dias KC who concluded that the Dyers’ allegations were flawed and fundamentally weak.
“The judgment emphasises the importance of the fundamental rights of freedom of expression, assembly and association in a democratic society, and the caution the court should exercise when asked to restrict such freedoms,” commented the lawyers for the Respondents, David Haines and Rachel Carfrae of Charles Russell Speechlys LLP and Amy Proferes of Serle Court as Counsel. “Our clients are delighted that their rights have for the moment been protected by the decision of Judge Dias KC to deny the interim injunction application on all of the grounds sought. After a difficult year dealing with an unfamiliar court process, initiated by neighbours who were described by the court as sensitive and litigious, our clients hope that this sorry state of affairs will soon be concluded.”
There is a lesson here, surely, for many of us. (Although, the LegalDiarist stresses, he get on famously with both his neighbours)
“Career progression based on merit not title or background,” demands new CILEX Boss
Amidst the recent row over the value of higher education and the Government’s aim to steer more young people towards vocational training it is worth noting that CILEX (the Chartered Institute of Legal Executives) has appointed its new president Emma Davies, (left) the 13th woman in the role (out of 60 Presidents).
“After many years of lobbying and campaigning CILEX has seen some big wins in removing the legislative and policy barriers to CILEX Lawyers having the same career opportunities as solicitors,” she said. “These are considerable achievements – the barriers continue to fall and CILEX continues to chip away at any that remain.”
For many years CILEX offered a part-time route into the legal profession often for mature entrants or those unable to take the conventional university course. However, until fairly recently the areas of practice open to Legal Executives was limited. That now is changing.
As CILEX points out, ‘Legislative and policy changes secured over the past year include amendments to the Judicial Appointments Order 2008 that in June opened up more senior judicial roles to CILEX Lawyers; the Powers of Attorney Bill, containing changes permitting CILEX Lawyers to certify copies of Powers of Attorney which is currently making its way through Parliament; and securing parity of funding between apprentices qualifying as solicitors and those qualifying as CILEX Lawyers, for the first time.’
Davies is typical of many Legal Executives having started her training as a Chartered Legal Executive whilst working as a legal secretary at Exeter firm, Symes Robinson & Lee Solicitors. She then joined Rundlewalker Solicitors as a personal injury lawyer but now
specialises in regulatory law at the Royal College of Nursing where she represents members subject to Nursing & Midwifery Council proceedings. So she’s in a key job – and illustrative of the scope now available for those NOT going to university.
Her focus now would be pushing for “parity in the workplace”, ensuring members “have the careers they want and deserve without limitations” and “are afforded the same career development opportunities as other legal colleagues” with career progression based on merit not title or background. That should strike an echo around progressive politics.
CONTRIBUTED ARTICLE OF THE WEEK
ABOUT TIME: THE BULLYING AND RESPECT AT WORK BILL by Thomas Beale
In the press over the last few months, we have seen a series of high-profile business leaders, financiers and celebrities involved in stories concerning allegations of bullying in the workplace. This is a growing issue and much more needs to be done to protect the rights of workers and employees.
So it is a welcome development that Labour’s Rachael Maskell has introduced the Bullying and Respect at Work Bill, which aims to establish mechanisms for reporting and investigating incidents of workplace bullying.
The Bill also proposes a Respect at Work Code and enforcement powers for the Human Rights Commission. Maskell highlighted the lack of a direct route to restitution within the current legal framework and emphasised the need for a legal definition of workplace bullying. The proposed Bill aims to ensure that employers take responsibility for the conduct of others in the workplace.
First, the Bill seeks to introduce a statutory definition of “workplace bullying”. Whilst the ACAS Code of Practice currently seeks to define bullying, there is currently no legal definition and individuals who experience workplace bullying. Of course, bullying can mean different things to different people, which often makes it very difficult for employers to recognise bullying, investigate and take appropriate action. By introducing a legal definition for bullying, the Bill will hopefully provide some clarity and make it easier for both employers and employees to identify and deal with bullying.
Further, individuals who experience workplace bullying currently have no legal protection and no legal route to bring a claim in the employment tribunal, just because they have been bullied. As it stands, the employee needs to allege discrimination on the basis that the harassment related to a protected characteristic or will often be left with no option but to resign and claim constructive dismissal.
Of course, civil courts may be used to pursue a personal injury claim. However, while employers have an implied duty to provide a safe working environment, Maskell points out that the absence of legislation makes this difficult to enforce or address harm caused by bullying. If passed, the Bill includes a provision to enable claims relating to workplace bullying to be considered by an employment tribunal.
The Bill also seeks to introduce a Respect at Work Code to set minimum standards for positive and respectful work environments. The Code would set out how an employer should deal with a perpetrator who continues to bully colleagues.
As a case in point, this week we heard about how McDonald’s had allowed a toxic culture to spread throughout the organisation despite signing a legally binding agreement with the Equality and Human Rights Commission (EHRC), in which it pledged to protect its staff from sexual harassment. This Bill would grant enforcement powers to the EHRC to investigate incidents of workplace bullying and to take action, by having the power to issue enforcement notices to employers that fail to act. We will never know, but had the EHRC already had these powers, McDonald’s may have done more to protect their staff.
Thomas Beale is a Partner specialising in Bullying and Harassment claims at Bolt Burdon Kemp.
LEGAL COMMENT OF THE WEEK
TOPIC: The provisional decision by the Competition and Markets Authority provisionally to clear the $69bn Broadcom/VMware merger [The CMA’s final report on this is due by 12 September].
COMMENT BY: Alex Haffner, competition partner, Fladgate.
“Merger decisions coming out of the CMA in the immediate aftermath of events in the Microsoft/Activision case will bear closer scrutiny for signs whether the chastening experience of the CMA in the latter will inform the way it approaches ongoing cases.
Whilst the CMA will undoubtedly be wary of how its decision making is viewed from a public relations perspective it will remain determined to stick to its guns and determine each case on the basis of the facts before it.
Here, it seems that, having had more of an opportunity to look at the evidence in some detail, the facts as presented suggest to the CMA that any competition concerns are less pronounced and so the merger should (provisionally) be allowed to proceed.”
TOPIC: The report that that a quarter of the UK Government’s R&D tax relief scheme payouts have been lost to fraud and error
COMMENT BY: Andrew Durant, Senior Managing Director, FTI Consulting
“That a quarter of payouts under the present R&D tax relief scheme have been lost to fraud is hardly surprising. One needs to only see the losses from the Covid-19 loan schemes to see the government is not doing enough to address fraud in the UK.
The public funds lost to fraud could have been instead utilised for other public sector spending, such as our education and healthcare systems.
When designing new tax relief schemes, the government must work with both public and private sector experts throughout the consultation and development process to identify potential risks and establish and implement controls around these in order to mitigate them. Only then will we have a robust framework that, from the outset, aims to reduce the risk of fraud activity, rather than the too little too late approach we are seeing here.”
TOPIC: The proposed legislation for the new R&D tax regime
COMMENT BY: Richard Turner, Senior Managing Director, FTI Consulting’s UK Tax practice
“The proposed changes represent a move towards a more coherent framework to provide incentive for companies to develop new science and technology here in the UK and for the UK to be a key player in the knowledge economy.”
TOPIC The latest crime statistics especially regarding fraud.
COMMENT BY: John Binns, Partner at BCL Solicitors
“Interpreting trends from annual figures can be difficult. The fraud figures illustrate this particularly well: a bare headline that the number has fallen back from a lockdown-era spike masks some interesting volatility, with a huge increase in advance fee fraud, and a decent decrease in bank and credit account fraud (albeit still over 2 million offences).
“To understand properly what is going on, we would need to dig deeper, not only into what victims have reported and police have recorded, but also what steps have been taken to tackle these frauds, by banks as well as law enforcement.”
COMMENT BY: Sean Curran, Partner at Arnold & Porter
“Although the statistics do not show a significant change in overall fraud levels since before the pandemic, there are notable patterns in the kind of fraud taking place. Whilst there has been a six-fold increase in advance fee fraud, instances of bank and credit card fraud have decreased. As well as being reflective of behavioural changes since the pandemic, the fluctuations in fraud type show that fraudsters are constantly looking for new methods to catch would-be victims off guard.”
COMMENT BY: Mark Jones, Partner, Payne Hicks Beach
“The latest ONS figures from the Crime Survey make for an interesting read where fraud is concerned. Of note, there has been an eye watering 549% increase in advance fee fraud cases. However, what proportion of these cases will ever result in a prosecution? Given ever stretched police resources one wonders the extent to which many of these reported cases will ever make their way through the courts.”
TOPIC: Compensation for the victims of the ‘Infected Blood’ scandal
COMMENT BY: Des Collins, Senior Partner at Collins Solicitors
“The innocent victims of this scandal are simply at their wits end. The Government has already accepted the moral case for compensation. In his Second Interim Report Sir Brian Langstaff found that “wrongs were done at individual, collective and systemic levels” across Government, leading to appalling outcomes for victims. He also concluded that compensatory relief was both “necessary and urgent” – yet still most of those affected have not received any compensation at all.
“Many of our clients are losing patience with the Government’s comatose reaction to this self-evidently urgent situation and it now appears clear that there may be no real alternative other than to reinstate the GLO which includes a claim against the Secretary of State for Health and Social Care for misfeasance in public office.
“This Inquiry was established six years ago. It’s now been two years since the Compensation Framework Study was commissioned, by the then Paymaster General, Penny Mordaunt, and over a year since Sir Robert Francis reported his recommendations. Yet, despite many assurances to the contrary, there is still no meaningful response from Government. If Ministers choose to continue to give platitudinous responses to the Inquiry, then victims and their families will look to the Court to award compensation.”
APPOINTMENTS OF THE WEEK
BAKER McKENZIE
Angela Petros (left) has been appointed Chief Marketing Officer (CMO) at Baker McKenzie. She joins from Morrison & Foerster, where she had held the role of CMO for the past eight and a half years. She will be based in New York and lead the firm’s business development, marketing and communications function globally.
Petros’s experience within the legal sector is wide and various having originally trained as a lawyer in her native Australia, and spent the first part of her career as an associate with (what are now) Herbert Smith Freehills and King & Wood Mallesons.Subsequently she heldsenior marketing and strategy roles with LexisNexis.
“As an Australian based in the US, holding a range of global leadership positions, Angela brings a global mindset and deep understanding of how key markets operate around the world,” commented Milton Cheng, Global Chair, Baker McKenzie. “We look forward to her leading our business development, marketing and communications function as the global economy continues to recover, generative AI really begins to impact our sector, and client needs are further driven by geopolitical complexity and regulatory scrutiny.”
LANIER, LONGSTAFF, HEDAR & ROBERTS LLP
Montse Skyner (left) has joined the Manchester law firm Lanier, Longstaff, Hedar & Roberts LLP as a legal director to support its further expansion into group actions. Skyner joins from Clyde & Co where she spent 12 years, most recently as deputy head of industrial disease and legacy claims. She qualified originally with claimant firm Beresfords in 2006.
“I became a solicitor to help people get justice and this is a rare opportunity to help shape the growth of a unique firm doing important work,” said Skyner. “The founding partners bring exceptional experience, meaning the firm is perfectly positioned to create something very special and deliver real societal good by holding big business to account. I am looking forward to playing my role in shaping the future of the firm.”
Tom Longstaff, co-founder of the firm, commented, “Montse brings a compelling mix of claimant, defendant, and law firm management experience, all of which will be incredibly useful to our growth ambitions. Since launching in November, we have achieved unparalleled success in many of our claims and we will shortly commence a number of other group actions.”
We hope that you have found this edition of the Legal Diary useful – if so please circulate to colleagues.
Meanwhile please continue sending your legal diary stories, latest comments , insights and appointment to
fennell.edward@yahoo.com
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