Edward Fennell’s LEGAL DIARY

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

August 4 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: WEAPONISING THE LAW?

Having the son of a US President facing criminal charges is an embarrassment. Having a former President also facing criminal changes at the same time could be seen as an indictment of the prevailing culture of the political class.

British politicians too have been casual about legality in recent years – but nothing quite to compare with what is happening in America right now. But on both sides of the pond the role played by the judiciary and the lawyers who hold politicians to account is, maybe, more important than at any time since the Second World War.

It is the politicians who make the laws; it is the lawyers who uphold them.

As events in Israel now reveal, both the sacredness and the vulnerability of that responsibility requires perpetual vigilance.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Lawrence Stephens Kicks off Its new Sports & Entertainment department

– Marriage a La Modem by Consilio, LOD and SYKE

– A Costly Inheritance

Judicial Assistant: A Rare Opportunity

+ CONTRIBUTED ARTICLES OF THE WEEK

– The Proposed surrogacy reforms will do little to encourage more women to come forward as surrogates, says Natalie Lester

Will the Paris Olympics see a Gold medal won by Big Brother?

by Charlotte Kingman

Is Continuing Health Care a case for the Courts? asks Lisa Morgan

+ LEGAL COMMENT OF THE WEEK

on Wilko and the lengthening of divorce proceedings

+ LEGAL APPOINTMENTS OF THE WEEK

at Lowry Legal and Travers Smith

LEGAL DIARY OF THE WEEK

Lawrence Stephens Kicks off Its new Sports & Entertainment department

Mohit Pasricha

For decades top level sport has also been big business. But what’s remarkable is the way that the frontiers continue to be rolled back. Most notable currently is the way women’s sport is expanding  commercially bringing in both new issues – such as trans rights and equal pay – and extending the scope of the traditional issues such as image and broadcasting rights.

So it is significant that as Lawrence Stephens launches a brand new Sports & Entertainment department it can already boast that its team has to its credit ‘record-breaking commercial sponsorship deals within women’s football.’

Heading up the new team is Mohit Pasricha formerly the Head of the Sports & Entertainment Team at Mackrell Solicitors. Interviewed by the podcast Law in Sport last Summer (go to https://soundcloud.com/lawinsport) Pasricha reflected on how the law and the sports sector can work on being more diverse and inclusive. He is a good example of that himself.

“The team and I are delighted to join Lawrence Stephens, and I am proud to head up its new Sports & Entertainment department,” said Pasricha. “We are a team that is passionate about each and every client’s journey, consistently surpassing their expectations by bringing additional value, and ultimately forming long-lasting relationships.”

Alongside Pasricha will be Jake Cohen and William Bowyer both of whom are experienced sports lawyers.

 “It is a pleasure to welcome Mohit, Jake and Will to the Lawrence Stephens team,” said Steven Bernstein, Senior Director and Co-Founder of Lawrence Stephens. “Their valuable expertise and industry insight will bring a new dimension to the firm, and further diversify our range of services and wealth of experience.”

There is definitely a new player on the pitch.

Marriage a La Modem by Consilio, LOD and SYKE

LOD and Consilio bosses making great connections

The convergence of ‘new generation’ legal service providers with law tech has its natural outcome this week with the agreement by Consilio, which calls itself ‘the global leader in legal technology solutions and enterprise legal services’ to acquire both Lawyers On Demand (LOD), a ‘pioneer in flexible legal talent’ and SYKE, a British legal technology consultancy. The new threesome now looks poised to grow its business across three continents.

“The Flexible Talent market remains fragmented, and we continue to explore opportunities to create impactful solutions for legal teams as they face an unprecedented amount of talent concerns, as a result of historically high attrition rates, budgetary freezes, and legal industry salary increases out of reach for many corporations,” said Andy Macdonald, Chief Executive Officer of Consilio. “This acquisition brings LOD’s and SYKE’s deep expertise in flexible legal talent and legal technology consulting onboard while unlocking greater scale and capabilities for our clients.”

Meanwhile Simon Harper, Founder of LOD shared his enthusiasm for the new set-up observing, “I’ve watched the growth of Consilio’s enterprise legal services business over recent years and look forward to combining forces to reflect client needs and to establish one of the largest legal flexible talent and advisory companies in the space.”

Currently LOD has on its books 4,500+ legal practitioners providing clients with ‘on-demand’ expertise. Strikingly this includes every type of specialist within the legal industry including legal engineers, legal operations consultants, paralegals, and risk & compliance professionals as well as actual lawyers across 25 countries.“As we have been strategically ramping up our global Enterprise Legal Services offerings, our clients are asking us to serve them on a global basis more and more every day,” said Robb Hern, SVP of Enterprise Legal Services, Consilio.

Well, it now looks like they will get what they want.

Costly Inheritance

With house prices rising many younger people’s only hope of being able to acquire property is when their parents die and they inherit the family fortune.

But there’s a catch. As research by Sussex-based law firm Mayo Wynne Baxter reveals, 40% of all property purchases in England and Wales in 2022 would result in an inheritance tax bill, compared with just 13% in 2009. The inevitable result is that more families could find themselves being burdened by inheritance tax. Consequently, the available funds for the heirs to invest in the housing market will be substantially less than might have been anticipated.

“Analysis of the Land Registry’s price paid data[i] shows that in 2009, 13% of all property purchases (83,266 out of 625,205) in England and Wales cost £325,000 or more. By 2022, this had more than trebled to 40% (338,785 out of 843,730),” explained Mayo Wynne Baxter.

When modern inheritance tax, known as estate duty, was introduced in 1894, it was intended to affect only the extremely wealthy. “However, the tax-free allowance has been frozen at its current rate for more than a decade, where it will remain until at least 2026 despite increasing house prices and inflation – bringing more families into the net,” said Fiona Dodd, private client partner at the firm. “As our survey shows, many people do not believe they will ever have to consider estate planning. However, rising house prices are swelling estate values and more properties are edging towards the £325,000 allowance – before possessions and money are even taken into account.The standard inheritance tax rate is 40%, which can eat into what is left behind, leaving families facing an unexpected and, potentially, large bill.”

Think the cost of living is high? Looks like the cost of dying will become even higher.

Judicial Assistant: A Rare Opportunity

Robert Scudamore – A Big Break

Have you heard of the High Court’s Judicial Assistant scheme? To its shame the Legal Diary had never come across it directly – although Legal Cheek had made frequent references to it. And, to be fair, when the High Court launched its latest recruitment drive on Linked In the number of reactions was …ZERO.

Nonetheless, it’s clearly a GOOD THING as this summary points out.

“The role of judicial assistant (JA) offers those in the early years of their professional practice a ringside view of the trial process and first instance decision-making from the perspective of the judge, for the most complex, high value and often high profile civil and family cases,” according to the official description. “The work will be based in London, where JAs will be expected to attend either the Rolls Building or the Royal Courts of Justice.”

So it sounds like a good gig for the ambitious and aspiring young lawyer.

Meanwhile, along the same lines is the Supreme Court’s Judicial Assistant programme and one of those celebrating selection for the forthcoming intake is Robert Scudamore, an Associate in the Commercial Litigation team at Stevens & Bolton. Obviously it’s a fantastic experience seeing from the inside  the workings of the country’s top judges and undertaking tasks such as research in connection with appeals and summarising applications for permission to appeal leading to completion of allocated bench memos. In other words, pretty priceless.

For more information, please visit the Judiciary website: https://lnkd.in/eM3w9uCt

CONTRIBUTED ARTICLES OF THE WEEK

MARKING National Surrogacy Week  1 – 7 August 

The Proposed surrogacy reforms will do little to encourage more women to come forward as surrogates, says Natalie Lester

Natalie Lester

Current surrogacy legislation dates to the 1980s and while other parts of fertility law have been updated, it will come as no surprise that our surrogacy laws are widely regarded as unfit for purpose given the enormous changes we have seen since this time.

 In March the Law Commission published a report and draft legislation for proposed changes to the law of surrogacy. Under the reforms, a new system governing surrogacy agreements, “the new pathway”, would come into force. The new regime offers more clarity, safeguards and support – for the child, surrogate and intended parents.  For example, there would be tighter regulation around expenses paid to surrogates to ensure that the process remains altruistic as opposed to commercial and all those involved would be required to have counselling which is certainly a good thing.  Another recommendation is that the surrogate’s spouse should no longer be considered the second legal parent, meaning that their consent would no longer be required.

The proposals also address the key issue that intended parents are not legally recognised as the parents at birth. Currently, the intended parents  must apply for a parental order which cannot be made until at least six weeks after the birth. Under the proposals, the intended parents would be the legal parents at birth, a straightforward and pragmatic change which should make the process far less stressful for those involved.

 A key intention of the proposed reforms is to encourage more surrogacy arrangements in the UK where surrogacy remains small-scale with around just 300-400 orders granted each year.   Many more couples travel to jurisdictions in the United States and elsewhere where commercial surrogacy is legal and their status as the parents is recognised when their child is born. That said, the process of returning home with their child is often difficult, not least because a couples’ status as parents may not be recognised here. This issue is not addressed by the proposed reforms and the new pathway would not apply to international surrogacy.

 While the proposals will almost certainly make the prospect of undergoing their surrogacy journey at home more appealing to intended parents and while there are more protections for surrogates,  I would argue that the recommendations provide no real incentives for women to come forward as surrogates.  While the commercialisation of surrogacy is ethically questionable, with the right safeguards in place, as we see in the US,  it could a long way to address the shortage of surrogates in the UK. This is something that should, perhaps, be debated if we do want to deter couples and individuals  from seeking surrogates abroad.

 Natalie Lester is a partner in the family team at Debenhams Ottaway

Will the Paris Olympics see a Gold medal won by Big Brother?

by Charlotte Kingman

Charlotte Kingman

Earlier this year, French lawmakers approved plans to use security cameras equipped with AI technology during the 2024 Olympic Games in Paris. This ‘smart surveillance’ would support the police and other authorities to identify security threats. The exact scope of the technology hasn’t been confirmed but the French government has said that it would be used to identify “pre-determined events”, which may include things like crowd surges or unattended luggage.

If this law is adopted, France would become the first country in the EU to legalise AI-based surveillance, and such law would permit AI surveillance to remain in place until the end of 2024. The smart surveillance proposed does not use facial recognition technology, and is not looking to target individuals, but rather spot situations that may pose a security threat.

But this has raised much controversy amongst privacy campaigners who argue that such technology is invasive and poses significant risks to individuals’ civil liberties including the right to be anonymous and the right to privacy (i.e. not to be watched).

It is inevitable that the AI algorithms will need to monitor and analyse individuals behaviour and movement in order to determine whether something is a security threat or not, and this has led to privacy concerns, as well as activists raising wider public policy points about potentially discriminatory AI surveillance. There are fears (from Amnesty International and other campaign groups) that by broadening the police’s powers of surveillance in this way during the Olympics will lead to a permanent enactment of such measures, and this opens the floodgates to individuals losing key privacy rights.

Whether such measures meet the GDPR principles of proportionality and necessity is open to debate. Certainly this technology could help to protect those attending Paris during the Olympic Games by providing the police with additional resource to monitor threats and more quickly deal with anything identified as a security risk. And its important to note that the technology will only flag a potential threat and it will then require human intervention to decide whether to act on such information and what action to take. However, a key legal question is how will this technology (specifically the data used to train the AI systems) remain unbiased, and who will be responsible for ensuring its use is, and remains, ethical and limited to the scope set out in the proposed legislation.

This perhaps highlights the importance of AI specific regulation at a time when the EU has put forward one of the world’s first pieces of legislation to directly govern the use of AI. AI-enabled technology is inevitable and its benefits are widely discussed but there is an inherent tension with the protection of fundamental rights of privacy that needs to be carefully balanced.

Charlotte Kingman is an Associate in the Commercial Team at Ashfords LLP 

Is Continuing Health Care a case for the Courts? asks Lisa Morgan

Lisa Morgan

Robin McMinnis, a 75 year-old man from Northern Ireland is quadriplegic and suffers from MS, among other ailments. In spite of his chronic healthcare needs, NHS continuing healthcare (CHC) denied funding, forcing Robin to fund his own healthcare in a nursing home. His case highlights how essential CHC funding is to those who require long term care.

When his case was taken to court, a High Court judge overturned the Department of Health’s continuing healthcare policy. Whilst this judgement does not directly affect the policy in England and Wales, it is a timely reminder that the policy must be just and not unnecessarily withhold funding. For example, despite an aging population, NHS figures show that the number of people deemed eligible for funding has actually dropped by a whopping 20% since 2015. If you have assets above £23,250 in England or £50,000 in Wales you will have to fork out £41,600 a year for a residential placement and £56,056 for a nursing home (LaingBuisson).

The founding principle of CHC was set in a landmark ruling of the Appeal Court in 1999, ‘where the primary need of an individual is a health need, then the responsibility is that of the NHS’. It is undergirded by the concept that healthcare in the UK is free at the point of need.

However, there are two issues threatening these principles. Firstly, there is no simple way, such as a diagnosis, to assess the type and amount of care an individual needs. Secondly, the altogether subjective nature of the process of assessment has resulted in a postcode lottery. For example, if you apply for CHC and live in Bury, you may be one of the lucky 246 per 50,000 of the population who succeeds. However, if you happen to live in Berkshire West, your chances of success drops to 14 per 50,000 population. All this means that many families have been unhappy about the lack of funding made available for their loved ones, evidenced in over £400m being paid out since 2012 in compensation for past periods of care.

Families can challenge a CHC decision via the NHS appeals process, a two-step procedure ending in an independent review panel. While this may be a time-consuming endeavour, 18% of challenges succeed at Integrated Care Board level and a further 30% at national level. It can ease the burden of those who fear having to lose family homes or having to depend of relatives to help finance long-term care.

Lisa Morgan is a partner and head of the care home fee recovery team at Hugh James Solicitors 

LEGAL COMMENT OF THE WEEK

TOPIC: The position of retailer Wilko

COMMENT BY: Jeremy Whiteson, Restructuring and Insolvency Partner, Fladgate

The collapse of Wilko is a result of the “perfect storm” hitting high street retailing.

Long term structural shifts in consumer behaviour were evident before the covid pandemic. That lead to the collapse of many household names before or in the early stages of the pandemic- including Debenhams, Arcadia group, Mothercare, Karen Millen and others. This reflected a shift in consumer preference to online shopping, downward price pressures, rising expenses and increasing labour shortages.

With pressure removed during the pandemic by temporary legal restrictions on creditor action and a boost to the economy from government handouts, retailers are now finding that the financial pressures have returned with a vengeance. Not only are they still working through the structural shift to online shopping but they also now need to cope with a worse shortage of labour, upward price pressure, difficulties with imports after Brexit and higher interest rates- which can face them with a double hit- increasing their own financing costs while dampening demand from consumers. It may not be a coincidence that the filing of an intention to appoint administrators occurred on the same day as an announcement of increased bank rates.  

For some brands, particularly clothing, there may be opportunities to pivot the business to an online focus. However, that maybe harder with Wilko’s product range and market position.

It is hoped that a buyer for the business is found to salvage some of the many jobs at stake and an established high street fixture.”      

TOPIC: The UK’s Broken’ court system meaning that it now takes an average of 52 weeks to conclude divorce proceedings

COMMENT BY: Stephanie Kyriacou, family associate solicitor at Shakespeare Martineau

The broken state of our court system has been silently affecting lives for years. Excessively long waiting times and last-minute disruptions are plaguing divorcing couples seeking to resolve their financial matters through the court process, leaving them in limbo.

The court, quite rightly, prioritises Care and Children Act proceedings. However, that does mean financial cases are often pushed to the back of the queue, leaving divorcing couples waiting for well over 12 months to have their financial matters determined by a judge.

The repercussions of these delays are profound, leaving many individuals and families in a state of uncertainty and financial instability, heightened by the current cost of living crisis, as they anxiously wait for a final decision on how the assets of their marriage will be divided.

Moreover, the issue extends beyond the long waiting times; financial remedy hearings are also subject to last-minute cancellations due to a lack of judicial availability. Such a situation is not only disheartening but also leads to significant financial burdens for the affected parties who have already invested substantial sums in legal representation.

It’s basically a waiting game – there is no shortcut or way to avoid the delays. Urgent reforms to create a more efficient and accessible judicial process are needed, and that onus is on the government.

It is possible to divorce without resolving financial matters but this is extremely risky as financial claims will then remain ‘live’ between the parties. The last thing you want is your divorced ex-partner returning after they learn you have come into some money and make a financial claim against you in the future.

In the meantime, we strongly recommend divorcing couples explore alternative methods of dispute resolution. Mediation, arbitration and private financial dispute resolution hearings have proven to be effective alternatives to court that offer quicker, cost-effective and amicable solutions.

There is a misconception that private financial dispute resolution hearings and arbitration are only for the rich and famous, just as pre- and post-nuptial agreements were once thought of. However, good solicitors should be advising all their clients of these alternative options to court as they could end up saving the parties thousands of pounds in wasted legal fees spent on our broken court system.”

LEGAL APPOINTMENTS OF THE WEEK

LOWRY LEGAL

Lesley Smythe (left), a matrimonial solicitor, is joining the high net worth divorce firm Lowry Legal in the North West as a partner. With 25 years’ experience across the full range of divorce law including with Stowe Family Law and as Head of the family and matrimonial department at DTM Legal, Smythe has developed specialisms in separating complicated financial assets following relationship breakdowns and assisting clients in the negotiation and drafting of pre- and post-nuptial agreements. She has a reputation for her ‘candid, supportive, and personable approach’ to clients.

“We are so pleased to be welcoming Lesley to the team,” said Lowry’s Managing Partner Katie McCann. “Her join marks an exciting period for us as we continue to build on our remarkable successes of the last year. Lesley is a natural fit for Lowry Legal: she combines shrewd legal judgement with a devotion to exceptional client care.”

Smythe commented, “I am delighted to be joining the team at Lowry Legal, who have swiftly managed to establish themselves as a highly regarded firm in the HNW family law market.”

TRAVERS SMITH

Tosin Adeyeri (left) is joining Travers Smith LLP as a partner in the Funds group with a view to strengthening the firm’s expertise in private funds formation and secondaries work.

Formerly with Proskauer Rose LLP where she was a member of the Private Funds Group, Adeyeri has extensive experience in advising UK and international fund managers on a range of issues, including the establishment and structuring of private investment funds, internal governance organization and ongoing fund maintenance. She also has long-standing expertise in advising on secondary portfolio transactions and has represented a number of global investors on their investments into private investment funds.

“I am very excited to be joining Travers Smith as a partner,” said Adeyeri. “The platform offered by Travers Smith to advise on innovative transactions within the asset management sector is compelling and I look forward to working with the many market leading asset management specialists within the firm.”

It’s the Summer! We know because it’s raining. Despite this we keep publishing. So please continue sending your legal diary stories, legal insights and comments plus appointments to

fennelll.edward@yahoo.co.uk