Edward Fennell’s LEGAL DIARY

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

August 11 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: BENT LAWYERS?

Who can we trust to defend the innocent and prosecute the corrupt?

Are some lawyers ‘going the extra mile’ for their clients? And, if so, is it a crooked mile? And what should be done about it? That’s the crisis of the week in the immigration business.

Meanwhile, in parallel, the problem of who ‘polices the police’ is becoming increasingly convoluted as we try to balance fairness and effectiveness in disciplinary processes.

In particular, frustration and impatience at the systems which the police use to discipline /sack their own are expressed with increasing passion – not least by senior police officers themselves.

Who do they blame? Well naturally it’s the lawyers, the ‘Legally Qualified Chairs’ (LQCs) who exercise the key judgments and who are regarded as being ‘soft’ on wrong-doers. Meanwhile, in the immigration space, lawyers are regarded as being often either corrupt or cynically disruptive.

If we can’t trust the lawyers and we can’t trust the police then who can we trust? Answers on a postcard, please!

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Numbering Off at the Accountants

– Setfords Set Pace on De-Banking

– Objecting to Planning Applications is a Human right – phew!

– Balanced View is Best at Clarke Willmott

+ LEGAL COMMENT OF THE WEEK

on the Electoral Commission hack, plans to penalise landlords for illegal immigrant tenants, Wilco’s distress, Re-charge and Brake v Chedington Court Estate 

APPOINTMENTS OF THE WEEK

at Excello Law and Spector Constant and Williams

LEGAL DIARY OF THE WEEK

Numbering Off at the Accountants

‘Intruder’ accountancy-based law firms now have to be taken seriously, it seems. Not only are they growing in size but they are also picking up some heavyweight names from Magic Circle law firms. The latest example comes from KPMG Law which is proudly boasted in the Spring that it had snagged Stuart Bedford (left) from Linklaters. But Bedford is not the only scalp claimed by KPMG. A further six names from leading firms have now followed Bedford’s example. A key selling point, it seems, is the ability of the accountancy firms to offer a wide gamut of expertise to their clients and do everyting under the same roof.

“It’s an exciting time to be at KPMG Law; not only as part of the rapidly growing and evolving UK Legal Services market, but also as we look forward to the opportunities Generative AI brings to the legal profession, ourselves, and our clients,” says Bedford.

As the way in which legal services are delivered to clients are changed radically, “Our people will continue to be our differentiator,” claims KPMG. “

There has never been a more critical time to ensure we focus on growing our business with high-calibre lawyers who see the advantages of our ‘Law plus’ model, which enables us to leverage the expertise of our colleagues in Tax, Consulting, and Deal Advisory to help create business solutions to legal challenges.”

Among the firms who have had their ‘pockets picked’ by KPMG recently are Baker McKenzie, Fladgate, Mischcon de Reya and Squire Patton Boggs.

“Our mission – to build an incredible team of legal professionals who are experts in their respective fields – continues in the UK and globally,” commented Bedford. “‘Law plus’ solutions will enable our clients to prepare for the next frontier of legal and at KPMG Law, we will be right there at the forefront.”

Objecting to Planning Applications is a Human right – phew!

Three weeks ago we reported in the Legal Diary about the bizarre case of the row in rural Surrey between neighbours, the Dyers, and their neighbours, the Webbs. In brief the Dyers had been in the High Court seeking an interim injunction on the basis of objections to planning permission and of harassment by their allegedly ‘menacing’ pensioner neighbours. The story was quickly taken up in other media with reports that the applicants claimed that they had faced a malicious campaign calculated to distress them, a course of conduct prohibited under the Protection from Harassment Act 1997.

Anyway, the High Court has now come down in favour of the respondents. And common sense, it seems might possibly have prevailed with the application for the injunction being dismissed as ‘Totally Without Merit’ – and a significant result for Serle Court’s Amy Proferes, counsel for the respondents.

Amongst a long tradition of un-neighbourly disputes, this case is unusual given that, according to Dexter Dias KC in his judgment, it ‘raises important questions about the nature, extent and limitations of certain of our fundamental freedoms under the law.’ The judgment confirms that objecting to planning applications, and discussing those applications with others, are rights protected under the Human Rights Act 1998. So continue to expect to see plenty more of them.

Setfords Set Pace on De-Banking

Where would we be without Nigel Farage? Controversy will dog the man for as long as the word ‘Brexit’ sparks passionate reaction – but reputation is a funny phenomenon and quite possibly he will remembered by posterity primarily for his role in the ‘de-banking’ scandal. After all, without the public hoo-ha created by Farage how would the wider public have become aware that ordinary people could be dumped by their banks for the flimsiest or, indeed, most erroneous reasons.

One of the law firms which quickly positioned itself as a commentator on the matter was Setfords, the Chancery Lane firm with branches across southern England and elsewhere. Jeremy Asher, a consultant regulatory solicitor at the firm called out the Financial Conduct Authority over the matter, highlighting an over-reliance by banks on using technology – particularly AI – to make decisions. And so, suddenly, we realised that a PEP – politically exposed person – was not just a dodgy minister in a corrupt regime but someone as bland as the Chancellor of the Exchequer, Jeremy Hunt.

“I believe that it’s vital for ordinary people to know about topics such as fraud markers, debanking, and the impact that this can have,” said Asher. “Being featured in so many pieces of coverage enabled me to get the message out there, reach thousands of people, and hopefully educate them on this important issue.”

In short, the lesson for lawyers is to never miss out on a juicy scandal to make your expertise felt.

Balanced View is Best at Clarke Willmott

It is always good to ‘go out on a high’ and that was certainly the case with Stephen Rosser (left) the CEO of Clarke Willmott who stepped down a few weeks ago having led the firm for 13 years. His legacy can be seen in an increase in profits in his last year of 14% and with no debt to the bank.

With profit per equity partner (PEP) at £489k Clarke Willmott are scarcely rivalling the Magic Circle levels – but as a national firm with offices around the regions one would not expect them to be.

More important than the money though, the firm’s reputation for its culture stands high including a commitment to fully flexible/hybrid working and supporting a healthy work life balance. And in the long term that may matter more than a few mil extra in the retirement fund. For example, the bright son of a friend of the Legal Diarist quit one of the very top London firms a few months ago because of the unrelenting hours and the complete absence of work-life balance. Having taken a few months off he has now returned to the law but with a firm which has a more sensible approach.

“Ever since I became CEO, I have been working to build a sustainable, long-term future for the generations that will follow,” said Rosser. Other law firm leaders might take note.

LEGAL COMMENT OF THE WEEK

TOPIC: The news that the UK Electoral Commission has been the victim of a “complex cyber-attack”,

COMMENT BY: Paula Williamson, Partner and specialist data protection and privacy lawyer, Excello Law

“Notwithstanding the high number of U.K. citizens impacted, controversially, the Electoral Commission has waited approximately 9 months to alert those affected via a published statement. This delay could be because the Electoral Commission appears to take the position that the incident does not present “a high risk to individuals” and therefore does not hit the GDPR legal threshold for notifying individuals about a data breach.

“Given the significant volume of personal data records affected, the decision not to warn U.K. voters sooner is likely to be criticised. The sooner individuals know their personal information has been compromised, the sooner they can take steps to be on the lookout to protect their bank accounts and other assets. 

“On the face of it a cyberattack that only relates to basic contact information may seem more benign than a media attention-grabbing attack involving medical records. But attacks involving basic personal identifiers can be just as devastating and disruptive. Attackers can combine basic data with other data available in the public domain to identify or profile an individual, steal an identity or money. There is also a market for personal data on the dark web.”

TOPIC: The announcement by the Home Office that it plans to increase fines on landlords for renting properties to illegal immigrants,

COMMENT BY: Gary Scott, Partner, Spector Constant & Williams

“This announcement is a further nail in the coffin for amateur landlords. The expectation seems to be that landlords should somehow become a branch of the Border Force. The increase of penalties by 1000%, up to £10,000 per occupier for a first infringement of these rules and up to £20,000 for a repeat offence (an increase of 667%), will be likely to frighten off many good landlords.”The obligations have not changed but the penalty for getting it wrong have now become more than a headache or a slap across the wrist, but have moved to the territory of potential bankruptcy for many landlords.””In these circumstances a simple error by an unwitting landlord allowing a family of four to take a tenancy when their immigration visas have just expired could arguably lead to fines for the landlord of up to £40,000.”Landlords, especially those with four or fewer properties and which make up over 50% of the total number of rented flats in the private rented sector, are not equipped or trained to carry out the role of a Border Force agent. The additional burdens on landlords brought in by the Government have already driven many from the market and this measure is likely to see many more follow suite.”

TOPIC: The entry of national retailer Wilko into administration

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

The appointment of administrators at Wilko is a sad day for British high streets. It has been expected for some days, reflecting long term shifts in UK retailing, but may not be the end of the road for the brand.

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, which 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.     

Administrators have the ability to sell less than all assets if that strategy offers the best deal. It may be that a buyer can cherry pick the best parts of the business and keep the brand alive.”

TOPIC: The default by Australian company, Recharge Industries, on its agreement with Britishvolt.

COMMENT BY: Frances Coulson, partner and Head of Insolvency and Restructuring, Wedlake Bell

The news of the default by Recharge Industries in payment of the final instalment to purchase the British Volt business from Administrators EY will be a massive blow to the anticipated 3000 jobs and the almost double that number expected to be involved in its supply chain. The payment was due in April so the fact it hasn’t been paid some 4 months later suggests this may be a fatal blow to the deal.

It might have seemed a bargain at £8.6m, after talk of some £2bn of investment (including £100m from the UK govt) pre admin which failed to materialise when the company under its then management couldn’t meet the conditions to achieve it. Clearly significant investment is available for someone who can make the business work, but a start up of this nature faces huge challenges with a long wait in sight for prospective returns to investors. It is to be hoped for the UK and especially the North East that this can be turned around and complete.”

TOPIC: The judgment in the Supreme Court on Brake v Chedington Court Estate regarding whether bankrupt individuals can have standing to interfere in the conduct of their bankruptcies and where trustees’ powers may be limited.

COMMENT BY: Gavin Kramer, personal insolvency lawyer, Collyer Bristow  

This is good news for trustees (and liquidators).

The bankrupts (Mr & Mrs Brake) appealed the decision of HHJ Matthews at first instance and The Court of Appeal found in their favour, holding that the test of whether a bankrupt has standing to challenge the trustee’s conduct was wider than previously thought. It was not necessary that there be a prospect of a surplus in the bankruptcy. That decision, however, has now been overturned by the Supreme Court.

The Supreme Court, in allowing Cheddington’s appeal, has clarified (and narrowed) the test of when a party has standing to challenge the decision of a trustee or liquidator. The decision makes clear that when there is no likelihood of a surplus, bankrupts (or shareholders in a liquidation) only have standing to challenge the office holder’s decision ‘in a limited class of cases’.  In this case, there was no prospect of a surplus nor did the Brakes satisfy that alternative test.”

APPOINTMENTS OF THE WEEK

EXCELLO LAW

Edward Worthy (left) has joined Excello Law, the national, ‘new-model’ law firm as a member of its national Agriculture and Estates team. Formerly the Head of the Agriculture & Estates Team at Gepp Solicitors in Chelmsford, Worthy also has strong connections with the industry in the Home Counties and the South West. With a skill set which includes land registration, farmland development, solar and battery options, biodiversity net gain agreements, mineral extraction, agricultural tenancies, public access issues, and various rural freehold and leasehold work he is well-positioned to advise both landed estates and owner-managed farm businesses.

“I am delighted to be a part of Excello Law’s national Agriculture & Estates Team,” says Worthy. “Excello allows me to focus exclusively on delivering a first-class service to clients, without the distraction of traditional law firm management responsibilities. More than that – Excello allows me to give my clients the benefit of advice from other specialists who are national experts in their field.”

Worthy is known in the industry for his involvement in a variety of farming organisations including havng served on the National Legal, Parliamentary, and Property Rights Committee of the CLA (Country Land and Business Association).

SPECTOR CONSTANT & WILLIAMS

Nick Gova (left) has joined Spector Constant & Williams as a Partner to head up the firm’s new family practice. Formerly with Cripps, Gova is particularly well-known for his “experience in matters involving religious marriage and divorce, specifically, Hindu, Islamic and Jewish divorce. He is also the architect of the ‘Pup Nup’â, designed to safeguard the future of pets in a divorce. 

 We are always alert to how we can best meet the needs of our clients and look ahead of the curve to see where there is scope to represent a wider pool of clients. With that in mind, it was obvious that there’s a need for us in the family law space,” commented Alun Williams, founding Partner at Spector Constant & Williams. “Nick’s arrival marks an exciting time for us. We are growing and looking at how we can support clients across all of their needs. Nick will be a major asset to the firm and we welcome him to the Spector Constant & Williams family.”

Gova’s arrival will see him spearhead the firm’s drive into family law and follows the launch of its insolvency practice earlier this year. 

It may be August but please continue to send your legal diary stories, your legal insights and comments plus appointments to

fennell.edward@yahoo.com

And let’s hope the Lionesses have a great result tomorrow!