Edward Fennell’s LEGAL DIARY

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

September 1st 2023

Editorial Contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK

on the Church and the Law

Much ado this week in the newspapers about England ceasing to be a Christian country. Matched, it must be said, by some regret at the community vacuum that this has left in many places.

Keen to show its continuing relevance to civil society, however, one cathedral – Winchester – has immediately stepped in to host this Autumn a series of events exploring law and order, the nature of policing and the justice process. 

“Winchester Cathedral’s role in the world of law not only underscores its enduring importance as a symbol of tradition and continuity but also highlights the intricate interplay between faith, governance, and the pursuit of justice throughout the ages, “commented Catherine Ogle, the Dean of Winchester.

Historically, of course, the giving of evidence on oath – having sworn on the bible to tell the truth – was a foundation of the justice system.  No longer the case, of course. But has it made any difference?

The LegalDiarist

In this week’s edition

LEGAL DIARY OF THE WEEK

Quite A Thriller!

Small But Perfectly Formed

HF Going Great North of the Border

Holy Communion – It’s a fintech miracle

CONTRIBUTED ARTICLE OF THE WEEK

No holiday for directors…by Edward Starling

LEGAL COMMENT OF THE WEEK

on cyber-related personal data breaches, equal pay for women, Microsoft’s plans to unbundle Teams, Wilko and the legal status of crypto currencies.

 

LEGAL DIARY OF THE WEEK

Quite A Thriller!

Needing an absorbing, old-fashioned thriller to while away the Bank Holiday weekend the LegalDiarist turned not to Eric Ambler but, instead, to an account of a dispute worth $120M between Marriott International Inc. and Jnah Development SAL in which Beirut’s Court of First Instance became involved earlier this month.

To be blunt, the plot of the story is so complicated that no attempt is going to be made to unravel it here. The comments at the end of the case by Mr Ziad Fakhri, a real estate investor, illustrates the tenor of the proceedings “I’m pleased that the Lebanese Court has dismissed these meritless claims that sought to prevent me from establishing my right to damages in what has been a long-fought dispute with Marriott International Hotels and related individuals. I look forward to closing this chapter which began with Marriott’s breaches of contract and fraudulent activities, which started over 20 years ago.”

The case is now moving to an ICC Tribunal in Paris to be heard in November in an attempt to bring it to a conclusion. Intriguingly among the complaints is an alleged threat to a court-appointed expert in connection with the diversion and laundering of $3.2 million allegedly paid by Marriott to bribe witnesses during a previous arbitration!

What the final chapter will reveal is anyone’s guess.

Small But Perfectly Formed

– Here’s one we made earlier 0 Image courtesy of Vyapi

Legal fees are always a burden – especially to smaller businesses. But a proposal to help them out might also be bad news for smaller local law firms with commercial departments. This week Vyapi, a global legal services company,  launched what it describes as ‘affordable and customized contract solutions designed to meet the unique needs of small and medium-sized businesses’.

“More than 90% of companies are small businesses,” explained Vyapi’s Founder & Director, Sumesh Sawhney “While contracts are their life blood, many struggle to handle contracts due to limited budget and staff. Many small businesses lack legal, sales, procurement, finance or HR contract teams.”

Apparently the Vyapi team has plenty of experience working for law firms, legal departments, and consultancies, including Clifford Chance, Jones Day, Tata Consultancy Services, Wipro Technologies, UnitedLex, and Consilio.The company is staffed by experienced US, UK and Indian lawyers who have supported the contract demands of global Fortune 500 companies. “The company’s contract experts learned from the best, servicing the world’s biggest companies,” they say.

So the idea is that precedents learned from working with the big guys will now be made available to its new smaller clients. Wonders will never cease.

For more go to: We Do Contracts – Vyapi

HF Going Great North of the Border

Public mural art in Glasgow – Image courtesy of Visit Glasgow

HF, the firm formerly known as Horwich Farrelly, is gradually extending its grasp across the British Isles. With offices up and down England from Southampton to Manchester it has now mastered the Celtic regions as well with offices in Ireland, north and south, Wales as well as just expanding further with its new office on West Regent Street in Glasgow.  

“Moving to a larger, more modern office space accommodates the Glasgow team’s recent expansion, with room to increase the team further in support of their ambitious growth plans,” HF says. “Powerful wifi capability will further enable the firm’s cloud-based technology upgrades and innovations alongside a more welcoming, comfortable and energising environment for employees and clients alike.”

Best known for the firm’s work in the insurance and commercial business HF’s Head of Scotland, Steven Smart, said, “ Moving into our own tailored office is a sign of our continued growth and commitment to providing the unique HF approach in Scotland, at what is a very exciting time to be part of our firm.”

Whether this is all a biff in the sporran for Edinburgh one hesitates to speculate.  

Holy Communion! It’s fintech miracle curtesy of Burges Salmon

Can fintech be good for ordinary people and transform their lives? Sounds a big ask but Daniel Hegarty, the  Founder and CEO of the significantly-named Communion, claims his business can make it so. “We believe everyone has the ability to take control of their money and build a buffer against the world, so long as they’re given the right conditions, tools and support to do so. We created Communion for people who want to live life with more autonomy and less fear. “

According to Communion’s research, over 90% of people between 18 to 40 years of age have suffered from money anxiety and, for one in four of them, there isn’t a day that goes by when they don’t worry about money.

Helping people get out of this predicament is what Communion claims it is all about, they say. And the key to it is by making small but regular saving part of people’s lifestyle. And that’s where the fintech come in.All users start their Communion experience the same way: by opening an FSCS-protected savings account and practising a daily saving ritual for 10 days. During this time, members are encouraged to reflect on beliefs they hold about money and the way they spend while ritually saving just £1 a day.”

If it works then it’s all to the good. And making it happen legally is down to the fintech team at Burges Salmon. “The mission of Communion, including to instil good savings habits and promote members working towards more financial autonomy, is something we can all get behind,” said client relationship partner and head of fintech, Martin Cook. “This is a brilliant initiative highlighting the power fintech has in tackling today’s societal challenges and improving financial awareness among consumers.”

Hope that the Chancellor of the Exchequer is taking note of this one.

CONTRIBUTED ARTICLE OF THE WEEK

No holiday for directors…by Edward Starling

 
The Insolvency Service reported a 51% rise in administrations  in July (compared to last July) showing little easing for companies battling painful interest rate rises, inflation and slow growth in the UK economy. Edward Starling, shares his advice for Company Directors on how to manage  

Economic uncertainty, high supply costs, increased cost of the labour force, insolvencies throughout the supply chain…. the list goes on. Being a director of a SME is never easy but in many ways today’s environment is particularly challenging and the holiday season doesn’t always provide respite.

But how does this environment have an impact on a director’s job and duties? Directors will be dealing with all sorts of questions such as: are we insolvent or arguably insolvent? Can trade continue? Should trade continue? How does that even happen- who should I pay and who should I not pay?

Directors need to be careful that they act appropriately and avoid trading whilst insolvent (called “wrongful trading”) which can also expose directors to financial liability and also potentially disqualification.

There are practical steps that directors can take to ensure they are complying with their duties as directors but also protect their own position.

  • Don’t panic but act quickly. Stop, stand back, and monitor and understand every aspect of the business.
  • Trust your instincts. Gut feeling based on the basis of good and up to date financial and trading data goes a long way.
  • Don’t bury your head in the sand.  If things go wrong and a court looks back with the benefit of hindsight, pretending nothing is wrong, blind delusion or just the inability to deal with what is a very challenging situation will do directors no favours.
  • Do remember that if the company is insolvent or in financial distress, the duty of directors to shareholders changes such that they also need to consider the creditors. Shareholders are no longer the primary consideration.
  • Do have an open dialogue with lenders. Lenders hate to be the last to know what is going on and it could limit options to minimise loss to creditors or save the business.
  • Don’t let other issues affect judgement . A decision based on trying to avoid liability under a personal guarantee, for example, will open up directors to challenge.
  • Don’t declare a dividend, pay parties connected to directors or shareholders or otherwise transfer money or assets from the business, without taking advice.
  • Do record decisions. Make sure the decision making process, the underlying information and decisions are documented.

Using this guidance as a basis, directors can help protect creditors of the business and protect themselves. And following this advice, directors might also get a well-earned break.

Edward Starling is a Partner at Wedlake Bell

LEGAL COMMENT OF THE WEEK

TOPIC:  The disclosure by the Information Commissioner’s Office (ICO) of a three-fold increase over the last year in self-reported cyber-related personal data breaches to the ICO by financial services organisations.

COMMENT BY: Jon, Baines, Senior Data Protection Specialist at Mishcon de Reya

“The ICO hasn’t speculated on why there has been such a big increase in reports. It could be that cyber criminals are targeting the financial services sector even more intensely than previously. Personal data breaches of any kind, but particularly cyber incidents, put customers of companies in the sector at potential risk of fraud and identity theft.

“Although the ICO has not tended to issue fines for failings in this area, the increase in reported incidents could – and possibly should – lead to a review of that approach. In any case, fines remain a risk for the most serious of incidents, as does the possibility of legal claims from customers. And just as important for financial services companies is the reputational harm that can result.

“Businesses in the sector should regularly review their security arrangements to be sure they are up to scratch. But they also need to be aware that not every incident has to be reported to the ICO – a malicious attack that does not result in a risk to customers is unlikely to need reporting. It is important to do a proper – and prompt – risk assessment of any security incident, and where necessary, take appropriate professional and legal advice.”

TOPIC: Microsoft’s plans to unbundle Teams and make it easier for competing apps to be interoperable so as to satisfy the EU Commission

Comment by: Alex Haffner, specialist competition lawyer and partner at Fladgate.

“History has repeated itself here. In the mid-2000s, Microsoft and the EU Commission battled over Microsoft’s bundling of Media Player into its suite of Windows software applications, a case which finally led to commitments being given by Microsoft to release versions of Windows in the EU which had the media player removed. Those commitments were only given after a series of court battles over the Commission’s original decision to fine Microsoft.

“This time it appears Microsoft is taking a different tack – proactively implementing agreed measures to unbundle Teams from Microsoft Office whilst the Commission’s investigation is ongoing. It now falls to the Commission to determine whether Microsoft’s initiative is sufficient to close its investigation. Affected third parties, including Slack whose complaint precipitated the original investigation and other video conference providers who compete with Microsoft, will undoubtedly want the Commission to carefully scrutinise the small print of Microsoft’s “offer”. But, it does seem that a conclusion to this particular investigation is now in sight and the court based battles of the past will be avoided here.”

TOPIC: Wilko’s redundancies and store closures put on hold due to rescue bids

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

“The “TUPE” regulations have the effect of transferring to a buyer of a business, contracts of employment for all employees. In addition, the buyer may inherit liability for dismissals which are deemed to be made “in connection with the transfer” – which may include workers dismissed now because the buyer cannot see a role for them going forwards.

With a business of the size of Wilko. These costs can be very substantial and can make a proposed business rescue non-viable.The problem is exacerbated in many cases by uncertainty on interpretation of the regulations, and their application to complex business. This adds substantially to other uncertainties inevitably involved in a business rescue.

TOPIC: Protection for women’s equal pay rights to continue when EU protection lapses at the end of this year

COMMENT BY:  Henry Clinton-Davis, Partner at Arnold & Porter

“There is a lot of politics at play here, but there was not much doubt that equal pay laws, which have been so long entrenched, would seriously be removed – especially by a government facing an election in a year’s time. Despite the great fanfare when the government initially threatened to automatically revoke most EU laws retained after Brexit, in the HR space at least, very little is scheduled to change, beyond some potentially welcome tweaks to the Working Time Regulations and to TUPE.”

COMMENT BY: George Clough, employment lawyer at Payne Hicks Beach

 “It is positive that the government is now committed to ensuring that Equal Pay protections will remain under UK law. Equal Pay legislation offers an important protection for female employees and a mechanism by which they can challenge their employers when they are paid less than their male colleagues for “equal work”; that is like work, work that is rated equivalently or work of equal value. While these claims may be complicated to prove as they require detailed analysis and comparison of the exact nature and value of roles of individuals or groups, the fact that they have a 6 month limitation period, as opposed to the usual 3 months for sex discrimination and most other employment claims is helpful for claimants. Moreover, the fact that awards of back pay for up to 6 years can be made, means that they are potentially significantly valuable claims.”

TOPIC: The legal status of crypto currencies 

COMMENT BY: Zaid Barem, Research Team at XS.com

“In new judicial developments, a court in the United States dismissed a class action lawsuit filed by a number of investors against Uniswap Labs as a result of being a victim of fraud as a result of their purchase of fraudulent tokens created using the Uniswap protocol. While the dismissal of that lawsuit was based on the fact that these tokens, which are decentralized finance applications (DeFi), are commodities and are not subject to the laws of securities regulation or exchanges. The judge also noted that Uniswap Labs is not responsible for damages caused by a third party.

I believe that what happened in the case against Uniswap Labs could be the first steps in clarifying the legal and regulatory environment for DeFi applications and could make investors’ concerns about sudden lawsuits and actions by regulators less and make them more predictable. On the other hand, this measure, and other similar possible measures, if taken in the future, may restrict investors’ confidence in these applications due to the inability to regulate them and enforce the law on them.”

Summer holidays coming to an end? No worries, you have next week’s LEGAL DIARY to look forward to. However, the week after that – September 15th – we shall be on holiday ourselves (but just for a week).

So please continue sending your Legal Diary stories plus legal comment, insights and appointments to

fennell.edward@yahoo.com