Edward Fennell’s LEGAL DIARY

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

10 May 2024

Editorial contact: fennell.edward@yahoo.com

The Grand Inquisitor Jason Beer KC-
Image courtesy of 5 Essex Chambers

According to a report on the TODAY programme on BBC Radio 4 this morning, a company is now offering the public the experience of being members of jury in a mock trial. The aim is to be both entertaining and educational about the jury process. As a barrister observed somewhat dryly, however, the public can already pop in to their local Crown Court to see a real trial for free.

You don’t even need to leave home, however, to see the gripping drama/tragedy/scandal (take your pick) as the Post Office inquiry plays out on our TV screens. Recent testaments from senior Post Office lawyers reveal, perhaps, as much about the human condition as most plays on the London stage. Not so much ‘based on a true story’ but under interrogation from Jason Beer KC , Counsel to the Inquiry, the truth forensically exposed. “Is this a liar, I see before me?” one sometimes imagines in the speech bubble.

The LegalDiarist

In this edition

– REVIEWED & CLEARED READY FOR TAKE OFF

– ACTION FOR BRAIN INJURY WEEK GETS BACKING FROM CLARKE WILLMOTT

– VACCINATION QUEEN GOES TO THE PALACE

– AI FUELS EXPENDITURE BY LAW FIRMS

AI Age of Opportunity? by Avneet Baryan

on Argentum v The Silver, the Sharp Corp Trial, Ofcom and age checks

at Irwin Mitchell and Kennedys

REVIEWED AND CLEARED READY FOR TAKE-OFF

What – and who – ‘comes round, goes round’ in both the law and the media. So fans of Gill Phillips, the distinguished former Director of Editorial Legal Services at The Guardian, will be intrigued to see that she is one of a clutch of top lawyers picked up as consultants by Reviewed & Cleared, the sharply-named legal advisors to content creators.

As Alex Wade, the Chief Executive Officer at Reviewed and Cleared points out,We’re 50-strong now and have moved into providing business affairs and employment advice as well as our traditional content work.”

The credentials of the new recruits sounds like an honours list from a media law award ceremony with Wiggin (Adrian Dicker), Harbottle & Lewis (James Vaughan-Jones) and Hearst ( Emily Daniell) all featuring along with the BBC (Ben Power as well as Gill Phillips). But the world of the latest media also features courtesy of Kelsey Farish an IP and contracts lawyer who is an industry-leading expert on AI.

“I’m thrilled to welcome such an outstanding array of talent,” said Wade who had extensive experience at The Times. “Our new colleagues add immensely to our existing expertise in content and compliance, business affairs and AI, and employment law. R&C continues to grow at a rate of knots, as we advise content creators on everything they will encounter from the germ of an idea to its realisation in any media, in any format.”

How much further can Reviewed & Cleared go, one wonders, as AI starts to transform the law of intellectual property, fraud and libel (as well as almost everything else).

ACTION FOR BRAIN INJURY WEEK GETS BACKING FROM CLARKE WILLMOTT

Action For Brain Injury Week – created by brain injury charity Headway in 2010 – opens in a fortnight’s time (20th-26th May) and one of its key long-term partners is Clarke Willmott, an accredited head injury solicitor.

A major theme this year is how drastically brain injury disrupts people’s lives as illustrated by ‘A Life Re-Written’ https://www.headway.org.uk/news-and-campaigns/news/2024/abi-week-2024-a-life-re-written/.

“The campaign will tell the story of plans gone awry,” said Lee Hart, partner and personal injury team manager at Clarke Willmott. “Most of us have at least a rough life-plan in our heads. However plans can be violently thrown off course either by an illness or accident leading to brain injury. These events will often come out of nowhere and may spark a re-evaluation of life aims and objectives, requiring a recalibration of what is important to us.”

Philip Edwards, an Accredited Brain Injury Specialist with the Association of Personal Injury Lawyers and a Clarke Willmott’s brain injury claims experts, added, “In my role representing brain injury survivors, I am constantly reminded of the life-changing impact of these injuries and I will do everything in my power to raise awareness and offer support to those who have been injured.”

Colin Morris, director of communications at Headway, said the charity would also be conducting a survey to ascertain how people feel their life stories have changed as a result of brain injury. “We will showcase inspiring stories of resilience and post-traumatic growth, whilst shedding light on the realities of life post-brain injury.”

VACCINATION QUEEN GOES TO THE PALACE

Beverley Sunderland at the Palace with her husband

Full credit to Beverley Sunderland, founder and partner in the niche employment firm Crossland Employment Solicitors in Abingdon, who devoted her time in lock-down to helping co-ordinate a 400-strong volunteer force. Based at the Vaccination Centre at Newbury Racecourse she organisedfthe delivery of over 66,500 vaccinations during the crucial period from January-June 2021.

“We will never forget that time, or the amazing efforts of all the 400 volunteers who stepped forward to ensure the vulnerable and local community were vaccinated as quickly as possible, and worked in partnership with the great NHS team who got the centre up and running so quickly,” says Sunderland. “But I wouldn’t have been able to consider taking on this major role if it hadn’t been for my amazing colleagues who stepped up to enable me to do it. They worked tirelessly despite home schooling their children, to ensure all of our clients were fully supported at this time and also helping worried and scared members of the public who were ringing in trying to understand the furlough scheme or reporting furlough fraud.

“Some law firms had put notices on their websites making it clear they could not deal with anyone who was not already a client, but our team took a much more public spirited approach and divided up the emails and calls between them and answered them, all in their own time.

“We decided to share our knowledge on the constant changes to the furlough scheme and we worked every weekend to send an update on what the new rules meant. One of my proudest moments professionally is still being at an event just as things opened up again and another guest who worked for a firm of accountants looked at my name badge and said  ‘are you the same Beverley Sunderland who was sending out the furlough updates?  They were our lifeline and we waited for them every week’.”

All of this was celebrated this week when Sunderland and her husband attended a royal garden party at Buckingham Palace hosted by the King. A appropriate post-script to an extraordinary period in recent history.

AI FUELS EXPENDITURE BY LAW FIRMS

Further evidence (if it were needed) of the growth in interest in AI among law firms comes from the Q1 2024 Thomson Reuters Law Firm Financial Index (LFFI) which showed that the sector continues to heavily invest in technology.

“Law firms have positioned themselves well and are embracing the opportunities with generative AI; the pace of adoption will only continue to increase,” said Raghu Ramanathan, who joined Thomson Reuters earlier this year as president of Legal Professionals. “This technology will lead to efficiencies and increased productivity, enabling lawyers to deliver higher-quality work and provide even more valuable counsel to their clients. As firms work with their clients on a strategic approach to making the most of new technologies, both the client and firm will benefit.”

In terms of ‘real technology investment’ (that is the growth in spending on technology minus inflation) law firms have been investing at their most rapid pace since 2014. Generative artificial intelligence (AI) is clearly the bright new factor which is shaping decision-making. “And firms are effectively controlling costs in other areas to keep focusing on their technology investment,” comments Thomsons Reuters.

Meanwhile, in good news for the sector, transactional practices appear to have stopped contracting, with corporate growing by 0.6% (reflecting growth in the wider economy). This, in conjunction with the new set of rates, contributed to the strong revenue growth especially in the field of litigation which expanded by 3.8%.

AI Age of Opportunity? by Avneet Baryan

The last year has seen exponential growth in the development and use of AI; a new dawn some would say. For junior lawyers is it a friend or foe? Will it lead to fewer jobs or is it an opportunity?

AI is not only essential for junior lawyers’ professional growth but it is an opportunity to be more effective. That is of course all very easy to say but how is AI an opportunity, how can junior lawyers fully appreciate the capabilities of AI (as well as the risks) and how are and should law firms be supporting junior lawyers.

AI Opportunities

We are only at the tip of the iceberg with this – AI automates routine tasks like legal research and early draft generation, freeing up valuable time for junior lawyers to work on more matters, perhaps more wide ranging areas also. It can analyse vast amounts of data, uncovering patterns and precedents that might otherwise go unnoticed through the typical human review process (for example in legal investigations, litigation disclosure tasks). The time saving is unparalleled. AI can also assist in case assessment, risk prediction, and strategic planning. LexisNexis for example are soon to be rolling out their new Lexis+AI platform in the next quarter which will offer AI solutions to all firms that subscribe.

But it isn’t all roses and sunshine, AI algorithms can inherit biases from training data, leading to discriminatory outcomes. Further, decisions made by AI systems may lack transparency, posing challenges to ethical reasoning. Some legal tasks will also be replaced having an impact on the role of junior lawyers.

Training for Junior Lawyers

For AI to be properly utilised, junior lawyers must comprehend AI’s strengths and limitations to make informed decisions. Junior lawyers will have to make judgements on what tasks require the human touch and those that are best for AI tools. Junior lawyers also need to ensure usage of AI is compliant with their ethical duties as solicitors – for example, by being sure that confidentiality is protected with the use of any AI tools. Above all, all lawyers, not just those junior, will have to be transparent in their use of AI and ensure that proper records are kept and results are sufficiently scrutinised and spot-tested.

The investment needed from law firms

The key is setting up upskilling programs which specifically deal with the above issues: technical AI skills and soft skills like client interaction. Knowledge sharing on AI pitfalls and successes and being open and transparent is what is needed. Firms will also have a pivotal role to play in ensuring responsible use of AI which will be evolving every day given the nature of this fascinating technology.

Conclusion

The AI Age of Opportunity is just that for junior lawyers – the technology has to be embraced and in fact junior lawyers are the ones on the ground who will play a key role in making assessments about the suitability of use to ensure that preservation of a solicitors’ ethical duties. The technology will also lead to more conversations across all levels giving junior lawyers more of a voice on what has worked or not and why as well as encourage innovation in serving client needs which is of significance to all legal businesses. Junior lawyers are needed, the human touch is needed, junior lawyers just need to be armed with AI knowledge and be poised to test and challenge.

Avneet Baryan is a Senior Associate (Mills & Reeve LLP) and President of the Junior London Solicitors Litigation Association

TOPIC: The Supreme Court ruling in Argentum v The Silver to the effect that the full value of silver bars recovered from a Second World War shipwreck would be immune from a salvage claim under the principle of State immunity.

COMMENT BY: Jonathan Goulding, Senior Associate, HFW (who was part of the team acting for the appellant, the Republic of South Africa)

It is not just the Government of South Africa that will be grateful for this landmark and first of its kind ruling from the Supreme Court today. Indeed, governments around the world will be relieved that the court has decided that if the salvaged cargo in question was intended for state use, such as minting currency as in this case, it falls within the remit of state immunity and can be recovered by the state.

As we continue to learn more about the ocean seabed, many more historic wrecks have already been targeted by salvors for the potentially valuable cargo that they carry, and many more will be discovered in time. In light of this ruling, anyone hoping to recover valuable lost cargo, and bring it to the UK to claim ownership of it, will first need to take steps to identify the original owner and make contractual agreements with them to salvage cargo before attempting to do so.

This will provide a great deal of confidence for governments that valuable goods moving around the world will not be totally lost in the event that the ship carrying them is involved in an incident. It may well be that the decision from the UK Supreme Court today will have a bearing on how other jurisdictions decide on similar cases moving forward.

In short, the court has firmly sent a message to those hoping to find and claim ownership of lost treasure that finders are not always keepers.”

TOPIC: The Supreme Court decision this week in Sharp Corp Ltd (Respondent) v Viterra BV (previously known as Glencore Agriculture BV) (Appellant) [2024] UKSC 14,

COMMENT BY:  Varun Zaiwalla, barrister at Zaiwalla & Co, the solicitors for the respondent.

 “The main issue in this case, quite common in cross-border commercial transactions, was the basis on which to value a seller’s damages when the buyer failed to accept delivery of a cargo after it had been customs cleared and unloaded at the delivery port in India. An arbitration panel of the Grain and Feed Trade Association (GAFTA) found that Sharp (the Buyer) should compensate Viterra (the Seller) on the basis of a notional new contract, a position which was upheld when appealed to the High Court under the Arbitration Act 1996, s. 69.

“In finding in Sharp’s favour, the Supreme Court has cut through Viterra’s argument that its losses should be calculated by reference to the costs of a fictitious new contract, even if this meant a significant financial windfall for Viterra. The correct answer was to look at the basic reality of the value of the goods which were actually left in Viterra’s hands.

“This judgment reinforces the classical position under the common law and the English Sale of Goods Act, and promotes certainty and stability in international sales transactions, a large number of which are conducted according to English law. As a result, when anything goes wrong in an international sale carried out under English law, traders may rely on the ‘compensatory principle’ to assess their losses, which in the language of the Court provides a “straightforward and readily applicable measure of damages which will enable the innocent party to be put into the same financial position as it would have been in had the contract been performed and which does not depend upon the action actually taken by the innocent party.”

“At the same time, the Supreme Court has signalled that when deciding appeals on questions of law under the Arbitration Act 1996, s. 69 the Court should not introduce issues of law or fact that were not before the arbitral tribunal, as the Court of Appeal was found to have done in this case. As such, this judgment reflects the general attitude and approach of English courts to allow considerable deference to arbitrators and to minimise judicial interference in the arbitral process.”

TOPIC: The news that Ofcom has proposed age checks to protect children from social media

COMMENT BY: Tamsin Allen, Media Partner, Bindmans

“The  Online Safety Act was heralded as a new way to protect children online.  Ofcom’s proposals are an encouraging first step, but the proof of their commitment will be in their willingness to impose sanctions on big tech for compliance failures.  The Act gives them new powers to fine companies up to 10% of global turnover, huge sums which could finally penetrate big tech’s armour.”

IRWIN MITCHELL

Kim Leslie is joining Irwin Mitchell as a Partner to lead its Complex Personal Injury team in Scotland. She will join the existing Irwin Mitchell Scotland personal injury team alongside senior associate David Bell. Previously with Digby Brow, Leslie has specialised in personal injury law for 24 years, is a Fellow of the Association of Personal Injury Lawyers (APIL) and is currently an Executive Director of Association of Child Abuse Lawyers.

Her CV embraces a wide range of personal injury work and international claims and she is noted for having been instrumental in leading numerous complex claims. She specialises in abuse and criminal injury claims and is Chair of ‘Restoring the Balance of Justice’ which works to overcome the barriers to justice in Scotland for people who’ve experienced stalking and harassment.

Irwin Mitchell has a reputation in Scotland for supporting the victims of major incidents such as the Edinburgh Legionnaires disease outbreak and the Glasgow Clutha Pub Helicopter crash.

“Kim is a great addition to our complex personal injury team and we’re delighted to have her on board as we seek to significantly grow our PI practice in Scotland,” said Mark Higgins, Managing Partner for Irwin Mitchell Scotland.

KENNEDYS

Anne Kentish (left) has joined Kennedys as a partner in Scotland, based in Edinburgh. She was previously at HBM Sayers and then Clyde & Co, where she led the professional indemnity team in Scotland. Having specialised in professional negligence litigation for over 25 years she has particular expertise in defending legal professionals facing negligence claims and conduct complaints. She is ranked Band1 in professional negligence in Chambers and a Leading Individual in professional negligence in the Legal 500.

Commenting on her appointment Kentish said, “Kennedys’ reputation in professional indemnity is very impressive, and the firm’s clear growth trajectory is exciting. I’m looking forward to building on what I have achieved in my career to date with the Kennedys’ team.

Rory Jackson, managing partner and lead liability partner for Kennedys in Scotland, said,“As we approach the milestone of Kennedys’ tenth anniversary of opening offices in Edinburgh and Glasgow, the ongoing expansion of our team demonstrates our continued commitment to growth in Scotland and to the vibrant Scottish market.