Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
October 6 2023
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT: M&A Put on Hold?
The table, as football pundits say, does not lie. Whichever way you look at it, M&A has been plunging. Worldwide, in the past nine month period ,M&A has crashed by 27% to a ten year low while, extraordinarily, in the same period European M&A is down by 45%. It is no wonder that some firms are starting to lay-off lawyers (unthinkable just a short time ago).
But whereas, formerly, London law firms could keep their heads up in both good and mediocre markets now their fortunes seem to be somewhat on the wane. For example in the Top 25 firms for ‘Global Principal Advisors Announced’ (see the latest report from the LSEG) just two London-based firms appear – Freshfields and Linklaters.
Now admittedly things are much better when it comes to EMEA where the table for ‘Any UK Involvement Announced’ features most of the usual suspects – Freshfields, Ashurst, Clifford Chance, Linklaters, A&O, DLA Piper, Herbert Smith Freehills, Addleshaw Goddard, CMS and Norton Rose Fulbright. Reassuring though this may be, however, it might suggest that, whilst holding their own in the ‘home region’, London’s Premier league law firms are being diminished globally. Certainly London still has GLOBAL strength – but it has it got strength in depth?
For full details see ‘Q3 2023 M&A Legal Advisory Review from LSEG Deals Intelligence’.
The Legal Diarist
In this Week’s Edition
+ LEGAL DIARY OF THE WEEK
– A Room With Plenty of Views
– We Take Interest in Our Clients
– Crisis among In-House Lawyers: Time to think Long-term
– Leader Role Transitions from Female to Male?
CONTRIBUTED ARTICLES OF THE WEEK
– How do we protect Intangible Assets? asks Stephen Townley FCIArb, JAMS Mediator and Arbitrator
+ The Law Commission Report on the Arbitration Act
by Robert Campbell, Partner, Christopher Jeffries, Associate and Emily Evans
LEGAL COMMENT OF THE WEEK
on HS2 decision, the Michael J Lonsdale insolvency and the underpayment of wages
LEGAL APPOINTMENTS OF THE WEEK
at
Brown Rudnick, Signature Litigation and Morgan Lewis
LEGAL DIARY OF THE WEEK
A Room With Plenty of Views
There is great excitement at the International Dispute Resolution Centre in London, where a state-of-the-art flagship hearing room – the IDRC Opus 2 Suite – has been installed and is open for business. As well as being a pretty cool room in itself it has, of course, all the latest whizz-bang technology to, as they put it, ‘facilitate modern hearings’.
So what does that mean in practice? Basically it means the ability to deal totally flexibly with a medley of people who could be sitting across the table from you or, indeed, across the other side of the world in time zones where most of the locals are asleep. In short, the room can be seamlessly adapted to ‘in-person, hybrid, and virtual’ proceedings.
Moreover, at a time when almost everyone has adapted to Zoom, the IDRC Opus 2 receives broadcast-grade audio and video feeds via the built-in high-quality AV equipment. That means there are no dodgy angles – the positioning of the equipment means clear line of sight of everyone involved. Plus the facilities are flexible enough to accommodate everyone’s preferences for making presentations —live video, Realtime Transcription, and evidence presentation—and bundles in a layout to suit their individual preferences.
“We are pleased to strengthen our long-standing partnership with the IDRC to drive innovation and bring more value to the international dispute resolution community,” said Oliver McClintock, Chief Commercial Officer at Opus 2 “Today’s lawyers rightly demand greater consistency and robust technology throughout the lifecycle of their cases, so they can continue to focus on the substantive issues of their case and deliver the best possible outcomes to their clients.”
The IDRC Opus 2 suite is now available for bookings on the IDRC’s website.
We Take Interest in Our Clients
Oh dear! Can this be a case of law firms behaving less than creditably?
Apparently, law firms which have earned interest on funds held for clients could come under scrutiny from the Solicitors Regulation Authority (SRA) if they do not account for that interest to clients in a fair manner, claims law firm RPC.
Until just a few months ago interest had been so miserly that nobody gave it much notice. No longer so! With the base rate now popping over 5% it is suspected that law firms are actually finding that money held on behalf of clients has become a nice little earner. “It is common for lawyers, particularly conveyancers, corporate lawyers and those specialising in personal injury, to hold substantial funds belonging to clients for varying amounts of time.” observes RPC.
“Given the regulatory pressures being applied to banks and investment platforms to pay more generous interest rates to customers, it’s only a matter of time before law firms face similar scrutiny from their own regulator, the SRA,” comments Graham Reid, Partner at RPC, who advises law firms on regulatory issues. As things stand, some law firms are paying out as little as 0.5% or 1% of interest on client accounts.
“With new enhanced powers to fine firms and a vigorous approach to rule enforcement, the SRA can be expected to take a very dim view of those that do not pay fair interest and thereby cause client detriment,” continues Reid. “The key messages are: Is it fair? Is it properly explained? Can you fully justify your decision-making to the regulator?”
Er, em, well, sort-of. Let me put it this way….let us think about it. Of course, we take our responsibilities to our clients very seriously. But…..we’ll get back to you.
Crisis among In-House Lawyers: Time to think Long-term
Not everywhere in the legal garden is rosy right now – M&A being a case in point (as above). But maybe an even more serious concern for global in-house teams, according to a much- discussed report by LOD and SYKE, is the issue of staff retention and morale. “Buoyant labour markets and a lack of career development and training opportunities are fuelling this trend, compounded by an intensifying battle for in-house counsel to balance proactivity and strategic work with constant firefighting,” claims the report.
One of the answers to this, inevitably, is a ‘quick march’ into adopting AI. But that’s not all. The report highlights several emerging trends, which illustrate how in-house teams are looking to combat this trend. This includes greater investment in outsourcing workstreams and increased use of data & tech to boost value. Hence
- Investment: “Outsourcing workstreams” has risen from fourth to the second largest investment area by in-house leaders. Lawyers remain the largest investment areas.
- Use of data and tech: 38% increase in leaders who agree or strongly agree that they use data to boost value. Further, a greater than 20% year-on-year increase in those who have or are developing an informal tech strategy.
- Operational efficiency: 33% of in-house leaders cite “ensuring operational efficiency” as a key strategic challenge.
“Whilst a tendency towards firefighting seems built into our nature as lawyers, we’re seeing in-house leaders very keen to make time in their day for the most important and not just the most urgent,” comments Simon Harper, the LOD Co-Founder. “This isn’t just good for strategy, it also alleviates the intertwined issues of staff morale and retention. As clearer and more pragmatic AI solutions are rolled out over the next twelve months, we also expect to see an accelerated shift from reflection to action. Scalable applications will be a key tool for legal leaders and their teams to step above the firefighting challenge.”
Read the report: Under Pressure – Finding relief from constant firefighting
Leader Role Transitions from Female to Male
Flex Legal was launched in 2017 but it first came to wider notice when it was highlighted by The Independent as ‘the fastest-growing female-led business in the UK’. Recognising the growing demand among employers for ‘interim’ paralegals and lawyers Flex Legal attracted an impressive following with over 6,000 interim paralegals and lawyers on its online platform.
The company’s style was very much inspired by its Founder and CEO Mary Bonsor. However given Bonsor’s real love being “incubating” new businesses she is now handing over the reins to James Lewindon (left) formerly the Head of Legal Resourcing at Konexo UK, Eversheds Sutherland’s alternative legal services division.
Under Bonsor’s leadership Flex Legal was certainly entrepreneurial. For example, she set up the Flex Trainee and Flex Apprentice initiatives which are designed to improve social mobility within the legal sector by seconding under-represented trainee solicitors to FTSE100 in-house legal teams. Meanwhile, the Government’s Department of Education has also recently approved Flex Legal’s registration on the Flexi-Job Apprenticeship roster, meaning they might be the only legal business who can provide flexible apprenticeships with the legal profession – certainly a game changer in the critically important ‘apprenticeship’ niche.
So as Lewindon takes over he has a hard act to follow. “As the legal market evolves, creating a diverse, inclusive, and representative industry is essential to its relevance and future success,” he says. “I am greatly looking forward to driving Flex Legal’s agenda forwards, and fostering exciting changes across the entire legal space.”
Meanwhile, Bonsor (who remains involved with the company) comments, “I am unbelievably excited to be working alongside [James] in pursuit of our mission to inspire and enable the legal workforce of the future. Most importantly, he’s a great culture fit!”
The question is, will Flex Legal still qualify as a ‘female-led business’?
CONTRIBUTED ARTICLES OF THE WEEK
How do we protect Intangible Assets?
asks Stephen Townley FCIArb, JAMS Mediator and Arbitrator
You may be shocked to learn that in 2020 , according to a graph produced by visual capitalist data stream from an intangible asset market study undertaken by Ocean Tomo that 90% of the value of Standard and Poor 500’s listed companies was accounted for in terms of Intangible Assets such as rights, IP, data, goodwill, software and so on as opposed to actual physical objects.
Creating and protecting these huge values depends in part upon laws that were originally conceived to confer a level of monopoly for a period of time over industrial and commercial processes and inventions (patents and designs) – plus also the creation, performance, distribution and reproduction of original creative or access controlled works (copyright and similar IP).
Some of these laws have adapted over time to try to catch up with technology. However, when we talk about machines using ‘generative AI’ to create their own work independently of human input the output process then ALL current laws are challenged.
It is well argued, of course, that there must have been human input to produce the data in the first place and which then forms the AI’s output . Without human input the ‘well’ from which AI draws would dry up. Should, therefore, the owner of the capital that led to the AI development and output be the ‘owner’ and be the person who is entitled to obtain protection?
Interestingly two countries (the UK and Ukraine) appear to offer some recognition of possible protection for AI technologies – but I suspect in the case of the UK this is more an issue of interpretation of the Copyright Designs and Patent Act 1988. This places the UK, therefore, in the unusual position, in contrast to most other jurisdictions, of being able now to decide whether this Act offers protection for computer generated works. If so will the protection be granted to the AI developer or the author whose work is facilitated by the AI model?
What we now need is for the UK courts to decide who is the elusive figure “by whom the arrangements necessary for the creation of the work are undertaken”. In the end the answer is likely to turn on the evidence. But that will require the unbundling of machine output from its original human input and then deciding whether the human input is sufficiently material to meet the test set out in the existing legislative drafting. Interesting questions!
Stephen Townley was the founder of Townleys, the ‘original’ specialist sports law firm. He now works through Stobbs IP Tel: +44 07880 505220 E: steve@activerights.com www.stephentownley.com
The Law Commission Report on the Arbitration Act
by Robert Campbell, Partner, Christopher Jefferies, Associate and Emily Evans
The Law Commission of England and Wales has published its final report in review of the Arbitration Act 1996 (the “Report”). As expected, following the First and Second consultation papers released by the Law Commission, the Report concludes that “the Act works well, and […] root and branch reform is not needed or wanted.” This reflects widespread views of practitioners that the 27-year-old act is still fit for purpose and represents a gold standard for arbitration globally.
There are, however, a few initiatives and several “minor corrections” detailed in the Report. On the role of arbitrators, the Report suggested that rules regarding arbitrator independence should be codified into law and that arbitrator immunity should be extended. It also recommends that, subject to the agreement of the parties, the arbitral tribunal should be able to issue an award on a summary basis to avoid wasting time on issues that have no real prospect of success and no other compelling reason to continue to a full hearing.
Importantly, the Report suggests a new default rule in the absence of a choice of law for the arbitration agreement. In cases such as this the law governing the agreement will be the law of the seat of arbitration. This recommendation is a simplification of the current common law rules.
The Report recommends that following a challenge to the jurisdiction of the arbitral panel, if the tribunal has ruled in favour of such a challenge, then any further appeal would not get a full rehearing. Under these proposals the tribunal cannot consider any new grounds or evidence unless the grounds could not have been advanced at the first hearing, and the evidence can only be reheard if it is in the interest of justice to do so.
There were also certain areas consulted on by the Law Commission where no recommendations for change were made. These include there being no need for a default rule in favour of the confidentiality of arbitral proceedings and no changes required to Section 69 on appeals of points of law to arbitral awards.
The Report now sits with the Ministry of Justice who will attempt to bring new legislation through parliament before the next general election. However, it is clear the Arbitration Act 1996 remains fit for purpose and wholesale changes are not required.
Robert Campbell is a Partner, Christopher Jeffries is an Associate and Emily Evans is a Trainee Solicitor at Faegre Drinker Biddle & Reath
LEGAL COMMENT OF THE WEEK
TOPIC: The Prime Minister’s announcement about the cancellation of HS2 north of Birmingham
COMMENT BY:Sarah Beer, Partner at Excello Law and compulsory purchase and compensation specialist, who acts for people and families impacted by HS2.
“The decision to scrap Phase 2 will infuriate many. Countless business owners and several county, district and city councils will be outraged by the decision to pull the plug on the scheme after so many years, and when so much effort has been spent on planning and investment. In the case of Phase 2a, many properties have already been compulsorily acquired, turning people’s lives upside down.
“I have seen too many Claimants on the brink of, if not already in, mental collapse because of the stress that this scheme has caused them. That is completely unacceptable. That stress is caused by the threat, and then the reality, of having their homes, farms and businesses taken away from them, moved or closed down by HS2. However, compounding that stress is the difficulty they have faced with HS2 and negotiations on their claim.
“They are suffering from the years of mental and often financial anguish they’ve been put through. Years when this section of the project made its way through the Parliamentary processes while the properties along the route were blighted, and then in many cases where people’s homes, farms and other businesses have been compulsorily purchased from them.
“Properties affected by Phase 2b have been blighted already for a period of 10 years since the proposed route was first announced in 2013. Property owners have understandably been put off investing in their homes and businesses knowing the money will be wasted if the property is ultimately demolished, and without the certainty of knowing they will be able to recover all such investment costs from the Acquiring Authority.
“If Phase 1 does go ahead, then things need to change – and now. We need HS2 to take a fair and reasonable approach to negotiations with the focus on settlement in a time and cost-efficient manner.
“I hope also that the push to get these claims finalised fairly and reasonably will be supported, and enforced, by the Department for Transport.”
TOPIC: The insolvency at construction group Michael J Lonsdale
COMMENT BY: Marc Hanson , Construction Group Partner, Mishcon de Reya
“There are increasing concerns as to the health of other contractors who might have agreed fixed price contracts during COVID-19 and who have been suffering from high inflation following the war in Ukraine.
“High interest rates and the lack of credit are also having a significant detrimental impact on contractor cash flows.
“One area of focus will be on whether delays in payment by main contractors (as alleged by MJL) played a major part in MJL’s insolvency. The BPF (representing the major UK propcos and institutions) have this month produced a fair payment charter that includes recommended contract clauses that would require main contractors to be more transparent about how quickly and fully they pay their subcontractors.
“In the short term, MJL’s insolvency will likely drive inflation for M&E work and will drive increasingly risk averse behaviour from main contractors.”
TOPIC: The landmark Supreme Court ruling this week regarding workers’ right to challenge ongoing linked underpayments in their wages.
COMMENT BY : Shantha David, UNISON head of legal
“UNISON’s intervention has ensured the law has now been corrected. The previous interpretation meant workers couldn’t get compensation where a series of similar underpayments had happened three or more months apart.
“The Supreme Court understood here that this could allow some employers to game the system by spacing out holiday payments over more than three months. For years, many workers have been denied unfairly the chance to have their legitimate claims heard. This judgment ensures they’ll get all the wages they’re rightfully owed.”
LEGAL APPOINTMENTS OF THE WEEK
BROWN RUDNICK
Robin Pickworth (left) has joined Brown Rudnick as a partner in the Firm’s Litigation and Arbitration Practice Group in London. Previously with Armstrong Teasdale, where he was head of the UK Civil Fraud practice, Pickwith has extensive experience in high-value, high-stakes international fraud and private client disputes across Europe, the Middle East and Africa. Recently he has obtained urgent injunctions to restrain and recover assets arising out of the purchase of personal protective equipment (PPE) during the COVID-19 pandemic and he is currently acting in the Mozambique tuna bond matter. The Legal 500 has ranked Pickworth as a ‘Recommended Lawyer’ in Commercial Litigation for three years.
“As London continues to be the destination of choice for high-value and high-stakes disputes, we are thrilled to welcome Robin to our talented and busy London disputes team,” commented Neill Shrimpton and Jane Colston, co-practice group leaders of Brown Rudnick’s Litigation and Arbitration Practice in London “His reputation as a highly skilled litigator as well as his breadth of experience on matters involving high-net worth individuals, governments, corporates and investors make him an important addition to Brown Rudnick and we look forward to collaborating with him to deliver successful results for clients.”
SIGNATURE LITIGATION
Kate Gee,(left) a commercial fraud and crypto litigator. has been promoted to partner at Signature Litigation. Formerly with Allen & Overy, Gee has more than 13 years’ experience acting in complex, high value, cross border disputes, including civil fraud and asset tracing claims, commercial litigation and banking litigation. She has advised on all stages of litigation, from pre-action through to fully contested trials and enforcement matters.
Of late, Gee has been active in relation to disputes relating to digital assets, cryptocurrencies and technology and advising on legal issues arising out of investor disputes, fraudulent conduct, legal technology, market innovation and other legal risks.
Alongside focusing on greenwashing litigation claims and ESG-related disputes Gee is a prominent member of the civil fraud legal community, including co-founding of ACROSS Fraud, and actively participating in the Female Fraud Forum and Crypto Fraud and Asset Recovery Network. She was recently shortlisted for Woman of the Year – International in the Citywealth Powerwomen Awards 2024. “It is important that the firm has the ability to offer partnership to its members who demonstrate their merit and commitment,” commented Graham Huntley, the Signature Founding partner.
MORGAN LEWIS
Vishnu Shankar (left) has joined Morgan Lewis as a partner resident in London. He was previously the Head of Legal (Regulatory Enforcement) at the Information Commissioner’s Office (ICO), the United Kingdom’s lead privacy and cybersecurity regulator. Prior to joining the ICO, he spent more than a decade in private practice, including as a partner, in London, New York, and Dublin, focusing on technology, data privacy, and cybersecurity law as well as intellectual property transactional matters.
Vishnu will now represent clients in advisory, regulatory enforcement, litigation, and crisis management matters involving EU and UK data protection. His interests include digital and technology regulatory laws across a wide range of industries from. He is also active in representing clients in India and South Asia.
“Ensuring the security of data and private information is top of mind for our clients, no matter their size or specific industry,” said Firm Chair Jami McKeon . “Vishnu, who brings insight into these important matters honed during his time in private practice and at the UK’s privacy and cybersecurity regulator, can assist the increasing number of clients who rely on Morgan Lewis for such high-stakes privacy and cybersecurity mandates.”
We hope that you have found this edition of the Legal Diary interesting – and, maybe, even useful. If so, please relay on to colleagues.
Despite the England cricketers’ miserable performance in India we still intend to publish next week so please continue to send your legal diary stories, insights and comments to
fennell.edward@yahoo.com