Edward Fennell’s LEGAL DIARY

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

October 20 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Momentous events?

All over or just the beginning of something big?

2001 has gone down in history for 9/11. Last year, 2022, for Russia’s invasion of Ukraine. This year, sadly, for what is already being called the Israel-Gaza War.

By contrast events in the legal world might not count for much – let alone mere mergers between law firms. Yet for those who make a daily living in the law business the A&O Shearman Merger could become a landmark event.

In the mid-1980s the City of London changed, fundamentally and systemically, with Big Bang de-regulation. The practice of corporate law changed with it and emblematic of that change was the creation of Clifford Chance – which then headed off to become the largest law firm in the world – through the welding together of Clifford Turner and Coward Chance. Such a mega firm with international interests pointed the way to the future.

Whether this new A&O Shearman transatlantic melding will have the same impact remains to be seen – but it might have. It certainly cracks the cosy ‘Magic Circle’ assumptions. Back in the 1980’s there were the Big Eight accountancy firms. Now, thanks to mega mergers, there are half that number. So 2023 could be a landmark year – in more ways than one.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY

– BROWNE JACOBSON MORE EQUAL THAN THE REST

– FROM APPRENTICE TO PARTNER IN A CENTURY OF MOVES

– NFT TRACKS DOWN STOLEN GOODIES

– ISRAELI LAW FIRMS REACHING OUT

-AIMING TOO HIGH with AI?

+ CONTRIBUTED ARTICLE OF THE WEEK

THE INDEPENDENT INQUIRY INTO CHILD SEX ABUSE (IICSA): ONE YEAR ON, WHAT HAPPENS NEXT? asks Alan Collins  

+ LEGAL COMMENT OF THE WEEK

on Nokia job cuts, CMA Cloud investigation, UKCAT on Google, the Carillon case and Jusan Technologies

+ LEGAL APPOINTMENTS OF THE WEEK

at BURGES SALMON and MALTIN PR

THIS WEEK’S LEGAL DIARY

BROWNE JACOBSON MORE EQUAL THAN THE REST

Not all law firms are equal but this week Browne Jacobson proved that it is head and shoulders above other law firms when it comes to equality by becoming ‘National (British) Winners of the Equity Trailblazer’ award at the National British Chamber of Commerce (BCC) Business Awards.

The award recognises the achievements of those organisations which actively champion diversity and promote inclusion in their workforce and with their clients and customers. It also puts a spotlight on community outreach work and Brown Jacobson’s nomination came from Chambers Wales in recognition of the work of the firm’s Cardiff office, headed up by Tim Edds and Laura Hughes, the firm’s Executive Lead for Wales.

“This is a fantastic achievement for the Welsh team and for the firm, we are delighted to be recognised as a national champion for our continuous work in Equality, Diversity and Inclusion,”commented Browne Jacobson Managing Partner Richard Medd. “This is a central pillar in our firm strategy and values and has been a key driver over the last few years. We have seen first hand the transformative and positive effect it has had on our business, our clients, our people and the excellent talent we attract and nurture. The journey towards inclusivity and diversity is a collective endeavour embraced by all employees across the firm’s seven regional offices, and we are committed to and passionate about getting it right.”

In 2021, the firm launched FAIRE (Fairer Access into Real Experience) – a unique programme offering work experience opportunities to candidates specifically from lower socio-economic backgrounds. The firm has also been chosen to be one of only 13 UK businesses to form the Social Mobility Commission’s (SMC) new Employer Advisory Group.

FROM APPRENTICE TO PARTNER IN A CENTURY OF MOVES

The move to encourage more young people to enter apprenticeships in City law firms received a big boost this week with the announcement that City Century, a 50-strong City law firm collaboration network, is welcoming three new official partners – UCAS, Not Going to Uni (NGTU), and Young Professionals. The aim is to encourage many more talented young people to take advantage of the solicitor apprenticeship scheme by heightening awareness and widening access.

“From the moment I first heard about City Century, I knew we wanted to support it in promoting the opportunities to our audience in London and the surrounding areas,” said Conor Cotton, Managing Director at Not Going To Uni. “As an organisation, Not Going To Uni believes in giving young people every possible pathway available to them, and the work City Century is delivering aligns with our mission. With our vast network of other 65,000 users through our platform every month and on social media we will be driving awareness and applications for the 50+ law firms involved.”

City Century has cross-party political support and big ambitions. Led by the City of London Law Society, its 50+ firms represent a vast range of prospective employers and the aspiration is that by 2040 at least 100 new Partners will have been created by the solicitor apprentice route.

“This is historic. It will change not only the legal professions but the lives of many who would not have had these chances without City Century.” said Dan Miller, Founder and CEO of Young Professionals.“It is brilliant to see the legal sector widen access to the commercial legal profession and we at Young Professionals are extremely excited to connect our talented candidates at our online and in-person events.”

For a full list of member firms go to: https://citycentury.co.uk/member-firms

NFT TRACKS DOWN STOLEN GOODIES

Crypto seems to be the word on every investors lips at the moment – with the problems highlighted by the fall of crypto billionaire Sam Bankman-Fried personifying just how it can all go wrong.  Bankman-Fried will be facing the courts shortly with lots of questions still to be answered about just where the investors’ money has gone. Meanwhile, the glamour outfit Gemini Trust run by the Winkleross twins is also facing accusations of a $1bn. fraud.

On a more positive note, however, millions of dollars in crypto currency stolen following a major fraud have been tracked down thanks to the use of a new NFT (non-fungible token) developed by Mintable and commissioned by financial investigators Intelligent Sanctuary (iSanctuary) whose Advisory Board is chaired by Lord Hogan-Howe, the former Metropolitan Police Chief.

The Mintaaable NFT carries a Worldwide Freezing Order (WFO) whoch was granted by the Singapore High Court in what is regraded as a break-through for the city-state’s legal system.

“Innovation and ingenuity have long been dependable allies to forensic investigation and recovery, and this is an excellent and exciting example of that fact,” said Hogan Howe. “But as technology evolves, so too do criminal methods, and the pace of technological change is quicker than it ever has been before. It is paramount, therefore, that we have people and organisations willing to work together, to be one step ahead, and to ensure unlawful wrongdoing never pays off. Criminals need to get the message, loud and clear; no matter how sophisticated the crime, we have the tools and the determination to track you down.”

The intrinsically digital nature of the stolen assets, explained Mintable, required a petition to the Singapore court for permission to issue a WFO in the form of an NFT capable of publicly identifying the cryptocurrency if and when an attempt is made to spend, transfer or exchange the stolen cryptocurrencies.

“Helping to thwart crypto fraud is just one powerful example of the groundbreaking new uses for NFT technology being developed at Mintology.” explained Zach Burks, Founder and CEO of Mintable. “Our NFTs can offer a cutting edge to businesses and organisations in a wide array of applications, industries, and sectors, from education to gaming, and hospitality to legal services. “

You may not have thought that you wanted an NFT – but maybe things have changed!

Israeli Law Firms Reaching Out

In the aftermath of the terrorist atrocity on October 7 a group of leading Israeli law firms is now building up an international network of lawyers who may be called on for assistance with matters in their expertise or jurisdiction to assist the victims and hostages. 

“As representatives of Israel’s leading law firms and the Israel Bar Association, we feel it is our duty to help our country and those of our fellow citizens in need in any way we can,” says a circular co-ordinated by Goldfarb Gross Seligman. “Each of our firms has already been heavily involved in providing immediate assistance in multiple ways and while these efforts continue, we are now looking to the future to see what else we can do. One of the ways we believe that we, as law firms, can help is to make contact with those of our friends and colleagues outside of Israel who may be in a position to assist in the international arena.”

‘With prayers,” it adds, “for the safe return of all our hostages.’

Last week the International Bar Association commented “Israel has an inherent right to self-defence from these unlawful attacks. However, in doing so, it, too, must ensure that civilian populations are shielded from harm and that military actions are conducted with a clear commitment to the international legal principles of distinction and proportionality.”

The response address to the appeal is  https://lnkd.in/eUsjYhki

AIming Too High?

The AI phenomenon has hit us hard and fast and already doubts are growing about the implications. According to a recent survey commissioned by digital magazine and newspaper subscription app Readly concerns outweigh optimism when it comes to AI-enhanced technology amongst Brits, particularly in sectors such legal and judicial, journalism, banking and finance. Medicine and medical technology are the fields where it is most likely to have support – but even here only44 percent believe it is of use.

Unsurprisingly, maybe, older people are the most nervous but strikingly more men are inclined to trust AI with a quarter (25 percent) of men believing it is beneficial compared to just one in ten women (12 percent). So while many law firms are keen to be early adopters they may have a job on their hands to persuade their clients that it is a smart move.

CONTRIBUTED ARTICLE OF THE WEEK

THE INDEPENDENT INQUIRY INTO CHILD SEX ABUSE (IICSA): ONE YEAR ON, WHAT HAPPENS NEXT? asks Alan Collins  

Last year’s final report by IICSA concluded that urgent action is required to ensure children are better protected from sexual abuse. Yet we are no further from children being protected from sexual abuse within organisations, whether it be religious settings, social services, police, education – the list goes on. The report contains 20 recommendations to the government and other institutions as to how children can be better protected, but there is no reason to believe the Government will implement any of IICSA’s recommendations.

 Currently, the Government’s steps – or lack thereof – in addressing child sexual abuse, which is endemic in the UK, shows no signs of abating, which is tragic both in terms of damaged lives and the cost to the UK. Whether this will change under Labour, if they are elected next, is a question worth pondering.

 IICSA was set up by Theresa May as Home Secretary when child abuse scandals were a hot political potato – arguably a smart move to deflect the issue. If so, the inquiry was set up for the wrong reasons i.e. political ones. This is in contrast to Australia with the Royal Commission which was established with wide support, and has been properly supported with a consensual buy-in achieved.

 Was IICSA naïve in thinking that its many uncosted recommendations would simply be picked-up by government and implemented? That is not to say the recommendations – albeit fairly obvious – are not good ones. For example, it is inexcusable that the government has not introduced mandatory reporting of child abuse – especially so when the Home Secretary said that they would.

 But maybe IICSA should have been smarter, by thinking about the reality of how such recommendations would work in practice – in particular the cost. The gaping hole in much of IICSA’s report and recommendations is the failure to grasp the fact that the offenders should be paying for the harm they cause. Sending them to prison is one thing, but what about the damaged victims left in their wake?  IICSA seems to think that the taxpayer and insurance sector will pick up the tab. This is not likely to happen, which may go some way, possibly, in explaining why politicians are so uninterested. The odds are very much against anything that might cost money being implemented. This inaction however comes at a cost: more damaged lives.

 Inaction speaks volumes, with the repeated litany of “lessons have been learnt” being trotted out time and again by a Government that is not motivated to put an end to child abuse tragedies.

 When it comes to child safeguarding, the responsibility must lie with government and its institutions. It is very difficult for a survivor to achieve accountability when abuse occurs, and far too often when it results in a death. The resulting inquires invariably reveal a familiar pattern of failure: the lack of “professional curiosity”; the failure to check records; and the failure to act on information. What is glaring is the absence of accountability, and therefore the lack of consequences for those that failed these victims.

 The Government has a moral obligation, having set-up IICSA, to introduce mandatory reporting and the concept of accountability as a legal obligation so that those who fail are held to account. Only then do we stand a chance of seeing the cultural change that is so badly needed to ensure that our children and young people are better safeguarded.

Alan Collins is a partner in the sex abuse team at Hugh James, and represents victims of sexual abuse. He is a co-signatory of a Letter to The Times on this topic which was published this morning. 

LEGAL COMMENT OF THE WEEK

TOPIC: Announcement of job cuts by Nokia

COMMENT BY: Kate Palka, Employment Lawyer and Client Legal Director, The Legal Director

“Nokia have not yet announced whether jobs in the UK will be affected but if that’s the case, in order to ensure that the redundancies are legally “fair” they must both justify the rationale for making the redundancies and also carry out a prescribed process that involves the election of workplace representatives and carrying out a full consultation with those representatives and a fair selection process.

Failure to identify the rationale or to carry out the prescribed process will render the redundancy dismissals unfair. In reality, it’s likely that Nokia will be able to avoid that outcome. Their stated reason – the need to cut costs – is generally accepted as a compelling rationale for making redundancies and it would be surprising if they failed to follow the relatively straightforward process set down by UK law.

Alternatives to redundancies include redeployment,  restriction of overtime or reduction of hours, reducing external recruitment, retraining, early retirement or offering sabbaticals but in the context of the extensive plans to cut up to 14,000 jobs these measures are unlikely to achieve the savings Nokia says are necessary.”

TOPIC: The announcement by the CMA of its outline of scope on its market investigation into cloud services:

COMMENT BY:  Alex Haffner, specialist competition lawyer and partner, Fladgate

“The CMA’s Issues Statement gives more colour to the stated concerns which precipitated its market investigation into cloud services. As expected, much of the scrutiny will fall on the commercial terms being offered by the largest providers (Microsoft/Amazon) which are structured in a way which rewards loyalty and dis-incentivises switching to other providers and/or makes it uneconomic for new entrants to emerge. In so doing, the CMA has fired the starting gun on what is likely to be a lengthy process (up to 18 months) in which the incumbents will work hard to demonstrate that their practices are driven by efficiencies and economies of scale rather than any motives to foreclose competitors and competition.”

TOPIC: The approval for the first time by the UK Competition Appeal Tribunal (CAT) of the consolidation of two multi-billion pound opt-out collective claims against Google

COMMENT BY: Martyn Day, Co-President of the Collective Redress Lawyers Association (“CORLA”)

“The Tribunal’s granting of permission for these two collective claims to be amalgamated represents a milestone for the UK’s opt-out regime.

“It is good to see that the prospective representatives have come together for the benefit of the class members and we would anticipate that this is a model which, as the regime develops, might be adopted by further representatives in future.”

TOPIC: The halting of the trial of five non-executive directors of Carillion despite the Insolvency Service having spent large sums of taxpayers’ money pursuing to this point.(Carillion went bust in 2018 with liabilities of almost £7 billion, costing 3,000 jobs. 

COMMENT BY: Andy Pendergast, GMB National Secretary

“The Carillion affair was a stain on the reputation of British business and the decision not to proceed with this trial creates the impression that it is being brushed under the carpet. 

“Workers, suppliers and the tax payer lost hundreds of millions in the collapse and yet those responsible seem to have escaped with minor sanctions and fines. 

“Serious questions have to be asked as to why those who may have been responsible have been let off the hook at the eleventh hour.  

“The best that can be said is that it represents good money being thrown after bad, the worst frankly doesn’t bear thinking about.  

“Those who lost their livelihoods deserve answers.” 

TOPIC: Judgment in the Jusan Technologies’ (JTL) libel case against the Telegraph and OpenDemocracy and allegations that its claim is  a SLAPP.

COMMENT BY: A spokesperson at JTL

“JTL is delighted with today’s judgment in which the Court rejected the publishers’ claims that the articles made no allegations of impropriety against JTL and substantially accepted JTL’s arguments. In successfully clarifying the meaning of these false statements made by both the Telegraph and OpenDemocracy, JTL is one step closer to establishing that they are completely untrue and without foundation.

 Notably, none of the publishers also suggested to the Court that JTL’s claims are SLAPPs nor could they, given there is no evidence to support such allegations.

 JTL looks forward to vindicating its reputation in respect of these false and highly damaging allegations, which should never have been published. JTL pursues these claims out of necessity and does so reluctantly in order to put a stop to inaccurate and highly misleading reporting and to encourage accurate reporting going forward.”

APPOINTMENTS OF THE WEEK

BURGES SALMON

Alice Bretherton (above) is joining Burges Salmon as its new Chief People Officer (CPO). Formerly with EY where she was the Strategic Talent Director for the Tax and Law business in the UK and Ireland, Bretherton had entire responsibility for HR and talent activities. Prior to that she had been Global Head of Organisational Development at KPMG International and a client-facing consultant at the firm’s People and Change Advisory practice.

In her new role she will lead Burges Salmon’s People strategy for its workforce of 1,000+ people based across its offices in Bristol, Edinburgh and London with a particular focus on recruitment, development and retention. She will also be concerned with diversity and inclusion and social mobility priorities.

 “The first thing that really struck me about Burges Salmon was its authenticity in terms of its values and unique culture, which are both clearly at the core of the firm’s overarching vision and purpose,”said Bretherton. “This, along with the impressive efforts that Burges Salmon makes to build long-lasting relationships with its clients, its people and the organisations it works with as part of its responsible business agenda, represents genuine differentiation in the market.”

MALTIN PR

 Siân Harrison (above) is joining legal and litigation PR firm Maltin PR as a Partner.  Formerly the Law Editor at the Press Association, Harrison has twenty years’ experience as a newspaper and agency journalist and has extensive knowledge on complex cases and key points of media interest in litigation. She is a co-author of McNae’s Essential Law for Journalists and is a member of the National Council for the Training of Journalists media law exam board. She also sits on the HM Courts and Tribunal Service media working group.

“After 13 years covering the Law Courts, I have developed a rich understanding of the complexities of litigation and what makes a news story, plus an in-depth knowledge of the media landscape,” she comments, adding that she looks forward to putting her knowledge and skills to good use in her new capacity.

She joins Maltin PR following the recent recruitment of former BBC Legal Affairs Correspondent Clive Coleman and the opening of a US office in Washington DC.

E-VENTS

Non-State Actors in International Law 
(Annual BIICL/SLS Workshop 2023)

Online | 20 November 2023 | 12.00 – 17.15 (UK time) 
 

Whilst international law remains very much ‘State based’ in that its core subjects are States themselves, individuals, corporations and other non-State entities are playing an increasingly important role in the evolution of international law, its implementation and even its enforcement. Judicial and quasi-judicial bodies regularly receive communications and cases initiated by individuals; NGOs are bringing cases before domestic courts challenging instances of the non-application of international law; there is a growing body of work on regulating the human rights responsibilities of multinational corporations; non-State armed groups, including terrorist organisations, often exercise considerable public power, including in the context of war; and NGOs regularly implement development and humanitarian aid projects whilst also advocating for and contributing to the creation of new international standards, and subscribing themselves to international accountability frameworks.

This year’s BIICL/SLS Workshop will focus on these developments. Presentations selected through a call for papers will engage with innovative avenues of engagement by non-State actors with international law, and evolving practices to ensure compliance with international standards by non-State actors in both war and peacetime. Sessions will cover areas in which non-State actors are engaged and specific types of non-State actors.

This event is convened by Georgia Greville and Jean-Pierre Gauci in collaboration with the International Law Section of the Society of Legal Scholars.

We hope that you have found this edition of the Legal Diary useful – if so please pass on to colleagues.

Meanwhile please continue sending your legal diary stories, insights, comments and news of appointments to

fennell.edward@yahoo.com