Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
3 November 2023
SHORT THOUGHT FOR THE WEEK: PRO BONO?
Next week is a celebration of the pro bono activities by lawyers. Encouragingly, the Bar Council has just released data from its Barristers’ Working Lives 2023 survey indicating that 49% of barristers had provided pro bono help in the previous 12 months (up from 43% in the 2021 survey).“With many families continuing to struggle in the face of inflation and a squeeze on the cost-of-living, few private individuals can afford legal advice and representation, and the pro bono work undertaken by barristers is of immense value,” said Nick Vineall KC, Chair of the Bar Council.
Earlier this week the LegalDiarist was speaking with a barrister friend still working late in her career in the criminal field and was reminded that, despite recent improvements, large numbers of criminal barristers are effectively working pro bono – even if they are being paid.
The LegalDiarist
In This Week’s Edition
+ LEGAL DIARY OF THE WEEK
– HOLDING THE JUDICIARY TO ACCOUNT
– PRO BONO IN FOCUS ONCE MORE
– THOMSON REUTERS LAYS IT OUT FOR AI
– ‘WE’VE GOT YOUR BACK ON AI’ DECLARES CLLS
– ALARM AT PROSPECT OF ELECTION
+ LEGAL COMMENT OF THE WEEK
on leasehold reform, disparity of earnings at the Bar, latest insolvency figures, Sunak’s AI summit, Economic Crime and Corporate Transparency Act
+ LEGAL APPOINTMENTS OF THE WEEK
at A&O and Fladgate
+ LEGAL DIARY OF THE WEEK
HOLDING THE JUDICIARY TO ACCOUNT
Is there racial bias in our legal system? If so, how much? Why and what can be done about it?
These are some of the questions to be addressed next Tuesday at a panel discussion session chaired by Professor Gary Younge of the University of Manchester’s with guests including Abimbola Johnson from Doughty Street Chambers, Graham Ritchie from the Crown Prosecution Service; Katrina Ffrench from UNJUS and Haroon Siddique from the Guardian. And what they will be getting their teeth into is an update on progress, one year on since the publication of the report Racial Bias and the Bench by Professor Eithne Quinn from The University of Manchester and Garden Court Chambers’ Keir Monteith KC.
“Having met with academics and co-authors from The University of Manchester, I welcome their latest report which adds further evidence and provides feedback directly from members of the legal profession and judiciary,” said Shadow Foreign Secretary David Lammy MP at the time of the report’s publication last year. “Action to embed compulsory antiracist and racial bias training for all judicial office holders, which is a key recommendation of the report, would encourage a culture shift towards antiracist practice.”
Reflecting on the original report Professor Eithne Quinn commented, “The challenge now is for sector leaders and policymakers to recognise and confront this racism. Our report, along with the work of many others, has had traction; but there is much more to do. This open event presents an important moment to review, learn and actuate change.”
The event, organised by The University of Manchester in partnership with Garden Court Chambers and the Centre on the Dynamics of Ethnicity, will take place from 6-8pm on Tuesday 7 November at {10 – 11} Carlton House Terrace. It is free to attend or to watch online, but attendees must register beforehand at https://www.eventbrite.com/e/racial-bias-and-the-bench-one-year-on-tickets-732315875497.
PRO BONO? GIVE IT A GO!
It’s that time of the year again. Yes, from next Monday there will be a series of events marking this year’s ‘Pro Bono Week 2023 – Free legal assistance from UK lawyers is changing lives’.
Right across the UK – including London, Birmingham, Edinburgh, Manchester and elsewhere – there will be activities to showcase how the legal profession is ‘doing its bit’ to remedy the woefully inadequate legal advice services available to ordinary people.
The launch event for Pro Bono Week 2023 will be on this coming Monday and will feature speakers including Attorney General The Rt Hon Victoria Prentis KC MP and Lord Briggs. The full calendar can be found here.
Highlighting the significant achievements of lawyers acting pro bono the organisers of the Week report on four key, characterisitic and symbolic, cases:
- In June, the High Court awarded £800,000 in damages to four victims of the 2020 Beirut port explosion payable by the UK-owned company responsible for the chemicals that caused the blast, thanks to pro bono representation from a law firm and several barristers.
- In June, a leading global law firm announced it was providing pro bono legal advice to Ukraine’s Ministry of Economy to establish a development fund for the country’s future reconstruction and economy recovery.
- Also in June, a collaboration was formed between a legal and pharmaceutical firm on funding for specialized services to support survivors of child sexual abuse.
- In July, Andrew Malkinson’s conviction for which he spent 17 years in prison was overturned by the Court of Appeal following pro bono help provided by a number of law firms assisting APPEAL, with barristers initially acting pro bono before legal aid was granted.
Meanwhile UK Collaborative Plan for Pro Bono, a group of law firms who aspire to 25 hours of pro bono per lawyer each year, released their figures showing that 74 member firms collectively provided over 576,000 hours of pro bono during the year 2022/2023. Just tot up the value of that!
THOMSON REUTERS LAYS IT OUT FOR AI
A generative AI strategy designed to transform the future of lawyers and other professionals has been launched by Thomson Reuters backed by an investment of more than $100 million per year. It has already made an $650 million acquisition of Casetext and it has imminent plans to roll out its flagship generative AI skills product, Westlaw Precision.
“AI will revolutionize and transform the future of work for professionals across the globe. Thomson Reuters is at the forefront of the AI movement, and we have demonstrated our commitment through the annual investment of more than $100 million in AI,” said Steve Hasker, president and CEO, Thomson Reuters. “Professionals have our unwavering commitment and support as they safely navigate the opportunities and challenges provided by the evolving AI landscape. This is an exciting time as the Thomson Reuters team plans to expand, scale, and upskill at pace.”
By using Westlaw Precision AI-Assisted Research, customers will be able to ask complex questions in conversational language and quickly receive synthesized answers, explains Thomson Reuters. “Leveraging innovation from CoCounsel, the new skill will draw from Thomson Reuters industry-leading, trusted content from across statutes, cases, and regulations to quickly resolve queries that used to take hours.”
Generative AI skills in Westlaw Precision will be available to customers in the United States on November 15. Find more information here. Users in this country will just have to be patient.
‘WE’VE GOT YOUR BACK ON AI’ DECLARES CLLS
As the Thomson Reuters story (above) illustrates, AI will soon be sweeping – like Storm Ciaron – across unprotected jurisdictions and professional bodies. Is it already too late to put up the sea defences? Well, at least the City of London Law Society (CLLS) is starting to make its contribution to the filling of sandbags by unveiling its new specialist Committee on Artificial Intelligence (AI).
The committee will be chaired by Simmons & Simmons’ Global AI Lead Minesh Tanna, who already has a strong track record for an advising clients such as global technology companies and financial institutions on legal, regulatory and ethical issues relating to AI.
“Adding to our 20 existing specialist Committees, this new body will immediately join and contribute to policy discussions around the regulation of AI and other legal issues relating to AI technologies, said CLLS Chair Colin Passmores. “There are going to be some immense challenges arising out of AI, as well as opportunities. I am very pleased that Minesh, one of our industry’s recognised leaders in this field, will coordinate the response to AI of London’s leading firms and lawyers through this new CLLS Committee.”
So with AI advancing, what are the key issues?
The reliability and accuracy of AI, job displacement concerns, and meeting ethical standards and regulatory requirements in the legal industry, points out the CLLS.
“The CLLS AI Committee will confront these opportunities and challenges head-on in order to provide guidance to our City members on what matters with this fast-moving and challenging technology,” it says
ALARM AT PROSPECT OF ELECTION?
It’s a well established tradition nowadays that once top politicians have left office they can put aside their well-honed professional antagonisms against traditional enemies and cosy up to reminisce about the good old days. So it is with Payne Hicks Beach’s ‘In Conversation’ series which recently brought together in the Great Hall at Lincoln’s Inn the former Labour Shadow Chancellor Ed Balls and former Tory Lord Chancellor Sir Robert Buckland KC MP.
Appropriately enough it was the lawyer, Buckland, who was asking the questions. And he produced some notably alarming responses – quite literally when he asked the incendiary question of Balls ‘What’s your prediction for the next election’.
Bang on cue the fire alarm exploded. Given the double-bind that Keir Starmer has got himself into over the past fortnight with some of his so-called supporters maybe Labour should take these auguries seriously.
Still time (just) to elect a new leader?
LEGAL COMMENT OF THE WEEK
TOPIC: Proposed changes to the system of Leasehold
COMMENT BY: Andrew Bruce, barrister at Serle Court
“No one who practices in the County Court would disagree that the court system is underfunded and overworked. Therefore, increased funding (however it is dressed up) is to be welcomed. This, though, does not address the issue of security of tenure for assured shorthold tenants. Making the County Court more efficient in processing possession claims will not ensure blameless tenants are not evicted.”
TOPIC: New data analysis from the Bar Council suggesting persistence of disparities in earnings based on gender and ethnicity.
COMMENT BY: Nick Vineall KC, Chair of the Bar Council
“Everyone at the Bar should be concerned that the disparities between men’s and women’s earnings at the self-employed Bar are so great.
“We also know from our Race at the Bar report that the average Black barrister earns markedly less than the average White barrister and the average Black woman earns less than the average Black man.
“We need to do more work to understand the cause or causes of these striking differences. Some may be accounted for by differences in the number of hours worked per week, but it is a particular concern that these differences seem to emerge at such an early stage in practice. The danger is that the patterns set in the early years of practice become self-perpetuating. Without intervention that trend is likely to continue.
“I encourage chambers to use the new data and toolkit to start collecting, analysing and understanding their own data. Good sets are already doing this, learning about who is thriving and who needs support, to make sure everyone has the same opportunities to advance their career.”
TOPIC: The latest insolvency figures
COMMENT BY: Jeremy Whiteson, Restructuring and Insolvency Partner, Fladgate
“The corporate insolvency statistics for the quarter to 30 September 2023 (published on 31 October 2023) show significant grounds for concern.
The number of administrations were up 11% on the preceding quarter and 58% on the same quarter in the previous year. That is important as administration is the main procedure for rescuing trading businesses. The number of company voluntary arrangements- another procedure used for rescue of operational businesses, was also up 41% on the same quarter in 2022.
This is, unfortunately, unsurprising. Business owners have faced a series of challenges. After the difficulties of the pandemic lock downs, there have been shortages of labour; increased costs for food and many components; rising fuel costs which are again be-set with uncertainty in view of the middle east crisis; increased and uncertain regulations for import and export to Europe; and high interest rates, which show no signs of easing in the short term.
This range of difficulties means that a wide range of businesses are being squeezed. Clearly those with substantial borrowings may be facing increased debt costs. However, any business with a substantial labour force, increasing costs for food, fuel or components, or which are dependant on vulnerable foreign markets will be worried. Consumer orientated businesses will also be hit by the impact of these developments on customer sentiment.
The proportion of active companies subject to liquidation – a procedure often used for closing companies with no ongoing business- was also up 5.5% on the same quarter in 2022 and showed a slight increase over Q2 2023.”
The figures showed an increase in the use of the moratorium and restructuring plan procedures. These are procedures introduced by legislation in 2020 and were designed to help rescue businesses showing early signs of distress. However, the use of these procedures is still low (46 moratoriums and 22 restructuring plans in the quarter) and so will make little impact on the wider business community. However, if ways can be found to spread the use of these procedures they may offer a route to saving more viable but troubled businesses.”
COMMENT BY: Richard Curtin, Insolvency Partner, Spector Constant & Williams
“The statistics released today by The Insolvency Service are the worst since 2009.
“Businesses have been suffering pain for some time. The Government’s support measures introduced during Covid have ended and are most unlikely to be reintroduced. HMRC is being far more aggressive in pursuing its debts through winding up petitions and consumer confidence and spending are low.
“The current level of interest rates is not temporary and they will be a final nail in the coffin of many businesses. Liquidity is key and a challenge for many.Any director knows when their business is in a difficult position, so to plead ignorance and do nothing about it is untenable.”
TOPIC: This week’s UK summit at Bletchley Park designed to regulate AI
COMMENT BY: Tim Wright, AI expert and technology partner, Fladgate
“The UK AI summit is a great opportunity to strengthen coordination between government, academia and the private sector on AI safety. If done well, it can provide a platform to hash out important issues at the intersection of technology and society, and encourage more funding in the space.
“Prime Minister Rishi Sunak’s speech last week (26 October) made it clear that the UK government is not proposing to change course and rush in AI technology regulation. Whilst some technologists also warn against premature or excessive regulation stifling innovation, and the summit’s multistakeholder format is useful, targeted regulatory proposals will still be needed. The UK has held back from specific, targeted regulation, pushing a business-friendly approach. In contrast, the EU will soon bring its AI Act into force.
“The UK is the EU’s third biggest trading partner and companies which want access to its markets have to abide by its rules. So, regardless of the UK’s “non-rush approach”, developers and users of AI systems, especially those considered to be high-risk under the EU AI Act’s system risk taxonomy, will have to sit up and pay attention to the new rules. Failing to do so carries a risk of very large GDPR-like fines. However, there is less of a pull factor for third (non-EU) countries with the AI Act, so countries like the UK can take a markedly different approach if they want.
“Liz Truss’s self-promotional, attention-grabbing comments around excluding Chinese delegates from the summit are merely designed to place pressure on Downing Street. China’s exclusion would only reduce the summit’s completeness and credibility, while hampering global coordination and standard-setting on AI issues which require broad international alignment to be effective.
“The summit can be seen as a success for the UK if it results in new partnerships, global alignment, or we see joint initiatives emerging, which could back up some of the rhetoric of the UK leading international coordination on AI regulatory frameworks. Attendance by the likes of French president Emmanuel Macron, the Canadian prime minister, Justin Trudeau, Ursula von der Leyen, the president of the European Commission, and US VP Kamala Harris, will also help amplify its reach and boost the government’s claim to be setting the AI safety agenda for years to come.”
TOPIC: The Economic Crime and Corporate Transparency Act now becoming law.
COMMENT BY: Johanna Walsh, Partner and head of Mishcon de Reya’s White-Collar Crime and Investigations Group
“The reforms in this Act have been so long coming that it is easy to lose sight of the impact they are going to have on corporate criminal liability in the UK in the coming months and years. A lot of the focus has been on the expansion of a failure to prevent model of liability to fraud offences for larger companies and that expansion is an important measure that will bring new enforcement risk for corporates and exact further demands on compliance teams already stretched with money laundering, sanctions and bribery risks.
“But the really big difference this Act will make is the reform of the identification principle – that principle was devised over fifty years ago and is now accepted by almost everyone in this area of practice as the single biggest obstacle to the prosecution of companies in the UK, so the impact of this reform, which will allow enforcement bodies to hold companies liable for the actions of their senior managers, cannot be overstated.”
APPOINTMENTS OF THE WEEK
FLADGATE
Georgia Quenby (left) is joining Fladgate as a Partner in its Funds, Finance & Regulatory (FFR) practice. Formerly the co-leader of a Morgan Lewis’ Banking Industry Team and co-leader of its sanctions task forces, Quenby has over fifteen years’ experience as a partner advising clients on strategic and complex matters in finance, asset-based lending, acquisition finance, project finance, special situations and restructuring. She has expertise in both English law and New York law and has been ranked as a Leading Individual, Finance: Asset Based Lending in The Legal 500 UK since 2019. She has been a licensed insolvency practitioner since 2010.
“As a firm with a strong reputation with working for market leaders and ‘game changers’, Georgia’s appointment will add fundamental value and breadth to our fast-growing FFR practice and the firm’s clients,” said Grant Gordon, Managing Partner at Fladgate. “Her depth of cross-sector experience will only deepen our ability to attract complex finance and restructuring mandates from the crucial mid-market space that we serve.”
Fladgate’s FFR practice has grown by 75% in revenue terms in the past three years including 30% growth year-on-year in 2022.
A&O
Pien Kerckhaert has been appointed as a financial regulatory partner in A&O’S ICM practice group. She joins from Dentons, where she was a financial regulatory partner in the Banking & Finance practice group.
Previously she was at law firms NautaDutilh and Finnius, and insurer NN Group. She is regarded as an all-round specialist in the financial regulatory field notably in the in the Dutch financial institutions (FI) sector. She has expertise across Dutch and European regulatory law and has represented banks, insurers and private capital investors.
“Pien Kerckhaert enhances our Netherlands’ and EU offering for the financial services sector as clients face ever-increasing regulatory challenges,” said Brechje van der Velden, senior partner at Allen & Overy Netherlands. “Her extensive expertise complements our global ambition to advise on issues of strategic priority to our clients. She will play a leading role in the further development of our financial regulatory offering, especially in the Netherlands and EU.”
Kerckhaert commented, “A&O’s collaborative spirit is well-known and I very much look forward to joining the team and working with colleagues across the wider firm.”
If possible, enjoy your weekend – and please continue sending your legal diary stories, insights, news and comments plus appointments to
fennell.edward@yahoo.com