Edward Fennell’s LEGAL DIARY

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

10 November 2023

By the time you read this it could well be Monday morning and the outcome of Saturday’s Palestine march will be known. Will the Met have made the right decision or was Suella Braverman’s gut instinct correct?

What is clear is that a lot has hung on Sir Mark Rowley’s personal assessment of whether the possibility of disorder had reached the point at which he could/should legally ban the march. Where does subjectivity meet objectivity in such a dilemma?

It is not too fatuous to suggest that in years to come AI could genuinely help us in these situations. Emotions are high, prejudices are rampant. A supermind is required to factor in all the possibilities. To take the heat off senior police officers, AID (‘artificial intelligence discernment’) should be made available.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– SHINING A LIGHT ON RESPONSIBLE BUSINESS

– JUST STOP BUILDING?

– DON’T STOP ME NOW

– OTHER PRO BONO HEROS at LGBTQ+ and Wig & Pen

CONTRIBUTED ARTICLES OF THE WEEK

The bigger picture on governance – going beyond compliance

by Zoe Bucknell

Why does the Lasting Power of Attorney (LPA) system need changing?

by Ann Stanyer

LEGAL COMMENT OF THE WEEK

on new AI cases, the Scherbakov case, gaps in the King’s Speech, Apple’s tax status in Ireland, the ‘Indi Gregory’ case, football governance, Ofcom and the Online Safety Act

APPOINTMENTS OF THE WEEK

at Sidley Austin LLP and Excello Law

The Lamp House Strategy ‘Responsible Business Annual Report’ on the performance of the world’s 125 leading law firms has just been published and the results are damning – whatever the rhetoric, collectively these law firms have failed.

The figures speak for themselves

  • Just 22% of law firms publish a holistic responsible business report.
  • 39% of firms do not show any effort towards supporting individuals with disabilities and/or neurodivergent people.
  • Just one in five firms have stated targets for increasing the percentage of women partners.
  • 96% of firms fail to demonstrate how they review clients and new instructions from their ESG perspective.
  • Only 32% of firms clearly apply ESG criteria to their supply chain.
  • 58% of firms globally are not transparent with their pro bono commitment, rising to 68% in the UK.
  • Only 26% of firms measure their Scope 1 and 2 emissions, with just 22% setting Net Zero targets. The only hint of comfort for firms on this side of the Pond is that by comparison with their US equivalents UK firms they are much more effective at communicating governance measures and what is described as their ‘commitment to the planet’ (had they been thinking of opening in Mars one wonders?). Canadian firms are on average the ‘least transparent’ (well that’s a surprise!).

“It is disappointing to see a general lack of transparency and commitment by way of measures, targets and reporting,” said Lisa Hart Shepherd, CEO of Lamp House Strategy, “Clients and talent want firms to step up in this area, and firms are simply not doing enough.”

 To its great credit our very own Burges Salmon took the overall global lead in the gradings, demonstrating ‘a sophisticated and transparent approach across all three streams of people, planet and governance’. Other firms in the top 5% included Addleshaw Goddard, Baker McKenzie, DWF, Freshfields, Linklaters and Slaughter & May.

A copy of the report is available by contacting Lamp House Strategy by emailing jo@lamphousestrategy.com

Do you ever go into a building? If so you should be ashamed of yourself!

Didn’t you know that buildings account for around 25 per cent of greenhouse gas emissions and the industry’s carbon footprint is second only to that of the transport sector! Maybe pace Suella Braverman you could consider living and working in a tent instead?

Only joking, of course, but research from the British Property Federation (BPF) has identified that ‘access to data’ and ‘insufficient data’ are key barriers to a net zero carbon property sector. In other words we need to know more about the pollution impact of buildings before effective measures can be introduced.

Step forward Farrer & Co which is supporting the BPF as it works with Get Living and Position Green to commission Savills, your favourite estate agent and surveyor, to undertake new research into the ‘net zero’ data challenges.

“Quality energy data is vital for the real estate sector to set and meet net zero goals,” said Mark Gauguier, Head of Commercial Real Estate at Farrer & Co. “Yet we know from previous research that one of the biggest challenges faced by the sector is insufficient data or the ability to access data – so we are really looking forward to sharing the insights that emerge from this research as to the impact of the data challenge on net zero plans and how it can be overcome.”

Rob Wall, Assistant Director at the BPF added, “This research will be key to helping us understand the challenges around data access and data sharing and to developing solutions.”

If we can measure it better then we can manage it better – that’s the theory. With the help of Farrer’s we might be able to begin building back better

The trauma of COVID is now being re-visited upon us every day through the official inquiry exposure of the immature malfunctioning of central Government. But that does not mean that there is nothing sensible to be learned from the experience of those awful two years. Moreover those lessons can be applied in other contexts as the National Pro Bono Centre is now demonstrating.

In what might have been mistakenly dismissed as a ‘Dad’s Army’ response, significant numbers of retired medical professionals were invited back by the NHS during COVID to provide additional support for public services. It worked wonderfully well. So the same principle is now being applied to the crisis in access to legal advice.

As part of Pro Bono Week 2023 the National Pro Bono Centre announced a new initiative to encourage and support lawyers to extend pro bono work when in retirement. The development has been launched as a combined effort by representatives from organisations including Advocate and LawWorks, led by Robert Bourns, a National Pro Bono Centre (NPBC) Trustee and Board Chair of the Law Society of England and Wales.

A number of case studies have already demonstrated that lawyers. acting pro bono in their retirement, can make a difference to individuals and groups. I studied for all those years to be a lawyer, and then felt like I didn’t want to stop being a lawyer – I wanted to use my legal skills in some way,” commented retired solicitor, Kate Buchanan. “You feel like you’re doing something incredibly useful with your skills and really helping people, in some cases in life-changing ways. I think that my daughters are proud of what I do. It’s enormously satisfying.

NOTE: Pro bono opportunities available to retired legal professionals are currently listed on the following sites:

  1. LawWorks
  2. Pro Bono Connect
  3. Free Legal Answers
  4. Law Centres Network
  5. Free Representation Unit
  6. The National Pro Bono Centre Or via a local advice centre

The ‘Outstanding LGBTQ+ Executives Role Model List 2023’ is now out and featuring prominently on it is Nathan Eastwood (left) , a partner in the Sydney office of Watson Farley & Williams (“WFW”).

The list is compiled by INvolve, the diversity, equity and inclusion consultancy and global network, and boasts an impressive list of business leaders and allies who are ‘breaking down barriers and creating more inclusive workplaces across the world’.

Nathan Eastwood specialises in cross border disputes and international arbitration, particularly claims involving foreign governments under investment treaties and free trade agreements (so he is probably pretty busy right now).

Nonetheless he has also devoted time to setting up a dedicated LGBTQ+ pro bono practice and has led several high-profile initiatives, through which he provides legal advice to Australian LGBTQ+ charities to improve the lives of LGBTQ+ youth and Australian first nations people (whose rights have been very much in the spotlight recently).

Meanwhile the winner of this year’s Wig & Pen Prize – awarded jointly by the City of London Law Society and the City of London Solicitors’ Company – is Rob Colvin (left), Senior Associate at Freshfields Bruckhaus Deringer.

The award is a reflection of Colvin’scommitment to pro bono legal work over the last decade.This was summed up as being “ A general commitment to pro bono work – not just hours spent, but time taken to talk to and inspire other lawyers to get involved and to promote the rule of law”.

 For example, Colvin recently led a team representing Every Child Protected Against Trafficking (ECPAT UK) in a successful judicial review of the housing of lone asylum-seeking children in hotels. Secured by the Freshfields team in 2023 it confirmed the primacy of the Children Act 1989 in determining the rights of all children in need to support from local authorities without discrimination.“Rob’s dedication to the matter was outstanding; he spent over 650 pro bono hours in a nine month period to help to deliver the result”, said the judging panel.

The bigger picture on governance – going beyond compliance

by Zoe Bucknell

The importance of ESG has never been more obvious (or discussed). However, having attended the recent Association of Corporate Counsels’ annual meeting in October, I was struck by some of the misconceptions or omissions that prevailed throughout the sessions I attended on ESG. Clearly, there remains a problematic misunderstanding over the role of governance which, if not addressed, could risk creating foundational weaknesses in the ESG frameworks of large companies.

A key misconception is that, within the context of ESG, “governance” merely supports and enables the compliance of a business’s environmental and social targets. Whilst a valuable responsibility, this misses a massive part of the governance picture – the direction in which an organisation is steered is directly linked to the governance framework a business implements, making it much broader in scope than pure compliance adherence.

This perception could stem from the fact that those entering the field of governance from a different area may have their own sector expertise, but governance is a specialism of its own. Without training, these people are forced to rely on their prior experience, which can lead to a narrow interpretation of governance.

Governance is arguably the most challenging aspect of ESG to understand and to measure, but it is the most critical aspect of any business. Governance isn’t a bolt-on to other aims, but the very foundation of a positive corporate culture. Culture and governance are symbiotic and underpin the impact a business will make when implementing its environmental and social aims.

While measuring the effectiveness of governance can be harder than environmental and social impacts, looking at how decisions are made and implemented can be a good start. How many levels of decision makers are involved before action is taken? Are there multiple, conflicting committees, sub-committees, steering groups and other “governance bodies”? Is accountability and responsibility clearly allocated and communicated? And are the people best placed to take decisions and actions actually those with the accountability to do so?

Ultimately, improving corporate governance boils down to having the right people making decisions, with the right information, available at the right time, operating within the right culture in order to be able to effectively steer an organisation. Without effective decision making, and implementation of those decisions, it will be impossible for an organisation to deliver on its business objectives, including its environmental and social impact aims.

Zoe Bucknell is the CEO and Co-founder of Kuberno, a Nasdaq-backed tech start-up focused on governance and related issues

Why does the Lasting Power of Attorney (LPA) system need changing?

by Ann Stanyer

Firstly, to alleviate problems in both producing LPAs and in the registration process. LPAs involve completing forms that include the registration application and run to 24 pages. Most clients now complete both types – health and welfare.

As is often the case you will have 4 versions of these to complete running to nearly 100 pages. The Office of the Public Guardian (OPG) received in the last year over a million LPAs to register. It is not difficult to see that this is creating a paper mountain at the OPG. Not only that but each document is then scanned before the registration process begins.

Secondly, this paper mountain has created significant registration backlogs. The OPG’s target for processing the registration of an LPA is stated in their most recent annual report (2022/23) is 40 days but the average time now taken is 91 days. This is because after being scanned each document then undergoes a manual check to ensure it has been executed correctly.

How does the new Act seek to address this? It enables regulations to be brought in to introduce what is described as a digital channel alongside an enhanced paper channel. It is unclear how that digital channel will work. We imagine that the OPG is using the online probate application system as a template. This would not be good news. That system has been found wanting and can only be described as a third rate probate system at best. There has also been discussion about whether solicitors will be required to apply through an LPA portal and registration will be activated immediately rather than at the end of that procedure.

What we do not know is how whether there will be any kind of digital execution of the LPA rather than just a digital registration process. Certainly it would make sense to allow attorneys to apply their signatures digitally. However, as most LPAs are signed by those of advanced years and often at a time when donors are entering into a twilight zone of reduced cognitive powers, it would be a step backwards to require such donors to sign by digital means. Other changes to identity verification and notification are welcome changes but will not make a significant difference to the overall management of the LPA process.

Ann Stanyer is a Partner at Wedlake Bell LLP

TOPIC: The surge in new AI cases to decide if infringements arise when copyrighted data is used to train AI systems

COMMENT BY: Andrew White, Partner, Mathys & Squire

“AI is creating a multitude of new challenges and questions in relation to intellectual property. Many legal cases are ongoing as individuals seek clarification on what their rights and responsibilities are. Companies with copyrighted material and AI companies themselves are in urgent need of clarification.”

TOPIC: The Vladimir Scherbakov case over an oligarch’s disputed will

COMMENT BY: Mark Keeley, partner and contentious trust and probate expert, Freeths.

“Cases where wills are forged or go missing crop up all the time, however it is highly unusual for a case to go to trial where the main claim is an allegation that a will has been deliberately concealed.”

“That is for the simple reason that it’s easy to say a missing will must have been destroyed by the deceased, given that there is a presumption of revocation if the original can’t be found, and that it is difficult to prove that someone deliberately concealed a will.”

“The problem could, of course, have been avoided in the first place if the original will had been stored with a solicitor.”

TOPIC: The state of the criminal justice system and critical gaps in the King’s Speech

COMMENT BY: Julian Hayes, Berris Law

Yet again the Government have failed to address and remedy the deteriorating condition of the criminal justice system, instead focussing on populist headlines involving sentencing in what can only be seen as a rather cynical attempt to garner support from the electorate for the general election to come.

The criminal justice system remains in a parlous state a more mature and holistic approach should have been adopted by this government to ensure that it was properly funded and managed. Instead the decline will continue, victims, lawyers and other court users have been sold short and this will remain the case until there is adequate funding put in place to ensure legal aid and access to justice for all is truly available ensuring that lawyers remain within the system to provide representation for both defence and prosecution so that delay and poor representation is prevented; to halt the deterioration of a crumbling infrastructure (courts, police stations, prisons etc).”

TOPIC: The advice by the Advocate General of the European Court of Justice that the decision quashing the EU’s order for Apple to pay €14.3bn in back taxes to Ireland “should be set aside”

COMMENT BY: Alex Haffner, competition partner, Fladgate

The opinion issued today by the Advocate General (AG) is not binding on the European Court – in statistical terms around two out of three such opinions tend to be followed by the court. Nonetheless, it is the latest twist in a decade long saga which the Irish government and Apple must have believed had turned in their favour following the ruling three years ago when the General European Court quashed the EU Commission’s decision that Ireland had granted an unfair tax advantage to Apple. Of specific interest in the AG’s opinion is the fact that he states the lower court made a number of legal errors in its assessment of Apple’s corporate structure. In particular, that valuable IP behind Apple products fell completely outside, rather than inside, its Irish structure and so didn’t attract any tax.”



TOPIC: The Indi Gregory ruling
COMMENT BY: Iain Brassington, Lecturer in Bioethics, The University of Manchester’s School of Law.

“Yesterday at the High Court, Mr Justice Peel handed down a judgment confirming that life-sustaining treatment should be withdrawn from the seriously ill baby Indi Gregory, and that she should spend the rest of her life in hospital or in a hospice rather than being taken home.

“The law requires that medical decisions taken on behalf of infants should be in their best interests. Disputes arise when it comes to deciding what those best interests are – they may not be limited to the bare medical facts. However, if continued treatment is deemed to be burdensome or even simply futile by the medical team carrying out treatment, there would be a powerful reason to discontinue it, even if that led to death.

“The ethical rationale for this law is that medical staff must not be compelled to act in a way that they honestly believe would make their patient’s life worse, but this has to be seen in light of another ethical consideration – that parents not give up on the lives of their children. Cases like this are difficult just because we are caught between competing moral imperatives.

“Nobody wants Indi to die, but the medical opinion is that she cannot live. The only question to be faced given that is how her death should be managed – it is this upon which Mr Justice Peel ruled yesterday, and there is no obvious flaw in his reasoning.”

TOPIC:  The Football Governance Bill

COMMENT BY: The Chartered Governance Institute UK & Ireland

“A new regulatory regime could provoke capital flight and force some clubs to close”.

“Football governance could take a decade to get right.”

No new regulatory regime ever gets it right from the start. We need to be ready for a lengthy period of adjustment.”

The industry will not transition to good governance in a single step”

The Football Governance Bill is promising more than it can possibly deliver”


TOPIC: Ofcom’s first code of conduct under the newly passed Online Safety Act for social media companies

COMMENT BY: Julian Hayes, Partner, BCL Solicitors

“It’s over 4 years since Theresa May’s Government ignited the online safety debate by publishing proposals to rein in what they saw as a digital ‘Wild West’.

“Since then earnest and often heated arguments have raged over the implications of interfering in the online sphere, with politicians and campaign groups fiercely promoting their standpoints.

“With the Act being signed into law last month, those keeping only half an eye on the debate may have thought ’mission accomplished’. As today’s Ofcom announcement makes clear, though, only the high-level outline of the new regime is in place; now its minutiae will begin to emerge, with the prospect of further disputes ahead.

“Tech firms and other in scope entities will pay close attention to the detail of the first draft codes, tackling some of the most egregious online material, for indications of the regulator’s future approach. Those hoping for quick solutions will be disappointed – the final codes will not be approved for at least another 12 months.

“The contentiousness of the area means every hour of the intervening period will be needed to ensure the UK’s online safety regime achieves its laudable intentions without also exposing the potential pitfalls of which many opponents warned.”

TOPIC: The King’s Speech announcement rein connection with the Media Bill (especially regarding legal costs in defamation and privacy cases)

COMMENT BY: Hanna Basha, Partner at London law firm, Payne Hicks Beach

“In 2011 the Conservative government mandated Lord Justice Leveson to propose recommendations and legislation for press reform following the wrongdoing exposed at that time. Their successors have slowly shelved each meaningful reform.  

“This particular legislation would have provided a mechanism whereby media groups, who had not signed-up to independent regulation, would pay their opponent’s costs when they were sued, even if they won.

“Effectively this legislation was designed to encourage disputes away from the Courts and into the hands of regulators, making the press more accountable and disputes easier and cheaper to resolve. “The shelving of these reforms is disappointing but given the continuing influence of the press on this government, hardly surprising. If current polls are correct it will soon fall on a Labour government to grasp the nettle.” 
 

SIDLEY AUSTIN

Greg Lavigne (left) has joined Sidley Austin LLP as a partner in the firm’s Energy, Transportation, and Infrastructure group. In what might be seen as a response to recent developments at the firm he arrives from Allen & Overy where he advised private capital providers and major sponsors in the full spectrum of transactions, including tax equity, private equity, joint ventures, mergers and acquisitions, project finance, and structured finance transactions. The move also follows the arrival at the Energy, Transportation, and Infrastructure practice at Sidleys in London of James MacArthur and Ed Freeman joining as part of a five-lawyer team from Weil, Gotshal & Manges LLP.

Cliff Vrielink, global leader of Sidley’s Energy, Transportation, and Infrastructure practice commented, “Greg is a great addition to our team. His in-depth understanding of the energy transition and renewable energy market will further enhance our top-ranked energy practice.”

“We are excited to expand our energy practice,” said Nancy Chung, managing partner of Sidley’s New York office. “Greg’s vast experience in structuring and negotiating project finance and tax equity investments is in high demand from leading strategic and financial investors in energy, and his addition will help us expand our footprint in this area even further.”


EXCELLO LAW

Martin Ridings has joined Excello Law in its family practice based at the firm’s Stoke-on-Trent office. With over two decades of experience in family law, and a passion for resolving legal matters related to marriage, divorce, and child arrangements he is recognised for his commitment to providing sound advice and support to individuals navigating the complexities of family law.

“We are delighted to welcome Martin Ridings to Excello Law,” commented Jo Losty, the Excello Law CO. “Excello Law provides entrepreneurial senior lawyers like Martin the opportunity to grow their practice without the confines of the traditional legal model. We are pleased to strengthen our presence in the Midlands and welcome Martin to our friendly and expanding Stoke-on-Trent office.”

Meanwhile Ridings commented, “I was particularly attracted by the flexibility which Excello offers and the opportunity to take control of my own working life whilst still having the benefit of a network of experienced colleagues. Combined with the compliance and finance support which Excello provides it is an unbeatable combination.”