Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
17 November 2023
SHORT THOUGHT FOR THE WEEK: Last Post for Post Office Lawyers?
This lunchtime, shortly after this Legal Diary is published, BBC Radio 4 will be running Episode 17 of its series ‘The Great Post Office Trial’. It focuses on the notorious prosecution of hundreds of Sub-Post Office managers for crimes they had not committed and today’s episode examines ‘How the Post Office lawyers reacted in 2013 to the biggest challenge in the Horizon scandal yet’.
Neither the Post Office lawyers nor their external advisers have come out of the story particularly well so far. Nick Gould, an Aria Grace lawyer, commented in his submission to the Post Office Enquiry that, as the solicitor to three of the accused sub-Post Masters, “I have seen the damage done to so many of those who were ruined by Post Office directors and senior management aided and abetted by others including certain members of the legal profession over twenty years”. Gould ‘names names’. But will justice see lawyers held to account?
The LegalDiarist
In this week’s edition
+LEGAL DIARY OF THE WEEK
– Sustainability good for business, says Simmons & Simmons Report
– Gareth Peirce Gets Her Justice Rewards
– Sixth Formers Targeted by Baker McKenzie to Make A Good Beginning
– The Law’s Four Pillars of Wisdom according to Obelisk
+ CONTRIBUTED ARTICLE OF THE WEEK
New Pro Bono Connections by Jamie Goldsmith KC
+ LEGAL COMMENT OF THE WEEK
on the Rwanda Scheme, Insolvency and the National Security and Investment Act 202
+ LEGAL APPOINTMENTS OF THE WEEK
at Fladgate and OPUS 2
LEGAL DIARY OF THE WEEK
Sustainability good for business, says Simmons & Simmons Report
Just published this week by Simmons & Simmons the report “A sustainability state of mind: unlocking growth and profit” reveals how much the business world’s fears and priorities have changed in the past five years.
“We are seeing the start of a global economic transformation,” comments Julian Taylor, Senior Partner. “Even though this evolution has been decades in the making, it is now gathering momentum. After years of debate and activism, the policy and financial environment needed to support bold investment in sustainability is finally falling into place.”
According to the survey of 700 global senior executives and major investors it is now the possibility of legal action for failing to comply with sustainability regulations which is the risk they are most concerned about. Indeed, more than half put it top of their anxiety list. Just as worrying, however is the ever-looming possibility of reputational damage from legal action. It is what people think about companies rather than actually facing legal penalties which gives them most sleepless nights (maybe because penalties rarely match the crime, the cynnics might suggest?).
And yet, there is a caveat in all this. The majority of businessess consider that regulatory ‘overreach’ could harm efforts to improve sustainability. (think about the row over ULEZ). At the same time some businesses think there are gains to be made from going beyond simply reporting requirements for sustainability.
So, by and large, sustainability is now well-established on the business agenda with 84% of executives and investors believing that it is the businesses who investing most effectively in sustainability who will perform best over the decade ahead. Alongside that a majority of respondents thought that those businesses who played more of an active role in creating a sustainable economy would outperform those who are merely ‘minimising their impact’.
“This research shows that the majority of businesses see sustainability as a vehicle for growth and profit, rather than just another box to tick,” said Sonali Siriwardena, Global Head of ESG at Simmons & Simmons. “In the face of challenges to ESG investment, there is consensus from senior executives and investors that those who go furthest today will make the greatest gains tomorrow.”
Read the full report here: “A sustainability state of mind: unlocking growth and profit”
Gareth Peirce Gets Her Justice Rewards
For those of a certain generation the name Gareth Peirce, the leading human rights lawyer and senior partner at Birnberg Peirce, will bring back sad and difficult memories of miscarriages of justice when the police priority was to get someone/anyone banged up for committing terrorist atrocities rather then the right person. The Guildford Four, the Birmingham Six, and the family of Jean Charles de Menezes all owe a great debt of gratitude to Gareth Pierce who persisted in holding the authorities to account for their deep errors.
Already much lauded, Peirce was awarded a Lifetime Achievement Award at this year’s Inspirational Women in Law Awards run by The Next 100 Years, the successor project to the First 100 Years. As the organisers observed, during her 45-year legal career, Ms Peirce has been involved in some of the most iconic human rights cases in recent British legal history. Most recently, she has acted for Shamima Begum, the British-born woman who entered Syria to join the terror group Islamic State at the age of 15.
Interestingly, Peirce’s first career choice was not the law but journalism. After university she departed to the USA where she covered the story of Martin Luther King Jr. It was that experience which directed her towards law and, after qualifying as a solicitor in 1978, she then focused on human rights law working with the late Benedict Birnberg. In due course she took over as senior partner at Birnberg Peirce and she remained there for the rest of her career. Single-minded one might say (with some admiration).
Sixth Formers Targeted by Baker McKenzie To Make A Good Beginning
Baker McKenzie has joined the growing number of City law firms who are reaching out to schools to extend the prospects of non-traditional entrants to the legal profession through its new ‘Beginnings at Baker McKenzie’ Programme,
Each year, twenty Year 12 students will be selected to take part in the 18-month social mobility-focused development scheme. As the firm puts it, “It aims to increase access to the legal profession for students from lower socio-economic backgrounds and empower them to build the industry skills and social capital needed to thrive in the legal profession.”
As well as attending regular skills sessions along with networking events and a summer work experience placement at the Firm, each student will be assigned a mentor to support them throughout the programme. Then during Year 13, they will also receive UCAS support, negotiation and presentation skills training and be offered opportunities to attend events before starting university. Those who show themselves really committed to the law can then apply for the ‘Futures at Baker McKenzie Programme’, which will offer further support and development opportunities during their first year at university. There will also be some financial support.
“As a Firm, we are committed to supporting and enhancing client outcomes by recruiting the best talent, irrespective of socio-economic background,” commented the London Graduate Recruitment Partner, Priyanka Usmani. “We have already put in place a number of successful initiatives to help us achieve this and the launch of the ‘Beginnings at Baker McKenzie’ Programme, which focuses on early engagement, will help to further level the playing field and create equality of opportunity for individuals from a non-traditional background entering the legal profession.” It will be interesting to see the results whoch follow.
The Law’s Four Pillars of Wisdom according to Obelisk
The ‘legal ecosystem’ needs to change and focus much more on the values of ‘People, environment and purpose’ according to a new report World in Motion: why the legal profession cannot stand still’ published by Obelisk Support. According to Dana Denis-Smith, Obelisk Support’s CEO, the report sets out to investigate ‘how the next generation of lawyers is expecting the legal profession to shift to a business model that prioritises sustainability beyond profitability’.
This new style for the practice of law, it is suggested, will be supported by ‘four key pillars’ which will help drive the change the profession needs to see:
– purpose and profit;
– environment;
– access to the profession;
– and ethics.
The implications of this bright vision for the future will be a step too far for some firms. For example, it implies a conscious decision to decline work from certain clients – notably in the energy business. Likewise making the big step to becoming a registered ‘B Corp’ business which, as the report points out, ‘goes way beyond signing a charter and issuing a press release’. (‘Certified B Corporations are leaders in the global movement for an inclusive, equitable, and regenerative economy’.)
And inevitably there will be dilemmas As one lawyer is quoted as saying in the report, “Presumably most of the companies that are doing green projects are the oil and gas companies, so do you say No to all of their work? Or Yes to only some of it? But then if you say No to some because it’s oil and gas, they’re not going to give you other work. So where do you draw the line? And then do you say No to certain green projects that require rare Earth minerals? It’s very complicated.”
It sure is! If you want to be even further challenged go to
https://obelisksupport.com/thinking/reports/world-in-motion/
CONTRIBUTED ARTICLE OF THE WEEK
New Pro Bono Connections
by Jamie Goldsmith KC
There is a long tradition of UK lawyers acting pro bono, said to stretch back to the medieval ages. Without Mrs Donaghue’s lawyers acting pro bono, Mr Stevenson’s snail-infested ginger beer might not have led to the concept of a duty of care. (Of course, in Ancient Rome, the Lex Cincia prohibited advocates from charging any fees, proving that one can have too much of a good thing).
At Pro Bono Connect (www.probonoconnect.co.uk), we have a network of over 100 law firms and chambers willing to work together on pro bono as a team.
However, the future of pro bono doesn’t just require lawyers. There are a whole wealth of litigation support providers and experts needed in modern litigation. I know that from first-hand experience. Around 10 years, I did a case pro bono for a lady whose husband had forged her signature on a bank loan and mortgage over the family home, taken the money and run. When the loan wasn’t repaid, the bank sought to enforce its security. My client and her young children had nowhere else to go. Whilst I was able to find legal arguments to try to prevent their eviction, what was really critical was the assistance of a handwriting expert. However, my client had no money to pay for one. It was really difficult to find an expert willing to act for free. In the end, an expert did agree to help. Her report proved conclusively that the signature was not my that of my client. The case settled within weeks.
Since we set up Pro Bono Connect, I have been wanting to bring experts and litigation support providers into the pro bono family. Happily, the National Pro Bono Centre had the same idea. The result of this shared vision is Pro Bono Expert Support, the first pro bono litigation support service. The scheme will feature experts from a whole range of fields including forensic accountancy, investigations, strategic communications, eDiscovery, case presentation, costs, translation, and a plethora of expert witnesses. They will work together with a pro bono lawyer to ensure that the full spectrum of modern litigation services are available to anyone who requires them to get justice. The initiative was launched at the Supreme Court on 9 November 2023 with the support of Lady Rose and Mr Justice Robin Knowles. The future of pro bono is bright indeed.
Jamie Goldsmith KC is a Barrister with One Essex Court
LEGAL COMMENT OF THE WEEK
TOPIC: This week’s insolvency statistics published by the UK government
COMMENT BY Georgia Quenby, Partner, Fladgate
“The October 2023 insolvency statistics show a continuation of the post-pandemic trend of a significant increase in the numbers of CVLs, a doubling of the number of CVAs from 11 to 23 and a further increase in administrations from 125 to 146 as against September2022. For context, these 23 CVAs represent more than 4 times as many CVAs than October 2022. At 146, the number of company administrations is 36% higher than October 2022, but this is a slight slowing of the rate of increase in administrations bringing the curve much more into line with historic averages.
The CVLs are likely to reflect a continuing “clear-out” of small businesses which have ceased trading across a whole range of sectors. But the increase in CVAs and administrations bringing the numbers more in line with 2019 and prior years is probably reflective of the continued availability of new money to support businesses which can be restructured and continue trading.”
TOPIC: The Supreme Court’s decision on the Government’s Rwanda Scheme for Refugees
COMMENT BY: Dr Helen O’Nions, Associate Professor at Nottingham Law School
“The ruling is a huge relief, but I am very concerned that the Government are trying to dress up the defeat as a partial victory by saying that a negotiated bilateral treaty will address the very real risk of refoulement. Meanwhile the deputy chair of the Conservative party Lee Anderson is advising the prime minister to break the law and ignore the ruling.
Non-refoulement is a fundamental obligation found in both international refugee law and human rights law. It is also regarded as customary. The cornerstone of refugee protection cannot simply be bilaterally renegotiated. This judgement is an enormous relief for the many threatened with detention and removal, but it leaves in tatters the Illegal Migration Act which is based around detention and removal to a ‘safe’ third country for those considered to be entering illegally. So far no ‘safe’ third country has been identified, and the UK’s detention estate is far from adequate to accommodate those pending removal.
The answer to refugee protection is in facing up to our international responsibilities and working with other countries to reduce the root causes of irregular migration, the Government appears committed to the opposite course of action.”
COMMENT BY: Joanna Ludlam, Disputes Partner and London head of Baker McKenzie’s Regulatory, Public & Media law team which worked on this case pro bono for the UN High Commissioner for Refugees (UNHCR)
“UNHCR’s evidence in this case was pivotal in determining the Supreme Court’s ruling. There are many people today and in the future who have a very desperate need for safety and who, thanks to our pro bono work on this case, will be able to look on yesterday as the day that saved them from the distress, anxiety, trauma and, possibly, worse, of being sent to Rwanda. By any measure, we have made a profound humanitarian impact.”
TOPIC: The UK government’s announcement of a wide scale review of the workings of the National Security and Investment Act 2021 (NSIA)
COMMENT BY: Alex Haffner, competition partner, Fladgate
“The government’s call for evidence on the workings of the National Security and Investment Act (NSIA) 2021 is extremely broad and suggests it is considering making substantive changes to its scope and workings. When it framed the Act and the criteria for notification of qualifying transactions, the government set a wide scope. This has meant that the vast majority of notifications received by the Investment Security Unit within the Department of Business are ‘technical’, in so far as they qualify for assessment but have little if any real impact on national security. What will be most interesting therefore will be how far the government will be prepared to go in paring back the Act whilst ensuring that it still meets its primary objectives of protecting UK strategic assets and technology from potentially malicious actors. Given that transactions in qualifying sectors is mandatory and has a suspensive effect on completion of those transactions, any changes are likely to be broadly welcomed by the business community.”
APPOINTMENTS OF THE WEEK
FLADGATE
Simon Goldring (left) is joining Fladgate as a Partner in its Dispute Resolution practice (bringing with him a team of three Associates). Formerly with Maurice Turner Gardner, Goldring has a decade of experience advising on contentious trusts and probate matters, working with settlors, beneficiaries, executors and trustees on a broad range of contentious matters. He also has significant Private Wealth and commercial dispute experience, counselling individuals, family offices, charities and corporate entities on a wide array of estate planning solutions and corporate transactions.
He is well-known as the chair of the Trusts in Litigation conference, reckoned to be the largest Private Wealth disputes conference in the UK and co-founded ConTrA (the Contentious Trusts Association) in 2015. This is now a 750-member strong association for ambitious solicitors and counsel specialising in trust disputes.
“Private capital is increasingly important to us as a firm,” says Jonathan Riley, Partner and Head of Private Wealth at Fladgate. “Simon’s appointment is a serious indicator of our investment in this space. His overlapping specialisms in Dispute Resolution and Private Wealth are highly valued and align perfectly with Fladgate’s broader aspirations.”
OPUS 2
Beau Wysong (left) has joined Opus 2, the provider of legal software, as senior vice president of global marketing with an emphasis on U.S. growth.
Wysong has two decades of marketing and sales executive experience including at HighQ, which Thomson Reuters acquired in 2019, and Responsive, the leader in strategic response management.
His track record includes building teams and leading successful go-to-market strategies for high-growth SaaS, legal tech and B2B software companies.
“We’re excited to leverage Beau’s experience leading global B2B SaaS marketing teams in companies at different stages of growth, ranging from startups to publicly traded businesses,” said Charlie Harrel, Opus 2’s chief operating officer. “I am confident his leadership will make a huge impact as we prepare for rapid growth in the United States and the more than 90 international legal markets we serve.”
Founded in London in 2008, the company now serves 100 percent of the top 50 international firms and 88 of the AmLaw 100. Opus 2 seeks to further increase its market share throughout the legal sector.
We hope that you have a good weekend and look forward to returning next with further legal diary news.
Please continue sending in your stories, insights, comments and appointments to
fennell.edward@yahoo.com