Edward Fennell’s LEGAL DIARY

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

24 November 2023

One of the clarion calls of the LGBTQ+ movement in recent years has been for the right of people to ‘be their authentic selves’ in the workplace. Many law firms have adopted this standpoint with enthusiasm. Minority ethnic and social groups have also suggested that they should not be obliged to conform to dress or etiquette of the historic social norm. Again law firms have gone along with this – up to a point. Acceptance – not mere tolerance – has bonded groups of lawyers together.

And now we have Gaza. Out of nowhere (it seems for those not paying attention) events at the other end of the Mediterranean seem to be tearing some law firms apart on both sides of the Atlantic. What does this say about the ‘inclusivity’ rhetoric of recent years? Was it all just posturing – or, maybe, are some issues of identity and allegiance too deep for a statement of corporate values to accommodate? Perhaps it is time to stop pretending.

The LegalDiarist

In this week’s edition

All Well in the Law Office?

Burges Salmon – a law firm which shows off its talents

IP Arbitration? Now Free at thr EUIPO

Pack it in! Protests CORLA

VIDEO GAME ADDICTION: A GAME OF NO CHANCE? by  Dr Ryan Cushley-Spendiff

SHARIA LAW AND THE STATUS OF COHABITATION by Sobiah Hussain

on the Government’s Autumn Budget statement, fixed recoverable costs and the state of the probate service

at Burgess Mee Family Law and Lawrence Stephens

Burges Salmon – a law firm which shows off its talents

The Burges Salmon Choir now sings the firm’s terms and conditions to new clients to make them feel welcome

Staff as Burges Salmon are very good earners – and not just for themselves. They have all pulled together to put on a mammoth charity show at Bristol Beacon, the city’s cool new venue, to generate funds for the firm’s charitable theme, No Child Goes Hungry.

And we are not talking about peanuts. The sold-out event raised more than £23,300 through ticket sales, donations, auctions and a raffle. The money will now be handed over to charities such as Feeding Bristol, the Trussell Trust and the Edinburgh Food Project.which are working to tackle the issue of food justice for children and young people.

Our talent show was a roaring success and we’re so proud to have raised such a phenomenal amount for our charity partners in Bristol and Edinburgh and play our part in supporting the all-important work they do in our communities to end food poverty and ensure no child goes hungry,” said Jamie Cameron, director in the Employment team and head of community engagement at Burges Salmon “Responsible business sits at the heart of our culture and values and is core to our ambition to being a sustainable and inclusive firm to ensure our clients, people and communities flourish. On behalf of the whole firm, I would like to thank our brave and talented singers, dancers, musicians and comedians for treating us to such a fantastic show and, of course, huge thanks to Bristol Beacon for giving us the unforgettable opportunity to be amongst the very first to perform at its new impressive venue.”

All Well in the Law Office?

Is the culture changing in law firms? Has the reality of ‘all work and no play’ making young lawyers depressed and disillusioned, finally been understood?

Well sort-of.

According to a report by Howden Employee Benefits & Wellbeing, in partnership with People in Law, there has been a shift recently in the legal sector, with mental health and wellbeing taking centre stage. Notably, it claims that 84% of surveyed firms either have an established wellbeing strategy or a plan to implement one within the next 12 months.

So yes, remedies are being put in place to counter the effects of the disease of work obsession. But what about eliminating the disease itself? In fact, whatever the remedies, the survey identified heightened anxiety among employees, mainly linked to concerns about long working hours and heavy workloads. Younger employees expressed anxiety about mentoring opportunities and a perceived lack of peer support, with 30% more likely to be concerned about career progression. (Lack of ‘peer support’ due, presumably, to intense competition for promotion).

Meanwhile three out of five firms are planning to ‘make changes’ to their policies and benefits over the next year. Family-friendly policies are gaining popularity, it seems, with many firms now either implementing changes to parental leave policies or planning to do so. And two thirds of firms are making or planning to make changes to their menopause policies.

The really big shift, however, comes in the field of WFH. More than nine out of ten law firms now offer hybrid working arrangements, and 7% have embraced fully flexible work options. “None of the surveyed firms mandate a five-day office presence, reflecting a substantial transformation in the sector,” comments the report. Miracles can happen!

For more information, please visit www.howdenbroking.co.uk 

IP Arbitration? – Now Free at the EUIPO

There may not be anything such as a free lunch – certainly not in Brussels – but you can now enjoy alternative dispute resolution (ADR) services for intellectual property disputes free of charge courtesy of the EU.

This comes after the bloc’s Intellectual Property Office (EUIPO based in Alicante, Spain and the EU’s second-largest decentralised agency) announced the launch of its new Mediation Centre.

Mediation, conciliation, and expert determination and are now delivered through a team of experienced mediators and case managerwho can operate in numerous languages in order to provide greater convenience in negotiations.

The establishment of the Mediation Centre is a major step in supporting citizens and businesses in managing their intellectual property rights effectively and helping avoid expensive, unpredictable litigation processes when disputes arise,” said João Negrão,the Executive Director of the EUIPO (probably to the disappointment of some lawyers), “With 42% of EU trade mark applications coming from non-EU companies, cross-border disputes have become more and more common, highlighting the need for global and cost-effective dispute resolution services.’

The ADR tools available through the Mediation Centre are designed to support parties to resolve a wide range of disputes in a single process. Small businesses involved in cross-border cases are particularly expected to benefit and all services offered by the Centre are governed by the same basic principles – the neutrality and impartiality of the mediators, the confidentiality of the process, and the voluntary participation of the parties.(If only it had been in place pre-Brexit referendum!)

Pack it in, protests CORLA over PACCAR case

The PACCAR decision (which has implications for the status of class actions) looks likely to go down in the records of infamy of the English courts. And the ramifications of that were seen this week at the Collective Redress Lawyers Association( CORLA) annual conference. Members were merciless over the controversial judgment which had been dispensed by the Supreme Court.

Addressing the conference co-President David Greene said,The class action process can ensure consumers are able to pursue their collective rights against corporations and others that abuse those rights. But the recent PACCAR decision shows the haphazard nature of the process and the financing of claims. We welcome the proposed amendment introduced through the Digital Markets, Competition and Consumer (DMCC) Bill to correct one of the wrongs flowing from the PACCAR decision, but consumers need much more certainty as to process and financing to ensure access to justice and the enforcement of their rights.”

The PACCAR case related to alleged losses resulting from an arrangement among multiple truck manufacturers. This had violated European competition law and, the claim asserted, consumers had been forced to pay inflated prices as a result.

The case has certainly given traction to the Collective Redress Lawyers Association which is now the hub for all stakeholders in the development of class actions including lawyers, administrators, book builders, financiers and class representatives on the claimant side. Martyn Day, the CORLA co-President was adamant.“We want to see a much wider ability for consumers to get together to pursue their rights,” he said. “We want the Government to use the opportunity of the DMCC to make further changes to reinforce consumer rights.”

VIDEO GAME ADDICTION: A GAME OF NO CHANCE?

by Dr Ryan Cushley-Spendiff

Video-gaming addiction, also referred to as gaming disorder by the World Health Organisation has begun to creep its way into legal zeitgeist. Recently, Dunn v Activision Blizzard Inc et al has been publicly noticed,where the claimants are alleging that designers are purposefully creating addictive features in videogames, causing disproportionate harm to minors. To provide some context of the case: the claimants are the parents of a 13-year-old boy who has been diagnosed with gaming disorder, regularly playing Fortnite and Call of Duty for upwards of 13 hours a day. The disorder has required individualised healthcare plans as the child has begun suffering from physical withdrawal symptoms. The claim asserts this was caused by videogames that were designed with the help of psychologists and neuroscientist to encourage addictive behaviour via the application of loot-boxes, rubber-banding, and pay-to-win.

This case comes at a particularly convenient time for the claimants. Just a month prior to the complaint being filed, Epic Games settled a lawsuit alleging its loot boxes were deceptively designed with a total settlement fund was $2.7 million in Canada and $245 Million in the USA. Epic Games has clearly shown it does not want to end up with a damaged reputation and prefers to settle such cases so it can preserve its stance that a payout is “not an admission of wrongdoing”.

This behaviour should not be particularly surprising to those with a knowledge of the video-game industry’s legal and business history. The industry lives and dies on its own reputational capital, to the point where in 1994 they reorganised their entire sector of the economy and created the Entertainment Software Rating Board as a quasi-mandatory self-regulatory device. The reason? Congress had made vague threats of regulating against video-game violence, and the industry preferred, at cost to themselves, to kill hard regulation in the crib.

Where does this leave us? It is doubtful that Epic Games will let this case escalate, putting its reputation on the line, and would prefer to settle. However, history seems to be repeating itself. With countries already banning Fortnite for addictive practices and the EU, as of January 2023, making vague noises of regulation, self-regulation may again end-up being considered by the industry as preferable to regulatory interference to rid itself of the controversy on gaming disorder. But it is only through such publicised complaints that any incentive for a 1994-style reformation will exist.

 Dr Ryan Cushley-Spendiff is a lecturer at Nottingham Law School

SHARIA LAW AND THE STATUS OF COHABITATEES

by Sobiah Hussain

When Emily Thornberry spoke about Labour’s commitment to reforming cohabitation laws should they win the next general election, her primary focus was on helping women suffering domestic abuse at the hands of their partner and struggling to gain financial independence to leave their marriage or relationship.

However, it may have further reaching consequences for Islamic couples who are married under Sharia Law, but not civilly married in England and Wales. These marriages are not legally recognised under English/Welsh law, and therefore couples are simply considered cohabitees.

The number of Islamic marriages in the UK is unknown as they are not legally recorded. A couple who marries under Islamic law in the UK needs a civil ceremony in addition if they wish their marriage to be legally recognised, and to have the same legal rights as married couples.

Cohabitation reform is a complex area but affording cohabitees the same legal rights as married couples would likely benefit Islamic couples in the England and Wales. It would mean that, should they separate, the process is likely to be considerably fairer, particularly if one party is financially stronger.

If the reform came about in the way Labour are promising, women would be given greater rights to financial support under English and Welsh law. The idea is to reform the law so that women would not be trapped in unhappy or abusive relationships because they are not financially independent.

Any reform to cohabitation laws looks set to be modelled on Ireland, Scotland, and New Zealand’s structures where partners would have an equal share of goods and property upon separation and would be able to make a claim for short term financial support from their ex-partner. This would also apply to couples who are married under Islamic law, due to their status as cohabitees.

In saying this, Islamic divorce is set up to provide support for the wife, particularly if the divorce is initiated by the husband. The system requires the wife to retain the Mahr. If the husband refuses to provide a Talaq, the wife can apply for a Khula to end the marriage.

Therefore, should a couple who are Islamically married but not civilly married in England or Wales want to divorce, they can follow the routes available via Islamic divorce.

This does, however, mean claims through English Family courts, in respect of any disagreements around financial settlements are limited via this country’s legal system. In certain cases, only property claims could potentially be made or claims under the Children Act. A reform to cohabitation laws may then enable Islamic couples, not civilly married, the same access to financial support not covered by Islamic divorce.

Sobiah Hussain is a Senior Associate at Stowe Family Law

TOPIC: This week’s Chancellor’s Autumn Budget announcement regarding AI

COMMENT BY: Tom Whittaker, senior associate, Burges Salmon  

The announcements in the budget are welcome for the AI industry. Government recognises much of what industry has been calling for – investment, access to capital, access to computing capability. These announcements will be well received, coming shortly after the AI Safety Summit at Bletchley Park and industry investments in the UK, with notable AI and tech companies choosing to locate here. However, industry is still calling for more – changes to investment schemes, changes to visa systems to attract more global talent, and improving technology education at all levels. Connected to the Statement, there remains a split about whether the UK is taking the right approach with AI regulation. Some argue that the UK is doing too little, too slowly and that the EU’s proposed AI laws will set the standards in this field. Others argue that the UK is taking the right approach, utilising existing regulators and regulations without burdensome new legislation.”

TOPIC: This week’s Chancellor’s Autumn Budget announcement regarding National Insurance

COMMENT BY: Laura McDonagh, Associate in the Wills, Probate and Estate Planning Team at Gardner Leader.

Many will welcome the news that the conservative government have focused on reducing National Insurance instead of cutting the rate of inheritance tax. Cutting the 40% rate would of course have been attractive to the 4% of estates in the UK that pay inheritance tax, but it would not have affected the majority of families.

A move to increase the nil rate band threshold will actually benefit more families, many of which are facing rising house prices and therefore are more likely to fall within the group of people who pay the death tax in the future. Shadow Chancellor, Rachael Reeves, has questioned whether the rumoured cut to inheritance tax has been cancelled entirely or simply delayed. Perhaps this is something we will see the government reconsider in the Spring.” 

TOPIC: This week’s Chancellor’s Autumn Budget announcement regarding the Finance Act

COMMENT BY: Georgia Quenby, restructuring expert and Partner, Fladgate

Failure to address the aggressive changes by the government in the Finance Act in December 2020 which introduced a new priority for HMRC against commercial and financial creditors to troubled businesses is a missed opportunity to rebalance the scales in favour of business. Giving the government a super-priority has adversely impacted the amount of finance available to many UK mid-cap companies at a time when higher commodity prices, a tough retail environment and a difficult real estate market has increased costs and squeezed the revenue side of the equation.

Placing HMRC back in the pool of other unsecured creditors would have created additional borrowing capacity at a time when borrowing for growth is sorely needed. A thorough review of government support available to struggling businesses is needed to prevent unnecessary insolvencies and encourage business rescue. While the support for manufacturing in specific sectors will undoubtedly be welcome, piecemeal benefits through the capital allowance regime change, which only impact tax paying companies, and lack of support for companies outside of the favoured manufacturing sectors is not enough to change the landscape for most businesses in 2024.”

TOPIC: The Lord Chancellor’s announcement regarding an uprating of the fixed recoverable costs figures for inflation in April 2024.

 COMMENT BY: Sam Townend KC, Vice Chair of the Bar

It is good news that the fixed recoverable costs figures are again to be raised in April 2024 having been raised for the first time in a decade for fast-track cases this October. It is essential for access to justice that fixed recoverable costs thresholds keep up with rate of inflation, to allow for the work covered by the regime to be viable for both solicitors and barristers.

I am pleased that the Lord Chancellor also agreed to look at the question of independently set annual uprating of these costs recovery caps. The current system which splits the setting of the rates by the Ministry of Justice from the implementation by the Civil Procedure Rules Committee is cumbersome and lacks transparency, predictability and consistency and is bad for consumer claimants, defendants, and the legal professions.”

TOPIC:  The capacity, resources and delays across the probate service

COMMENT BY: Sir Bob Neill MP,   Chair of the Justice Committee

Concerns over probate have risen sharply over the last five years, with the waiting time for probate almost doubling in the last financial year alone. It is right the Justice Committee examine the reasons behind this, the consequences and takes evidence on the issues of capacity and resourcing.

Families across the country, have faced challenges in navigating the probate system, with reports of rogue traders and poor practice, as well as significant delays. My Committee wants to examine how the administration of probate could be improved for people who are already coming to terms with the loss of a loved one.”   

BURGESS MEE FAMILY LAW

Georgina Crane, a private client lawyer, has been appointed as a legal director at  Burgess Mee Family Law. Previously a senior associate at London law firm EMW LLP, Crane has an extensive track record of advising high net worth individuals, City professionals, entrepreneurs, and family offices. She normally works alongside established financial advisers and other professional advisers for a co-ordinated and integrative approach to clients’ estate planning.

In her new role she will focus on expanding Burgess Mee’s private client offering. This includes wills, tax planning, trusts, lasting powers of attorney, probate and estate administration work.

:Georgina has a wealth of specialist expertise and we’re delighted to welcome her to Burgess Mee.,” said Antonia Mee, partner and co-founder of Burgess Mee, “Building our private client practice is a strategic priority for the firm, enabling us to offer families and individuals a complete package of private client and family law advice.”

Ten year old Burgess Mee is ranked as a top-tier firm by Chambers UK 2024; and included in eprivateclient’s 2023 list of Top Family Law Firms.

LAWRENCE STEPHENS

 Jim Richards and Eleanor Wood (above) both Senior Associates, have been appointed joint Heads of the Family practice at Lawrence Stephens.

The Legal 500 ranked Wood as a ‘Key Lawyer’ and an ‘Associate To Watch’ in Chambers & Partners. She works closely with clients on complex family issues, with a particular interest in Children Act matters, including cross-border relocation, change of residence applications and internal relocations, as well as divorce and matrimonial finance work, including the division of businesses and high-value properties.

Richards has had more than 15 years experience, specialising in a range of family litigation matters involving a number of different assets and jurisdictions, particularly financial settlements and children cases. He was previously a member of the Law Society Children’s Panel, working on complex cases where the children were parties to the litigation.

“We are delighted to announce Eleanor and Jim’s appointment as Heads of our Family department,” said  Steven Bernstein, Managing Director and Co-Founder of Lawrence Stephens. “This appointment marks our continued dedication to providing the very best service for our clients, and to growing our fantastic team.”