EDWARD FENNELL’S LEGAL DIARY

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

8 December 2023 Editorial Contact: fennell.edward@yahoo.com


Those were the days! Image courtesy of the Supreme Court

When Jonathan Sumption, the former member of the UK’s Supreme Court, weighs in against you then you need to start worrying. In connection with the Government’s intention to legislate that Rwanda is a ‘safe place’ Sumption said it was unlikely that the bill could get through the House of Lords where a lot of the expert work is done in finessing complex new legislation.”It would be constitutionally a completely extraordinary thing to do, to effectively overrule a decision on the facts, on the evidence, by the highest court in the land,” he commented.

Where one wonders, is the Lord Chancellor in all this? The PM, whatever his A level results, is not a lawyer. Indeed maybe his grasp of the law is akin to Liz Truss’s grip on economics. Hence, the law is in danger of falling into disrepute in the UK. Surely it is time for a General Election?

The LegalDiarist


In this week’s Edition


LEGAL DIARY OF THE WEEK

+ Lawyers Behaving Badly (again)

+ Progressive Spanish practices

+ Serle’s Up with the Skylarks

+ Meet my New Best Friend, my ex-spouse

LEGAL COMMENT OF THE WEEK

on the new EU AI Act, the Government’s migration legislation and the Churchill judgment

LEGAL APPOINTMENT OF THE WEEK

at Ropes & Gray

+ Lawyers Behaving Badly (again)

Beware! Barristers eat you alive here

English society, it seems is, suffused with bullies, aggression and abuse. After all if an OFSTED inspectorate can (as seems to be believed) bully a headteacher to death it’s no surprise if bullying will also be found in the law. Just this week, indeed, the Bar Council published research which showed that increasing numbers of barristers have had their professional lives ‘made more difficult’ because of inappropriate and unacceptable behaviour at the Bar. And it’s not just old school Rumpole-types at it. Bullying is everywhere from judges to chambers’ staff, and solicitors to court staff.

So maybe it’s no great surprise that the backlog in cases is so long. According to this report the legal sector is replete with ‘pejorative or demeaning language, intimidating or bullying behaviour, unwanted attention, unwanted physical contact, sexual harassment and serious abuse, inappropriate comments, online abuse, or sexist, racist and ableist behaviours’. So much, in fact, one wonders how anything ever gets done with everyone either being abused (or indeed being abusive) and then going to cry in the lavatories.

What is most significant is that the level of bad behaviour is leaping up year-on-year. Whereas a mere 31% of those surveyed reported what the Bar Council discreetly describes as ‘bad behaviour’ in 2017 the figure had leaped to 44% of respondents in the latest survey saying that they had experienced or observed this kind of conduct while working either in person or online.

And again no surprise that, “Those who are more at risk of experiencing bullying, harassment and discrimination are women, people of colour, younger and more junior members of the Bar. Barristers with caring responsibilities or a disability also reported being disproportionately affected.”

Sam Townend KC, Chair-Elect of the Bar Council, commented, “The Bar Council identifies bullying, harassment and discrimination as a systemic issue and we hope the judiciary, clerks, chambers professionals and the Inns will work together with us to facilitate meaningful change. We want everyone at the Bar to thrive and enjoy a fulfilling career.”

 But who or what is to blame? COVID, Boris Johnson or Brexit? After all they’re to blame for most things. Or is it just the kind of people who get into the law in the first place? You tell me.

 Download the report – https://www.barcouncil.org.uk/resource/bullying-harassment-and-discrimination-at-the-bar-2023.html

Progressive Spanish practices

Legal Pro Bono in Spain? That’s a thought. Not much about pro bono work by lawyers outside the anglophone world has come across the overloaded editorial desks at the Legal Diary – but that just reflect insular thinking. Even so it was stimulating to hear about the Construyendo Juntos (Building Together) pro bono initiative to support non-profit organisations in Spain which has just been announced.

The claim is that this is the first collaboration of its kind both in Spain and worldwide and the unique feature is that under the auspices of the legal and tax specialists at Iberdrola (a global leader in clean energy, grids and storage’), it brings together more than a dozen major law firms (half international and half Spanish) to provide, as the announcement puts it, ‘high quality training services and legal and tax advice to non-profit organisations’. This includes providing face-to-face training sessions, producing and publishing legal materials, such as guides on legislation and relevant legal matters, and running practical workshops.

The agreement of the law firms to collaborate was signed at a ceremony held last week at Iberdrola’s Madrid headquarters. Those participating include Allen & Overy, Baker McKenzie, Broseta, Clifford Chance, CMS Albiñana & Suárez de Lezo, Cuatrecasas, Garrigues, Hogan Lovells, Linklaters, Ontier, Pérez – Llorca, Uría Menéndez, WFW and White & Case.

María Pilar García Guijarro, the head of WFW’s Madrid Office who attended the ceremony and took part in many following roundtables, observed, “I am delighted that WFW has joined the Construyendos Juntos initiative which will enable us to share our legal expertise with non-profit organisations and thereby generate a positive impact on the communities we live and work alongside in Spain”.

But can we learn anything from it in the UK?

Serle’s Up with the Skylarks

Nice conference if you can get there

It is becoming a regular annual jaunt now for Serle Court’s people to trip off to New York for their International Trusts and Commercial Litigation Conference. In fact this year’s event, held recently, was the sixth in the series with the Rainbow Room in the Rockefeller Center providing the spectacular venue – affordable if you are backed by sponsorship from Hereford Litigation (main conference sponsor), Katten (pre-conference drinks reception), Kroll (closing party), and Summit Trust (client activity), 

There was the usual varied programme for an audience of clients as well as guests and other colleagues. The subjects under discussion included how key jurisdictions approach topical issue; alternative approaches in arbitration and funding; the latest trends and troubles in shareholder disputes; maximising recovery in cross-border claims; fiduciary loyalty and the independence imperative; and issues raised by real estate, art and crypto assets. So pretty wide-ranging with something to please everyone.

Gratifyingly the post-conference feedback included comments such as ‘a real pleasure’, ‘an absorbing and engaging day’, and ‘testament to the collective expertise and enthusiasm present in the room.’ And that was before they got on to the survivors’ cocktail party at Manhattan’s top-of-the-range cocktail lounge, The Skylark.

Wish you’d been there? Here’s some of the people who were  Elizabeth Jones KCJohn Machell KC,  Richard Wilson KCProf. Jonathan Harris KC (Hon.)Timothy Collingwood KCDan McCourt Fritz KCRuth JordanMichael WalshGareth TilleyAmy ProferesHarry MartinStephanie WickendenGregor HoganMax MarenbonJohn EldrigeAndrew GurrStefano Theodoli-BraschiRyan Tang and Anneliese Mondschein. Chambers Director Kathryn Purkis, Practice Directors Nick Hockney and Dan Wheeler,

Meet my New Best Friend, my ex-spouse

Divorce? It’s getting better all the time apparently. Not everyone ends up hissing and spitting at each other and having endless rows over who gets the broker toaster. According to a new poll commissioned by the family law team at Irwin Mitchell 27% described the tone of their divorce as friendly or amicable. A further 27% said the tone was neutral and just one-in-three (32%) of respondents said the tone of their divorce was ‘hostile’ (not sure what happened to the other 14% – maybe they were stunned into silence).

The explanation for this tendency towards a mellowing of the mood is, reckons Irwin Mitchell, the change in the wider separation environment thanks to no fault divorce, mediation vouchers and the rise in friendly ‘celebrity’ splits (and we all like to emulate celebs don’t we? Maybe that controversy announcement about ‘conscious uncoupling’ wasn’t so daffy after all).

Significantly the Irwin Mitchell survey found that a quarter of respondents (25%) had resolved their divorce through the no fault divorce process. What might be surprising – and even disappointing – is that just 14% of those surveyed had resolved their divorce through mediation (which is regarded as less adversarial than going to court) And this is despite the fact that the government had poured money into it in the form of £500 mediation vouchers.

“We know that alternative dispute resolution methods still tend to be underused and misunderstood,” said Claire Filer, a specialist divorce lawyer at Irwin Mitchell “Mediation is growing in stature amongst Judges and there have been calls to make it mandatory. What’s important to remember is that you don’t have to agree on everything from day one to go through the process. It may take a few sessions for both sides to agree on all aspects of their separation but this is still likely to be quicker and cheaper than fighting through the courts.” 

Useful to remember that.

TOPIC: The imminent European Union AI Act and the need for legislative bodies to create robust legal frameworks for business

COMMENT BY: David Dumont, Partner and Head of the data privacy practice,  Hunton Andrews Kurth , Brussels

The EU AI Act is being discussed at a time of unprecedented innovation in the space and intense debate around how AI should and should not be used across various sectors. Regulations generally move slower than technology and various stakeholders, including AI technology developers and users, as well as regulators and legislators, are also facing legal questions with respect to certain AI uses for the first time.”

 “There is definitively political will at the EU legislative bodies to reach a deal regarding the EU AI Act before the end of 2023. Nonetheless, AI presents challenging legal questions and there are still key elements on which the Council and the European Parliament have not found common ground, such as the rules around foundational models and prohibited AI uses.

Specifically regarding data privacy, AI-driven products and services typically require the processing of a significant amount of personal data creating a clear tension between use of that data and some of the GDPR’s key data protection principles. However, it should be possible to develop and deploy AI products and services in a GDPR compliant manner, which is why the EU AI Act is so important as it creates a more robust legal framework for businesses to work within going forward.”

TOPIC: The recent Churchill judgment which overturned the decision in Halsey, confirming that it is not a breach of human rights to integrate mediation into the court process and, where appropriate, to order parties to mediate.

COMMENT BY: Rebecca Clark, Chair of the Civil Mediation Council (CMC)

As a charity committed to promoting resolution of conflict, we are delighted by this judgment, in which the Court has expressly acknowledged the benefits of mediation for parties who want to resolve their differences cheaply and quickly. Mediation is now where it should be – firmly embedded within the civil justice system. I would like to thank Stewarts and Edwin Glasgow CBE KC and Kelly Stricklin-Coutinho of 39 Essex Chambers who all acted on a pro-bono basis to ensure that the Court had all the evidence it needed in making this decision.”

COMMENT BY: Catherine Dixon MCIArb, CEO of the Chartered Institute of Arbitrators

This judgment confirms that integrating mediation into the civil justice system does not breach human rights. Private dispute resolution is an integral part of an effective justice system. Providing parties with access to mediation and other dispute resolution processes supported by qualified dispute resolution professionals, creates more opportunities for parties to reach a resolution appropriate for them.”

COMMENT BY: James South, Chief Executive of CEDR (Centre for Effective Dispute Resolution )

We will now enter a new era of positive change. When justice is looked at from the perspective of the disputants, they want their dispute resolved in a cost-effective and fair way, ensuring they have the opportunity to be heard, and that resolution meets their commercial and personal needs. Mediation can provide this, and today’s judgment gives the courts the tools to actively encourage settlement by allowing courts for the first time to order parties to mediate, if in their discretion they consider it reasonable to do so.”

NOTE: CMC, Ciarb and CEDR joined forces to intervene in the case, arguing strongly for this outcome.

TOPIC: The Government’s recently announced set of immigration measures whch aim to cut net migration.

COMMENT BY: Jonathan Beech, Managing Director of Migrate UK

 Hiking the current salary threshold of £26,200 to £38,700 for skilled foreign workers is a significant increase and will diminish eligible RQF Level 3 roles (‘A’ level standard) within sectors such as hospitality, horse racing and manufacturing that were added to the Skilled Occupation list in December 2020. This is because the median wage being set as a minimum is much higher than the current industry ‘going rate’.

There is now an anxious wait for the Migration Advisory Committee (MAC) to redraft its recommendations for the Shortage Occupation list (SOL). The Home Secretary has indicated this will be pared down and the 20% discount to salaries removed. The Shortage Occupation list could still be relevant as there was a brief mention that a special salary rate will be applied to the roles on the SOL. This is the hope as it will be needed to keep some industries afloat.”

ROPES & GRAY

Paul Armstrong is joining Ropes & Gray in January 2024 as a Partner in the private equity practice of its London office. 

 Originally with a private practice focusing on sponsor-backed public and private company M&A, leveraged buyouts and other investments Armstrong then joined global investment firm Permira, where he worked for sixteen years, rising to Managing Director in London, responsible for executing and structuring private equity transactions globally. He was part of the firm’s Equity Capital Markets group, advising on all aspects of public markets transactions and listed company governance globally. As a result Armstrong has extensive experience in advising on complex, cross-border private equity mergers and acquisitions, leveraged buyouts, growth investments and take-private transactions.

David Blittner, Chair of Ropes & Gray’s Global Private Equity Transactions Group, commented, “Paul is a seasoned advisor and the breadth of his 25+ years’ experience and insight will bolster our London team and further strengthen our leading global private equity offering. We are excited to have him onboard.”