Edward Fennell’s LEGAL DIARY

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

May 17 2024

Editorial contact: fennell.edward@yahoo.com

Martin Bunch of Bates Wells – A supporter of B Corp

 A mighty list of the great and the good of UK business appeared in the national press yesterday to mark Better Business Day. They were backing a ‘simple change in the law’ to overturn the current regime of shareholder primacy – which means, as they put it, that company directors ‘too often put the needs of people and the planet second to profit’.

Instead what was required, these corporate glitterati argued, was that business should become ‘a force for good’ by aligning the interests of all stakeholders: workers, customers, communities, and the environment as well as shareholders.

“Updating Section 172 of the Companies Act through a Better Business Act would put society, workers — and the bottom line — on an equal footing,” they said. “All political parties should commit themselves to such a change in the next parliament.”

Somewhat surprisingly amidst this array of top names only two were law firm grandees – Jeff Twentyman of Slaughter and May and Martin Bunch of Bates Wells (a supporter of B Corp). How come our legal leaders are such shrinking violets on a matter which clearly appeals to so many of their clients?

The LegalDiarist

In this edition

– Dentons rallies to Ukraine

– Buccaneering Buchanan Opens in Miami

– Law Firms Combine to Offer New Advice Service to LGBTQ+ community

– Loping Lawyers Go On the Run

HOW CULPABLE ARE SOLICITORS FOR THE POST OFFICE SCANDAL? by Simon Goldberg

on Operation ‘Early Dawn’, Lifestyle Equity v. Ahmed, the Steve Davies ‘Chauffeur to Princess Di’ case, women and NDAs, birth trauma, equality and access to IVF.

at Bird & Bird

Dentons rallies to Ukraine

With impressive timing – just as the Russian military opens a new front towards Kharkiv – the world’s largest global law firm, Dentons, has announced the appointment of a ‘Global Task Force’ to lead the Firm’s efforts help clients ‘navigate Ukraine’s transformation and rebuild’.

According to Esther McDermott (left), a London-based Partner and Co-Head of Projects at Dentons, “The market is ready to now start speaking about Ukraine. We are seeing significant momentum and energy, and the onus is now upon us to address these opportunities.”

The idea is that the Task Force will lead Dentons’ client-facing response, to co-ordinate cross-practice and cross-border experts from across the firm including those in energy and natural resources, technology, infrastructure and investment sector expertise. Together they will work alongside Dentons’ team of Ukrainian lawyers.

“Our clients are engaged in rebuilding Ukraine and require the multifaceted and cross-border offering that Dentons is able to provide,” said Elliott Portnoy, Dentons’ Global CEO. “Our remarkable team in Ukraine, combined with the reach and expertise of our Global Task Force, is poised to help clients as they help Ukraine regain its position of stability and success”.

 Dentons has had a presence in Ukraine since the early 1990s and has historically advised international clients with needs in Kyiv and across the country – so presumably it has a good understanding of the size of the challenge.

“We have an outstanding team of Ukrainian lawyers who are playing their part in helping international investors navigate and advance the opportunities that lie ahead for them in our country, and in turn, helping to rebuild our country as a key player on the international stage,” said Oleg Batyuk, Managing Partner of Ukraine’s Dentons office. Let’s hope they make it.

Buccaneering Buchanan Opens in Miami

From South East London to the Miami Waterfront

The London-based specialist international legal recruitment firm Buchanan Law has announced that it is opening a new office in Miami – increasingly regarded as the principal hub for the US east coast legal industry.

With a well-established London office in Hatchers Yard SE1 the firm is now going to operate from the Sabadell Financial Center in Brickell, a commercial hub in Miami. This represents a major statement by Buchanan to the many large law firms who have expanded into the area in recent years.

Heading up the new office will be Thomas Hanlon, director and head of Buchanan’s US practice. Also relocating to Miami is the firm’s CEO James Baker in a reflection of the firm’s ambition for its US practice.

“The global legal talent market is more competitive than it has ever been, and we are seeing firms completely reimagine the hiring process,” said Hanlon. Being ahead of the curve and having our finger on the pulse is what allows us to connect our clients with the very best talent. Our Miami office will allow us to continue to service these clients across the US – the largest legal market in the world, and one that shows no signs of slowing down.”

Buchanan specialises in placing top legal talent across the board from large full-service firms to smaller specialist firms, as well as in-house at major corporates. “While we have been in the US market now for many years, and have built excellent relationships with top firms,” comments James Baker, “the launch of our Miami office solidifies our commitment to providing the very best in legal recruitment solutions at an international level.”

Law Firms Combine to Offer New Advice Service to LGBTQ+ community

They may be commercial rivals but Clyde & Co and Baker McKenzie have come together in support of a new a new pro bono law clinic designed to support members of the LGBTQ+ community who face workplace discrimination. Under the title ‘Pride Beats Prejudice’ the service is offered in conjunction with with King’s College London Students’ Union and Tower Hamlets Law Centre to offer one-off advice to users who email their queries into a dedicated inbox. The first response will be by phone to discuss the problem followed, if appropriate, by a face-to face discussion either in person of virtually.

The idea for the service came from Joe Hayes, a student at King’s College London with the first virtual clinic being provided by Baker McKenzie in March.“I am delighted to have launched ‘Pride Beats Prejudice’ and to have had the support of Baker McKenzie to get this important service up and running,”said Hayes. “As an active member of the LGBTQ+ community, I want to bring legal information to people easily. I hope that by providing a service like this free law clinic we can give young, vulnerable LGBTQ+ individuals the chance to understand their rights in full”

Emma Rehal-Wilde, Senior Pro Bono Associate at Baker McKenzie added, “One of the key focus areas for our pro bono programme is ensuring equity and opportunity for vulnerable populations. Although a lot of progress has been made in terms of LGBTQ+ acceptance and inclusion, services like ‘Pride Beats Prejudice’ are still essential to ensure that members of the community feel safe and able to be themselves in the workplace.”

Loping Lawyers Go On the Run

The London Legal Support Trust (LLST) is in line to be the beneficiary of a £1million fund-raiser as senior members of the Bar and the Bench aim to take on a 10K run around the route of the London Legal Walk.

The target date is Tuesday June 18th when two teams of top briefs and judges battle it out to set a new record for the course. Sam Townend KC (above), the Chair of the Bar Council will lead the barristers while High Court Judge Adam Constable KC will set the pace for the judiciary. “The fastest team will earn pride of place and take home the glory,” comments the official announcement.

“I and members of the Bar and the Judiciary are going the extra mile — six in fact — to raise as much money as we can for LLST,” said Sam Townend. “Unfortunately, its work enabling more of the public to have access to justice is as important as it has ever been. I hope everyone in the legal profession will join us to push the sum raised to over £1million for the first time and take part in the Walk, which I will also be doing alongside the Bar Council team. Thank you to those who already registered — your participation will make a huge difference to the lives of thousands. I hope to see you and lots of teams along the route later this year.”

Last year 16,000 participants from 1,000 organisations were involved and raise a record £965,000. This year they want to push for that extra £35K and reach the £1million mark for the first time.

For the record, the two teams consist of:

The Bar Team: Sam Townend KC (Keating), Abigail Bright (Doughty Street), Nargees Choudhury (Rose Court), Neil Hext KC (4 New Square), Michael Lemmy (Byrom Street)

The Bench Team:The Honourable Mr Justice Constable, The Honourable Mr Justice Linden, The Honourable Mrs Justice Steyn DBE, The Right Honourable Lord Justice Haddon-Cave, The Honourable Mrs Justice Joanna Smith DBE

AI UPDATE OF THE WEEK: Copilot for Microsoft 365 available to all at DWF

DWF has announced that it is adopting Copilot for Microsoft 365 for the whole firm as part of its Digital Transformation programme. This follows a trial which started in January involving 300 members of staff. “The feedback has been overwhelmingly positive, both in terms of the intuitive nature of the technology and the outputs it generates,” reports the firm.

Copilot for Microsoft 365 can undertake a number of tasks including summarising emails, identifying actions or drafting replies, creating first drafts of project plans or presentation templates, analysing data sets and providing transcripts or key outputs from Teams meetings.

“This is an exciting development for DWF which will help our colleagues to save time, be more productive and work more effectively,” said Matt Glenville, Chief Operating Officer at DWF. “We believe that giving our colleagues access to Copilot as standard, whatever their career level, business area or location, will be a differentiator for us and help us to attract and retain the best.

“Fee earners will have the opportunity to focus more of their time on delivering the exceptional service our clients expect. It will help us to make further improvements in our business-as-usual activities and is the latest step forward towards realising the capabilities of AI across our business.” 

HOW CULPABLE ARE SOLICITORS FOR THE POST OFFICE SCANDAL? by Simon Goldberg

(This is an extract from a longer article published by Simons Muirhead Burton LLP )

A question that I frequently ask myself when considering the role of solicitors in the PO Scandal is whether, and if so to what extent, are the lawyers the tail which is wagging the dog? What I mean is this: were the Post Office’s various internal and external solicitors actually driving and determining their client’s policy on the criminal prosecutions and civil claims?

I am firmly of the view that this is indeed the case, and that solicitors (and barristers) were determining and guiding legal strategy to prosecute and defend civil claims from innocent sub-postmasters, the added plus for them being the eye-watering fees that adopting such tactics would garner. If my theory is correct, which I will leave it to the reader to decide, regrettably, lawyers in general – with solicitors leading the charge – are very much in the mix in the category of bad actors who have dragged the Post Office down, and who have unfortunately contributed to the lives of thousands of innocent sub-postmasters and their families being destroyed.

Lord Chancellor Alex Chalk has stated publicly as recently as 1st May: “I am immensely proud of the reputation that our legal sector has around the world”. I believe the exact opposite is true, and that the Post Office scandal has tarnished the reputation of solicitors (and the entire legal profession) on a massive scale.

As regards the SRA’s waiting game approach, most commentators and the general public think that if clear wrongdoing has been established on the part of any solicitors, why delay matters, as many of those these breaching lawyers are still in practice, plying their trade? I agree: it is unarguable, from a public perspective, that wrongdoers need to be made an example of, and waiting for the findings of the Inquiry – which will be another 18 months at least – is not going to instil the confidence of members of the public of a profession that has been so terribly (and justifiably) hammered due to the actions (and misconduct) of the army of Post Office solicitors. Following a closer analysis of the relevant sections of the Code and the SRA principles as outlined above, as solicitors – and I am speaking as one – we are also under a higher duty than lay people. In light of this, sanctions should most definitely follow. Indeed, if they don’t, the usual questions will be asked about whether the rules are fit for purpose, and whether enforcement on the part of the SRA is rigorous enough.

Simon Goldberg is Senior Partner, Simons Muirhead Burton LLP

TOPIC: The Ministry of Justice’s ‘Operation Early Dawn’ to release prisoners from gaol in order to ease pressure on occupancy levels. The scheme will also impact the flow of prisoners to the magistrates’ courts with some cases being prioritised over others on a day-to-day basis.

 Comment By: Sam Townend KC, Chair of the Bar Council

 “The Bar will, of course, do everything that it can to ensure that the day-to-day administration of justice continues so far as possible.

 “To blame the Bar for this, as the Ministry of Justice’s statement seems to, is wrong. Covid and the Criminal Bar action happened in the past. It is how you respond to it that is the test for Government.

 “Operation Early Dawn is just one symptom of the chronic lack of investment in the criminal justice system for so long, along with up to 70-day early release of prisoners, the average time to trial now at a year, and the backlogs worsening. 

 “We cannot continue like this. 

 “With reducing numbers of guilty pleas and victims of crime giving up on criminal cases, the Government must now show that it takes criminal justice seriously. Real and sustained investment in prisons, courts, judges, solicitors and barristers is needed and now, otherwise these emergency measures will just precipitate more.”

TOPIC: Lifestyle Equities C.V and another (Appellants) v Ahmed and another (respondents)

COMMENT BY: Mark Buckley, commercial litigation partner, Fladgate

In what appears to be a get out of jail free card for company directors, The Supreme Court today in the case of Lifestyle Equities v Ahmed held that directors will not be liable if their company is responsible for a strict liability offence, such as trade mark infringement, if those directors did not have knowledge of the facts which make the act done by the company wrongful.

In this case the trial judge found that the company infringed Lifestyle’s trade marks for BEVERLEY HILLS POLO CLUB on clothing it produced. The company then went into administration.

However, there is a long line of cases, particularly involving IP infringements, where a director of a small company, who is effectively the alter ego of the company, can be jointly liable with the company for such infringements.

After this judgment, as the burden of proof will be on the Claimant to show what the director’s state of mind was, this will be a barrier to bringing claims against directors of counterfeiting companies and other IP infringers.

The case also restricted the amount of damages by way of an account of profits that a director is liable for even if the director is responsible for the infringement.”

TOPIC: The case of Steve Davies, chauffeur to HRH the Princess of Wales who was sacked following false allegations by BBC journalist Martin Bashir that he had been briefing the press against her.

COMMENT BY: Samuel Rowe of 5RB on behalf of the BBC, before the Honourable Mrs Justice Steyn

The BBC accepts that the allegation made about the Claimant was and is wholly false and should never have been made, and that it constitutes an attack on the Claimant’s reputation both personally and professionally. The BBC accepts that the allegation was likely to have caused HRH the Princess of Wales to doubt the Claimant’s loyalty and professionalism and may well have contributed to the Claimant’s redundancy six months later. The BBC is sorry for the distress and harm suffered by the Claimant.”

NOTE: Mr Davies was represented by Persephone Bridgman Baker and Caitlin Harris of Carter-Ruck, and William Bennett KC and Chloe Strong of 5RB.

TOPIC: Reports that almost half a million women have signed Non Disclosure Agreements following workplace harassment, bullying or discrimination, released by campaign group Pregnant Then Screwed,

COMMENT BY: David Greenhalgh, employment lawyer and partner at Excello Law

Do not assume that all former employees exiting under a settlement agreement want their personal business to be made public. Often once they feel they have been compensated financially for what they have been through they just want to find a new employer that will treat them better and move on quietly.  

Settlement agreements always expressly allow for the former employee to whistleblow and report matters to the police. This means that if you sign an NDA you are not completely shut down as is often wrongly reported.

Having children can unfairly result in negative changes in terms of how employers view and treat employees which can result in threatened claims and settlements.  But having children can also change how an employee views their role and what they want and need from their employer going forward.  As a result there will sometimes be a disconnect which cannot be resolved and in such cases a settlement agreement may well be the best option.”

TOPIC: The ‘birth trauma’ report released this week

COMMENT BY: Jon Crocker, Managing partner and Head of Clinical Negligence and Personal Injury, Bindmans LLP

“The stories referred to by the Inquiry are all too familiar to us. We see the same issues arising year after year with little sign of learning from mistakes. These problems have been compounded by a shortage of experienced midwives, and staff retention problems. There is little sign that the multiple inquiries into maternity care at a number of Trusts over the last decade have led to a sea change in the delivery of services. It is time for a centrally led overhaul.”

TOPIC: The announcement of changes in the law to “ensure equality for people living with HIV and female same-sex couples in accessing IVF”

COMMENT BY:Sarah Green, Partner in Family team, Michelmores

“This is welcome news for same sex couples and LGBT+ people who wish to be parents.  The old rules provided an unfair financial penalty for female couples who were required to pay for screening and tests which were not require for heterosexual couples.  Everyone undergoing IVF treatment should be treated fairly.

“Whilst this is a step towards positive change, there is still a way to go to address the many barriers to accessing fair fertility care. Lesbian couples must attempt and pay privately for IUI before IVF is considered, and access to IVF can be a postcode lottery.  Many lesbian couples are therefore looking for alternative, cheaper ways to start a family, and putting themselves at risk for example obtaining sperm from a known donor, through intercourse with someone they have met online, from an unregistered bank, unregulated clinic or from a clinic abroad.  As well as the potential health risks, most people will be unaware that these steps can also have unintended legal consequences in the UK.”

Bird & Bird

Hiro Iwamura has been appointed as a partner at Bird & Bird in order to open a new office for the firm in Tokyo. Qualified as a solicitor in England and Wales as well as an attorney in New York, Iwamura is also a registered foreign lawyer in Japan and admitted to the Tokyo Bar Association. Formerly at Ashurst in Tokyo (where he headed their UK/European Japanese practice) Iwamura began his career in the US before moving to the UK in 2005. He has predominately worked with Japanese clients advising them on how to enter the US and UK markets (for example, by M&A, joint ventures and the establishment of subsidiaries).

He has also offered a wide range of day-to-day legal advice to Japanese clients including general contract reviews, compliance advice, corporate reorganisations, dispute resolutions, employment matters, real estate transactions and advice on administration/liquidation and withdrawal of businesses.

Hiro is a brilliant addition to our partnership and will help successfully steer our Tokyo office in the months ahead,” said Christian Bartsch, CEO of Bird & Bird. “We look forward to him joining us.”