Edward Fennell’s LEGAL DIARY

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

July 01 2022 Editorial Contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK

Faith in the City, Bad Faith in Criminal Courts?

It may be the same profession but it is living in two separate universes. The escalating strike by criminal barristers has highlighted the dire condition – indeed the mortal plight – of the criminal justice system starved of money and hope. By contrast the latest survey published by CityUK of the role of commercial lawyers continues to be upbeat. And one of the key aspects of this success is the use of technology.

“Legal services is making greater use of artificial intelligence, which has the potential to lower costs over the medium to long term,” comments CityUK. “Additionally, the internet facilitates the provision of very basic legal services at low cost, bringing such services within the reach of individuals who may not otherwise be able to afford them. LawTech businesses in the UK had received around £674m in investment as of December 2020 and it is estimated that it would rise to £2.2bn in annual investment by 2026.”

On that theme it is no surprise that this morning, the day of the merger between Clyde & Co and BLM, Chris Murray, Partner at Clyde & Co, said: “The merger is our response to insurers’ changing needs. By combining our businesses, we have created a new foundation …. built on scale and an innovative vision for the use of technology.”

So, put bluntly, there is now an unbridgeable gulf between the artisan services of the criminal barrister and the commodity based, IT-heavy services offered by corporate lawyers. That’s the reality. But is there any way imaginable of reconciling the two?

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

• ‘Good Russians, bad Russians’ – read all about it in REPORTS LEGAL

• Pride in GiveOut

• Law Firm backs the LAW

• Implications of menopause on Divorce Settlements

LEGAL COMMENT OF THE WEEK on the criminal legal aid review consultation, the Family Courts Statistics Quarterly, no-fault divorce and divorce maintenance settlements

CONTRIBUTED ARTICLES OF THE WEEK

• REFORMING RENTING by DAVID SMITH, Partner, JMW Solicitors

• EMBEDDING MENTAL HEALTH INTO THE WORKPLACE: A Personal Account by TOM BRUCE, Partner at Farrer & Co

APPOINTMENTS OF THE WEEK at Mayer Brown and Punter Southall

E-VENTS at Gatehouse Chambers

THE LEGAL DIARY OF THE WEEK

‘Good Russians, bad Russians’ – read all about it in REPORTS LEGAL

The latest edition of legal news magazine ‘REPORTS LEGAL’ gets to grips with one of the trickiest issues facing Western law firms right now – how to deal with their Russian clients. The ‘safe’ approach currently – both in terms of reputation and possible sanctions – is to drop them entirely. But, rather in the same way as Churchill was to come in for criticism later for saying ‘Bag the lot of them’ in relation to German nationals in Britain in 1940, so an indiscriminate approach to Russians might appear crude in years to come.

But it is, clearly, a complicated issue.

In his interesting article ‘Good Russians, bad Russians’ Dominic Carman quotes aprominent offshore lawyer, who comments, ‘We’re being asked to decide: who are good Russians and who are bad Russians. That’s an impossible decision to take.’ Going on to reference other lawyers Carman quotes, ‘The easy thing to do is just to say: no Russian work at all, full stop. That’s the easy default option. But that is not fair on those Russians who oppose the war and who need good legal representation. Equally, if we punish the entire Russian nation for the actions of a few, it will create serious global, economic and political ramifications for a long time to come, which are potentially much worse than if we take a slightly more nuanced and sophisticated view. It’s hugely hypocritical of the UK government to have a go at offshore jurisdictions, when it has been the main recipient of Russian money over several decades.’

Indeed, just yesterday the laxness of the UK authorities in relation to oligarch money was highlighted by a cross-party group of MPs who said that “morally bankrupt billionaires” had used London as a “safety deposit box” for years. They added that it was “shameful” that oligarchs had been welcomed in the UK for so long and criticised policies which had undermined national security, such as golden investor visas.

But as Bedell Cristin’s global managing partner, Tim Pearce, points out, ‘The war is not going to last forever. [So] legitimate business disputes will eventually need to be heard and go to trial. When they do, if a jurisdiction has closed that sort of business down because the courts won’t entertain it, then it will go elsewhere.’

But where? And when?

See Reports Legal at https://reportslegal.com/offshore-time-of-turmoil/

Pride in GiveOut

It’s PRIDE month and to mark the occasion Travers Smith and Allen & Overy in conjunction with GiveOut, the organisation they jointly sponsor, are launching the LGBTQI Legal Aid Fund.

The fund’s aims are to support LGBTQI organisations which are using the law and courts to advance equality – including in those countries where same-sex relations and trans identities are criminalised.

Currently, it is believed, there are 71 jurisdictions which criminalise sexual activity between adults of the same sex. In eleven of these the death penalty is in use. Meanwhile there are as many 26 authorities which use public order, vagrancy and misdemeanour offences to harass, arrest and prosecute trans people.

Working with local lawyers and international partners, LGBTQI activists are using the law and courts to:

+Challenge laws criminalising same-sex sexual activity and trans identities

+Advance legal protections against discrimination on grounds of sexual orientation and/or gender identity

+Challenge degrading and unfair treatment of LGBTQI people

+Uphold freedom of association rights for LGBTQI people to enable them to register organisations

+ Protect and promote the rights of LGBTQI asylum seekers,

So, the first two initiatives to be backed by the fund are the Centre for Law and Policy Research (CLPR) in India, and the National Gay and Lesbian Human Rights Commission (NGLHRC) in Kenya.

CLPR undertakes path-breaking litigation along with law and policy research designed to change transgender rights in India. Meanwhile NGLHRC was founded in 2012 by six activists who sought to see a space in which the Kenyan LGBTQI community was represented not just by their voices but through legal frameworks. 

“We have been really inspired by GiveOut in their mission to support LGBTQI rights protection around the world,”said Will Samengo-Turner, a Partner at Allen & Overy. “The Legal Aid Fund’s focus on supporting access to justice work for some of the most marginalised and vulnerable communities around the world is crucial, given how challenging and underfunded this work is. We are looking forward to learning from the organisations we’re supporting and to seeing the impact of the funding.” 

Law Firm backs the LAW

Complementing the second week of Wimbledon is London Art Week (LAW) which is being sponsored for the first time by Charles Russell Speechlys. Running across thirty of London’s top art galleries and auction houses – including Christies, Sothebys, Colnaghi, Philip Mound, Sam Foggs etc etc. – LAW’s aim, it says, is to ‘showcase the finest works of art from Antiquity to the 20th Century supported by academic excellence and world-class research’ with exhibits whoch are looking lavish accompanies by music and other events.

“After a difficult couple of years, it’s wonderful not just to be celebrating the visual arts but also the musical, with a programme of outstanding talent from the Philharmonia Orchestra,” said Rudy Capildeo, Partner and Co-Head of Charles Russell Speechlys’ Art & Luxury practice. “While we have all learned to become more agile and digital, increasing accessibility and choice, being able to bring people together in St James’s and Mayfair highlights the value of community and place making.” 

 Tim Maxwell, Partner and Co-Head of Charles Russell Speechlys’ Art & Luxury practice added, “We are also pleased to be supporting and highlighting LAW’s museum and cultural partners, some of whom we know very well, and  look forward to catching up with our friends, old and new from across the art world during what promises to be another fantastic week.”

For more information on London Art Week go to – London Art Week – A major showcase of the best that London’s art world has to offer.

Implications of Menopause on Divorce Settlements

The Family Law Menopause Project has announced this week that it will be partnering with Newson Health Research and Education to undertake the largest-ever nationwide survey of women about their experience of menopause and relationship breakdown.

The aim is to uncover trends and reveal insights into to the impact menopause (including perimenopause) has during a divorce or separation and help uncover and raise greater awareness of the impact this has upon women and their families.

Family lawyer Farhana Shahzady launched the Family Law Menopause Project earlier this year inspired by concern that some divorcing women may be significantly disadvantaged financially as they approach retirement because the impact of menopause and their ability to work is not properly taken into account when financial settlements are drawn up.

“As a family lawyer, I am aware that there is no formal case law in relation to menopause and its impact on family financial cases and similarly no anecdotal cases either from family law peers I have discussed this with,” said Shahzady. “It seems to be a blind spot.” 

There is already a clear association of the peak time of divorce – between ages 45 and 55 – and the a time when menopause or perimenopause is an issue.

 “Working with The Family Law Menopause Project to create this survey is a fantastic opportunity to learn more about how the perimenopause and menopause impacts individuals and their family during a divorce or separation,” said Lucy Chatwin, Director, Newson Health Research and Education Limited (not for profit). “Our mission is to improve the health outcomes for perimenopausal and menopausal women through further education and research.  This survey is a great example of how we are developing our wider understanding of the impacts of the perimenopause and menopause, raising awareness across different sectors and seeking to identify how education and information can improve the experience.”

The survey is now open for responses and women are invited to take part and share their experiences here: https://www.surveymonkey.com/r/menopauseanddivorce

LEGAL COMMENT OF THE WEEK

TOPIC: The Written Ministerial Statement (published yesterday) in response to the criminal legal aid review consultation

Comment by Mark Fenhalls QC, Chair of the Bar Council

 “It has been a long and painful process getting to this stage. Members of the criminal Bar have been feeling mistreated, undervalued and overwhelmed for a decade or more because of the chronic underfunding of the criminal justice system.

“Today’s announcement of a 15% fee uplift is not enough to reverse the cuts of the last decade, but it is a welcome first step in the right direction. There is a lot more work to be done to undo the damage and begin to rebuild trust with the legal professions.

“The Government has committed to bringing in further reforms driven by the evidence, and it is critical that it now delivers on these pledges to future funding and reform.

“We will continue to push for the delivery of the recommendations in the independent Bellamy Review and the creation of an advisory board that can act on the evidence. We urgently need the further changes that will stop the flight from specialist criminal work of barristers and solicitors who keep the criminal justice system going.”

TOPIC: The publication, yesterday, of the Family Courts Statistics Quarterly

 COMMENT BY: Anthony Kiernan, Consultant & Head of International Family Law at Thomas Mansfield: 

“Today, the Ministry of Justice released a set of statistics from the Family Courts for the first three months of this year. The figures show a 14% growth in the number of started cases as compared to the seasonal dip in the previous quarter. Still, the new cases are down 6% in comparison to January – March of last year, likely in anticipation of the new divorce process that was enforced in April 2022.

 “It is obviously positive that spouses are no longer forced to set out horrible statements about their partners to end a marriage. Unfortunately, the new law will not have any impact on resolving children or financial matters, and that is where the real problems are. 

“To be fair, the statistics for the stated period do show a decrease in financial remedy applications (16%). However, this may only be temporary and, in any event, that slight drop in one quarter does not change the underlying problems.

“Resolving issues about children and sorting out financial claims is often a much bigger, traumatic and difficult part of ending the marriage. They are all dealt separately from the divorce and are not necessarily dependent on one another.

“Successive governments have decimated the court system, reducing the number of courts, full-time judges and other staff, obliterating legal aid and reforming the divorce process. The system is falling apart if we are not already there. And delay is endemic.

“In the Southeast, for example, delay in the court process is now so bad that lawyers frequently advise clients to partially opt out of the system and engage in arbitration. For those who can afford it arbitration is much speedier and can be cheaper in the long run. Even then arbitration awards must be sanctioned by the courts, but it is still much quicker than having to wait for a court hearing.

“But it doesn’t have to be like this. There is also an option of alternative dispute resolution, including mediation, collaborative law and the old-fashioned practice of negotiating around a table. These can be cheaper, quicker and most importantly far less stressful ways of ending a marriage.”

TOPIC: The news that no-fault divorce may lead to an increase in amicable separations

COMMENT BY:Kate Daly, co-founder of online legal services company amicable

 “It is not the law that is driving the change, which was already evident. amicable has seen a steady rise in wealthy and celebrity couples wanting an amicable divorce.”

“The law has merely caught up with an existing cultural trend, and amicable has been on the front foot as a result of the High Court judgment.”

“Also driving the change is the attitude of senior judges, who rightly have started to question the legal spend of super-rich couples and have more appetite to publish judgments.” 

“Doing things amicably allows celebrities and the super-rich to keep things private, as the consequences of a published judgment can do untold reputational damage, as evidenced by the recent example of Johnny Depp and Amber Heard. The impact of a fought out divorce case can impact brand value, so there is a real incentive to keep things on an amicable footing.” 

“There is also a much greater awareness of the impact on children, and couples realise they are linked for life as fathers have taken a bigger role in children’s lives. We understand that children need both parents, which links the parents forever, and as such, people try to set up their onwards life in a peaceful way.”

TOPIC: The return of index-linked divorce maintenance settlements

COMMENT BY: Philip Rutter, Partner and Joint Head of the Family and Divorce team at Bishop & Sewell

“The full effect of the cost-of-living crisis has yet to be felt in terms of family and divorce cases, but the early and worrying signs are there.

“Many older maintenance agreements are index-linked to inflation and that is causing concern. With payers facing maintenance payments increasing by upwards of 9%, we are beginning to see the renegotiation of those agreements. While renegotiation will undoubtedly be opposed by the receiving party, the recipients need to have a degree of sympathy as salaries are not keeping in line with inflation.

“Index-linked maintenance payments have fallen out of favour in recent years, but given the uncertainty that surrounds the economy today we are expecting them to return. Financially weaker parties will argue that these agreements must reflect their outgoings against the economic landscape. Whether they are successful or not in getting an index-linked order will largely depend on the financial picture of both parties.

“A real challenge facing divorcing couples is the chronic backlog in the courts. It is difficult to get a date for a court hearing and if you do have a date they are often cancelled at the last moment.

“We are seeing a greater appetite for private financial dispute resolution, where parties reach agreement in front of a private judge. While the costs of a private judge can appear high – in the region of £2,000 to £10,000 for a day’s hearing – they speed up the process and save divorcing couples money in the longer term.”

TOPIC: The cost-of-living crisis driving up divorce financial and maintenance settlements, says lawyers RWK Goodman

COMMENT BY: Vanessa Gardiner, a Partner in the Family Law Team at RWK Goodman

“Whilst the cost-of-living crisis is only just beginning to be felt, it is already impacting divorce in many ways. These will become more pronounced the longer it continues. We do expect to see a short-term drop in divorce proceedings as couples question whether they can afford to divorce or not, but we would expect that to return quickly. Financial challenges do heighten tensions in an already stressed marriage with divorce often the answer. We do not, however, expect to see a surge in divorces.

“We are already factoring in the cost-of-living crisis into financial settlements, particularly if they are to be finalised a few months ahead. Financially weaker parties are having to forecast how their income and outgoings might change given rising inflation and interest rates and these are being reflected in those settlements.

“Increasing interest rates and soaring house prices now means that the financially weaker party may struggle to obtain a mortgage or purchase their own home. As a result, we are beginning to see the value of capital settlements increase alongside increases in maintenance.

“We are expecting to see a more challenging environment where separating couples are reliant on investment income, particularly if they are having to dip into that investment capital, leaving less available for the financial settlement. This, in turn, may see litigation funders less willing to fund divorce proceedings. We expect to see a rise in Legal Services Order, where the financially weaker party turns to the courts for an application for the other spouse to pay to them an amount to  help with obtaining legal services and payment of legal fees.”

CONTRIBUTED ARTICLES OF THE WEEK

REFORMING RENTING by DAVID SMITH, Partner, JMW Solicitors

After years of waiting the Renter’s Reform White Paper has finally been published and it is likely to move rapidly into a draft Renter’s Reform Bill promised in several iterations of the Queen’s Speech.

Ultimately this is likely to be the biggest upheaval in private renting in England since the introduction of the Housing Act 2004. It has been a long time coming and the government has produced a 12-point plan which it asserts will make renting fairer, but in my view this is a bit of a “grab bag” of reform. Some are huge, such as an end to s21. Others, such as stopping landlords banning pets or refusing to rent to tenants on benefits are likely to end up being a bit of a damp squib as these will either affect a minority of tenants or are likely to be easily circumvented.

The key items are:

1. The long-awaited abolition of section 21. However, the government seems to be going further than this and echoing Scotland by simply abolishing all fixed term tenancies altogether. Therefore residential tenancies will be periodic from the start, with tenants able to give two months’ notice at any time. Landlords will not have the same luxury and will only be able to evict tenants with cause. Those causes are to be added to, to allow for property sale and moving back in. The detail of the actual legislation will be important here.
2. Outlawing of bans on renting to children and to those on benefits. These are pretty unsurprising. However, this is not likely to be a big change as it will not make properties more affordable to those on benefits or suitable for those with children.
3. Rent review changes. The exact mechanism is a little unclear but it seems that the existing statutory rent review mechanism will now become the standard with tenants able to challenge this via a Tribunal. However, as the Tribunal will assess rents as against the market it is not likely to ultimately change what tenants pay but simply create a more regular progression of rent increase.
4. Allowing pets. The desire for pets for tenants is unclear. However, any general permission for pets is going to have to contain a range of exceptions which may make it unworkable in practice.
5. A private-renter’s Ombudsman. Having another ombudsman seems contrary to government proposals to improve the justice system and provide an online easy-access justice portal.
6. A property portal. The government is adamant that this is not a landlord register. But if it is compulsory then it is hard to see how it is anything else, however it is dressed up.

So while future legislation along these lines would change the landscape, demand for further refinements will not cease and is already being heard from organisations such as Acorn, the community union which campaigns for better housing.

EMBEDDING MENTAL HEALTH INTO THE WORKPLACE: A Personal Account by TOM BRUCE, Partner at Farrer & Co

At Farrer & Co we recently unveiled to the rest of the firm our new cohort of Mental Health First Aiders at an event marking Mental Health Awareness Week. The theme for the week was ‘Loneliness’ and alongside talks from some of my fellow first aiders, we heard from guest speaker Josh Connolly on how we can navigate the impact of loneliness.

Our sector is getting better at prioritising mental health but there is still a way to go; and ALL of us can be a part of the change. Stress is often cited as a mainstay of legal careers, so we should be having open discussions about stress and ways to manage it. Having done so within our corporate practice area recently, I can appreciate how refreshing it is. When it feels like any progress can fly out the door as soon as a large case load comes in, ringfencing these spaces to refocus our mental health is priceless.

So making these spaces to discuss mental health in the workplace is essential – particularly so after the upheaval of the past few years. At the start of lockdown, I had thought I would cope well, but eventually the strain of the period caught up with me (with the added challenge of a newborn baby in a home-working environment!). Many people experienced Covid’s impact on their mental health to some extent, and I know this impact varied considerably depending on factors like someone’s home, location, and age.

In my own case, during difficult periods, I have always looked to those of my colleagues I consider role models, and have been very grateful for their support and understanding. This collaborative support network is part of the reason why Farrer & Co is the right firm for me, and why I chose to train as a Mental Health First Aider. I can now offer informed support to someone who might be struggling. We have been trained in how to listen and find the right words to respond in the moment, and – most crucially – where to point the individual next, if needed. As a support network, we aren’t looking to provide the complete answer to our colleagues’ struggles, but can be a signpost at the right time. I particularly hope this helps destigmatise male conversations about mental health.

APPOINTMENTS OF THE WEEK

MAYER BROWN

Paul Rosen is joining Mayer Brown as a partner in its Corporate & Securities practice in the Private Equity team. Rosen was previously at Katten Muchin Rosenman UK LLP, where he was a partner in the London Corporate practice. His background includes working for private equity clients, including their buy-and-build strategies where he has has extensive experience in the mid-market especially of a cross-border nature.

“Paul’s experience in leveraged buy-outs, growth capital investments, distressed acquisitions and restructurings will be an asset to our Private Equity practice,” said Perry Yam, co-leader of the global Mayer Brown Corporate & Securities practice. “We look forward to him joining the team as we continue to build our presence globally and expand our PE offering.”

Dominic Griffiths, Mayer Brown London managing partner, added “Paul’s appointment shows our commitment to expanding this practice group further and diversifying our client base within the Private Equity market.”

PUNTER SOUTHALL LAW

Alexandria Carr has been appointed by Punter Southall Law as a Partner to advise on UK and EU financial services regulatory law and public policy as well as working with businesses and high net worth individuals.  She is currently advising on the FCA’s Consumer Duty (final rules expected shortly) and ESG disclosure requirements.

Carr joins from HSBC where she was Deputy General Counsel. Prior to this she worked as the lead legal advisor on EU financial service strategy at HM Treasury and in private practice at Mayer Brown International LLP.

“We’re thrilled to have Alexandria join our team of highly skilled lawyers,” said Simon Cullingworth, Managing Director at Punter Southall Law. “She combines a fierce intellect and extensive legal knowledge with practical and clear advice. We wish her every success in her new role.”

E- VENTS

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