Edward Fennell’s LEGAL DIARY

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

15 December 2023

Hervé Ekué from Paris – Is this the new Managing Partner

Next year will be dominated by elections – in politics for the President of the USA and for Prime Minister of the UK.

But in the law it will be for the two top roles at the newly emergent global phenomenon of A&O Shearman.

The runners and riders are now declared for a vote in February. Without knowing them personally who can tell which of them is best for the job? And for the role of Managing Partner in particular the geographical span of the candidates highlights the challenge of selection – Belfast, Paris, Hong Kong, New York and Brussels are all represented. Global ambitions versus local roots. Quite a challenge.

The LegalDiarist

In This Week’s Edition

– And A Prosperous New Year?

– Clyde Brings Poland into the Fold

Inhumane Stress of Human Rights Law?

– Careful with the Cookie Sherry

SHARIA LAW AND DIVORCE by Yasmin Hoque, Consultant Solicitor at Jurit LLP

on the record Crown Court backlog and trade union membership

at HODGE JONES & ALLLEN and MAYO WYNNE BARBER

..And A Prosperous New Year?

Feeling a bit low after news that the UK economy has tipped into a semi-recession in the last quarter? Well brace up and thank your lucky stars that you are working in the legal sector. TheCityUK’s annual report on the state of the British legal sector would put a spring into almost anyone’s step.

Here are a few choice ‘Have A Happy Christmas’ quotes from ‘Legal Excellence, Internationally Renowned: UK Legal Services 2023’:

The sector continues to thrive. In 2022 it contributed 1.6% of UK gross value added (GVA) and a trade surplus of £5.7bn….

Our report, now in its 12th edition, underlines that the UK remains the jurisdiction of choice for international legal services and dispute resolution…

Total revenue from legal activities in the UK increased to £43.7bn in 2022, much of which was generated by the top 100 UK law firms, who netted more than £33.7bn in 2022/23 – up 8% from the previous year…

The UK is the largest legal services market in Europe (valued at £43.7bn in 2022) and is second only to the US.

The in-house sector has continued to grow. In 2022, 26% of solicitors in England and Wales and 25% of solicitors in Scotland worked in-house, up from 20% and 22% respectively a decade earlier.

London is seen as the world’s preferred centre for international alternative dispute resolution. The number of civil disputes resolved through arbitration, mediation and adjudication in the UK exceeded 16,320 in 2022

Data for 2021 shows that major centres of legal services employment in that year include London (138,000) Manchester (13,000), Leeds (11,000), Birmingham (10,000), Edinburgh and Glasgow (6,000), Cardiff (4,500) and Belfast (3,300).”

If only other sectors were equally enterprising (one might reflect smugly)!

To read the report go to: https://www.thecityuk.com/our-work/uk-legal-services-2023/

Clyde Brings Poland into the Fold

Those of a certain age will recall that back in the early 1990s Warsaw was the go-to place for London law firms to open up in Eastern Europe as the walls of Communism fell down. Often it was those with a Polish background – children of post-WW2 exiles – who hastened back to renew the family connections (and also because the spoke the language). Sitting in the salons of the handful of ‘international’ hotels at the time felt very much like being in the Wild East as every type of trader (and their accompanying lawyers) did deals.

Now, of course, it is all just so sedate and orderly as expressed by the arrival of a new pro-EU Donald Tusk government. So a good time for Clyde & Co to announce that it will shortly open an office in Warsaw following the recruitment of three key partners Arkadiusz (Arek) Krasnodębski, Agnieszka Kulińska, Radoslaw (Radek) Goral – whose collective back-stories are primarily in the energy and construction sectors with Dentons. Accompanying them will be a group of around twenty associates and legal directors. 

The Polish development is part of a wider expansion being undertaken by Clyde’s. In the course of this year there have been openings in Egypt, the USA, Italy and Thailand. And last year they opened in Canada.

Opening [in Poland’ has been a long-term ambition for us and this high calibre team provide a strong foundation for our Warsaw office to grow, bringing with them impressive energy sector expertise alongside a broad corporate and contentious offering,” commented the firm’s Chief Executive Officer  Matthew Kelsall.  “The opening of Clyde & Co’s Warsaw office is a real milestone in the firm’s international expansion,” added David Bennet, Global Chair of Clyde’s Energy, Marine and Natural Resources Practice.

But where will they go next?

Inhumane Stress of Human Rights Law?

Most public bodies in England and Wales are subject to equality and human rights duties which require them to implement the values of equality and human rights into all areas of their work,” comments a new report from the lawyers at Exeter University.

However there is a danger that staff up and down the country are beginning to feel “overwhelmed” by the weight of having to build in so many processes around human rights laws into the way they work. In fact, the report continues that these laws are seen as so ‘specialist’ that staff feel they do not have the perceived required knowledge and expertise to the point that they cannot be trusted to implement them.

This is leading to what might be seen as an over-pragmatic approach. “Implementers that see equality and human rights law as sacrosanct believe in the importance of these values but are in such awe of them that they are overwhelmed at having to incorporate them into their organisation,” commented Dr David Barrett, from the University of Exeter Law School who undertook the research. “They tend to focus on keeping it as a separate area of work and seeing implementation as a one-time task,” he continued.

“Those who see the law as malleable are more likely to trust people to implement equality and human rights, to incorporate them into all areas of the work of the organisation and to see it as an on-going task.

“If you view equality and human rights law as sacrosanct, you are more likely to believe that once you have taken action to implement these norms then you have successfully implemented them and therefore do not need to take action to implement these norms again.”

But sadly, fixing human rights ‘justone-time’ is never enough.

Careful with the Cookie Sherry

Ever inventive when it comes to cheeky little ideas, Collyer Bristow’s contributioin to this season’s festiveness comes in the form of asking Have your Cookies been naughty or nice?

“Tis the season to be jolly, and what better way to spread the festive cheer than by ensuring your website’s cookies are as delicious as a plate of freshly baked Christmas cookies you’d leave out for Santa!” the firm declares teasingly.

In what might be seen as the equivalent of a sobriety test for people at a Christmas Party the firm is offering what they describe as ‘a free taste test to let you know whether or not your website’s existing cookies recipe is compliant with the latest requirements under UK laws.’

Non-compliant cookies will give you more than just a nasty next-morning tummy ache. As the firm points out, the penalties could, potentially result in fines of up to £500,000 for contraventions of the PECR and, on top of this, up to £17.5m (or 4% of worldwide turnover) for breaches of the UK GDPR.

“Don’t let your cookies be on Santa’s naughty list this year. Take our Christmas Cookie Taste Test now!” the firm jingles on your doorstep. “Send us a link to your website’s cookie policy and our data protection chef will conduct a taste test. 

 This will cover

  • compliance with the requirements of the Privacy and Electronic Communications (EC Directive) 2003 (PECR);
  • compliance with the requirements of the UK GDPR and Data Protection Act 2018;
  • adherence to best cookie practices stipulated by the Information Commissioner’s Office; and
  • other relevant requirements and best practices.

“ You will then receive a follow-up email with your baking results and the chef’s personal review.” Yes, just what you wanted for Christmas!

SHARIA LAW AND DIVORCE

The recent article by Sobiah Hussain in the Legal Diary highlighted the potential positive outcomes available in reforming cohabitation laws.

The suggestion is that cohabiting couples in England could be given a legal framework modelled on Scotland, Ireland or New Zealand – meaning that such couples could get 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”. 

On the face of it, this may seem like a benefit for couples within England and Wales, with an Islamic law marriage. However, as a Sharia legal expert myself, I ensure that we cover a ‘holistic perspective’ when it comes to advice for Muslim clients. To me, it is highly unlikely that couples who have opted for an Islamic law marriage would intentionally jump at the chance to fit into the suggested reformed cohabitee legal framework.

At the moment couples married under Islamic law are (unhelpfully) called “cohabitees” because English law does not recognise a religious-only ceremony which took place in the UK. The cohabitee category happens to explain that lack of legal recognition. So for this reason the reforms may be some sort of ‘better than nothing’ approach. However, they certainly have no meaningful intention of seeking to extend support for Islamic couples – even if that may be an inadvertent outcome.

For private wealth advisors, we always need to ensure that there is rather more digging into the question of ‘are you married?’ when faced with Muslim clients> This would include such issues as:

+Where did you get married?

+ What type of ceremony and certifications do you have in place? (And ideally review a copy, to ensure both parties know what they have signed and where they stand on ‘married or not’ for legal purposes).

If the Islamic law marriage took place abroad then it’s valid and recognised as a valid marriage for English law purposes and a couple has a choice whether to divorce via English law or the Islamic law procedure in the relevant country. When it comes to Inheritance planning, for example, it means reassurance that there is no loss of the right to the Mahr (nowadays these can be large lump sums of £20k-£50k which remains payable out of the male’s estate if left unpaid in the lifetime as part of the Islamic law marriage).

If the Islamic law marriage took place in the UK then, unless followed up by a civil registration, it will not be recognised. The benefit of having a civil registered marriage is that both parties then have a legal route of divorce, but it also means women consent to the legal framework of other laws including equal division of assets i.e. a starting point of a hypothetical joint pot, which, from the Islamic perspective, is less generous.

If correct Islamic law principles are being followed, both individuals are entitled to retain all of their pre-martial wealth. Moreover a husband can be required to pay certain gifts such as of consolation and maintenance for the time period it can take to complete the procedure. Also there is potential compensation of the many lifetime financial benefits gained in exchange for caring responsibilities or household duties which have been voluntarily participated in while a person was in wife mode.

In reality, it is unlikely this will ever be possible as the UK economic system is not designed to facilitate these needs. Indeed, even many Muslim-majority countries struggle to practically implement what the Sharia says, possibly due to a lack of female representation in legislative chambers. (Or, in some cases because, cultural influence and nationalism have simply taken priority over aspects of the requirements of the law).

TOPIC: The record Crown Court backlog

COMMENT BY: Baroness Newlove, The Victims’ Commissioner for England and Wales

For the second straight quarter in a row, we are witnessing a new record high in the number of outstanding cases in the Crown Court. This is of grave concern.

This cannot be solely attributed to the barristers’ strike, which concluded more than a year ago, or the pandemic. It suggests there are wider systemic problems in our justice system, and I am concerned that chronic and unacceptable delays are becoming ingrained in the system. This must never be normalised nor tolerated.

Over a quarter of all cases are now outstanding for over a year and this proportion is steadily increasing. This is causing victims real and undue distress, as it potentially means they face a wait of months and possibly years before they see justice being done. This has real consequences for our justice system, with many victims unable to last the distance, resulting in prosecutions having to be dropped.

Urgent and creative intervention is needed to address this crisis. No victim should be expected to wait years before their case gets to court.”  

TOPIC: The Supreme Court’s hearing this week on a Court of Appeal decision relating to protection at work for union members and international law

COMMENT BY: Christina McAnea, UNISON General Secretary

It’s time for this glaring legal loophole to be fixed.

“Workers shouldn’t face punishment for protesting about their employer’s behaviour. They choose to strike only as a last option.

Employees in the UK already face some of the most restrictive union laws in Europe, with the government increasingly trying to limit their rights at every turn.

Anyone with a legitimate dispute should be able to exercise their rights without worrying they’ll be treated unfairly. The Supreme Court can bring the UK back in line with international law and offer much-needed protection to UK workers.”

HODGE JONES & ALLEN

Manisha Rajah (left) has has joined Hodge Jones & Allen as a Partner in the family law department. She joins family lawyer Jacqueline Major who is recognised by Legal 500 and profiled in Spear’s Directory for high net worth individual work.

Formerly at Axiom Stone and Machins, Raja has extensive experience in dealing with matrimonial finance, children and domestic abuse matters. This includes providing advice on a range of financial issues and on matters concerning children, including re-location and other sensitive areas. She has a reputation for a ‘calm, yet forensic approach, to achieve positive outcomes for her clients’. She is a member and active supporter of Resolution.

“I am very pleased to welcome Manisha and Rebecca to our team,” said Jacqueline Major, Partner, Head of Family Law. “The breadth of expertise that both bring will allow us to extend our offering with a free half hour initial consultation to provide those who contact us with an understanding of their options and the potential next steps of their journey.”

MAYO WYNNE BARBER

Marwa Hadi-Barnes has joined  Mayo Wynne Baxter as a partner in its family team based mostly at their Crawley and Storrington hubs. She will also develop a new family law presence in Horsham

Formerly with Lewis Denley and DMH Stallard, Hadi-Barnes has more than 16 years’ post-qualified experience covering the full range of family law including divorce, financial and children matters.

“I was keen to remain in the Sussex area and Mayo Wynne Baxter’s reputation in the region is unrivalled,” said Hadi-Barnes. “Working for a firm with significant growth plans was important to me and having the opportunity to develop our team’s presence in Horsham is particularly exciting.

“Throughout my career, I have worked collaboratively with Mayo Wynne Baxter on family law cases and felt their style mirrored mine in terms of the way they approach their matters, and the fit felt right. I am looking forward to working with the team moving forward, drawing on my local reputation and existing referrer network.”