Edward Fennell’s LEGAL DIARY

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

14 June 2024

Editorial contact: fennell.edward@yahoo.com

Just a very small change?

Like the non-appearance of the British Summer this year there are no rabbits coming out of hats in the Labour Manifesto – and yesterday our future Prime Minister took some pride in that non-revelation.

So is that promise of Change going to be more in terms of style than substance?

Our Legal Comment section below is full of frustration at the limited ambition of the (probably) new government. Anyone involved in the justice system in particular must despair at the sense that nothing is going to change. Right now the road ahead may look like the familiar road to nowhere whose only merit is that it has no rabbits to run over.

The LegalDiarist

In this edition

Harriet Harman KC Takes on Another Mission Impossible?

Duty of Care

Another Accountant ventures into the Law

Now and For NEDever

No Time To Forget Tour de Law

on the party political manifestos including cohabitation, the Industrial Strategy Council, non-doms, AI and online security and the failures within the |Justice system

W Legal and Quadrant Chambers

Harriet Harman KC Takes on Another Mission Impossible?


Do you have to be a bit of a bruiser to be a barrister in this country? The recent televising of the forensic investigation of the Post Office scandal has had many viewers cheering at the blunt interrogation of what were perceived to be the bad guys in the story. But transposed into different cases and different witnesses the manner in which people were interrogated could be seen as intimidatory.

And that brings us to the question of whether the confrontational style which is the hallmark of many of our barristers can then spill over into the way that barristers act among themselves. After all, a recent report by the Bar Council revealed that that 44% of respondents had experienced or witnessed bullying, harassment or discrimination in the previous two years.

So, bring in a politician – albeit a KC to boot – to try to sort it out. Harriet Harman KC, the distinguished Labour front bencher and the longest-ever continuously serving female Member of Parliament,has now been appointed to lead an independent review of the culture at the bar. As the Bar Council puts it, The report found these inappropriate behaviours were a widespread problem which , in part are a consequence of the culture at the Bar and the external pressures on the justice system.”

Harman’s review will take evidence from a wide range of sources and meet with members of the Bar across all circuits. It will consider the impact of these behaviours, the efficacy of current measures to counter this problem, reporting mechanisms and support services. Most importantly, it is emphasized, it will identify solutions. Barbara Mills KC will be Chair of the Bar in 2025 when the review reports. She commented, “The Bar is not alone in needing to tackle bullying and harassment, but there are Bar-specific reasons and impacts, and there will be Bar-specific solutions. I look forward to taking forward the review’s recommendations.” Easier said than done, one suspects.

Duty of Care

Being a lawyer can be stressful enough. Being a carer as well can make life almost impossible. So it’s no great surprise that more than four out of five lawyers in this position find life a very tricky juggling act.

This is something that RPC (Reynolds Porter Chamberlain) has now addresse by publishing jointly with Next 100 Years and LawCare the outcomes of their carers audit in a new report ‘Putting Carers on the Map’ which highlights the unique challenges faced by carers in the legal profession.

“Being a carer is rewarding, but it often pulls individuals away from the careers they’ve worked hard to build,” says Rachel Pears, Head of Responsible Business at RPC. “Balancing a demanding legal career with care-giving responsibilities requires firms to foster inclusive and supportive cultures. By implementing policies that address the unpredictable and emotional nature of caring, legal professionals can thrive in their careers while fulfilling their care-giving roles, receiving the support they need to succeed in both areas.”

The survey reveals that that 57% of respondents believe their caring role negatively impacts their career progression, and 54% say it affects their work more generally.  “Carers shouldn’t be afraid to take advantage of their employers’ support,” adds Pears. “The reason any firm provides a carers policy is because they care. Anyone using such policies shouldn’t fear judgement.”

However, access to employer support is by no means available to everyone with 48% of respondents saying that they had to take annual leave because their firm didn’t offer alternative carer support. Clearly there is still a long way to go.

Another Accountant ventures into the Law

It’s not unusual for accountancy firms to want to spread their girth across into the law. A couple of decades ago it was tried with somewhat catastrophic results but more recently there has been greater success. Predominately that has been with larger firms. Now though Sumer, which is one of the UK’s leading mid-market accountancy practices acting for small to medium-sized enterprises, has announced it is going to give it a go with the launch of Sumer Law.

Initially this will will provide legal services to Sumer’s SME client base by focusing on corporate, commercial, and employment advice. The aim is to complement the established services including audit, tax, outsourced finance, corporate finance, and insolvency.

Running the team will be James Kearns, Head of Legal Services, who already has specialist knowledge of SMEs’ legal requirements. His expertise includes share sales, equity investments, corporate reconstruction, shareholder agreements, EMI option schemes, and wider commercial contracts. Rhiannon Davies will join to run the employment practice.

Echoing what many senior accountants have said before him Warren Mead, Chief Executive Officer of Sumer, said, “We’ve identified that many of our clients would prefer to go to a one-stop shop for business services. We’re now able to offer this through Sumer Law, providing instant access to joined-up legal and financial guidance, regardless of location.”

Meanwhile Kearns added, “ At the moment, joined-up and SME-focused professional advice can be hard to access. That’s why we feel that Sumer Law working within, and complementing the services of, the broader Sumer group, is such a winning proposition.”

Now and For NEDever

A generation ago the idea of a law firm having a Non-Executive Director (NED) would have seemed laughable now it is de rigeur. The latest member to join the legal NED club is Matt Symonds who has been appointed by Howard Kennedy.

Interestingly Martha Lane Fox – now Baroness Lane-Fox of Soho – the founder of Lastminute.com and a doyenne of the NEDS was interviewed on BBC Radio 4 earlier this week about what it is exactly that NEDS do. Being on the board of M&S as a NED Lane-Fox made the point that she did not tell the company how to manage retail but she was there to inspire a spirit of entrepreneurialism in the business.

So what is it that Symonds might do for Howard Kennedy? “At Howard Kennedy, our Non-Executive Director (NED) provides a commercial perspective on the firm’s operations, enhancing its business focus,” says the firm. Meanwhile, in very practical terms, NEDs ‘act as an independent oversight member of the remuneration committee.’

In short Symonds offers, perhaps, a wider range of experience than a lawyer would possess notably in areas such as growth, strategy, profitability, and industry dynamics. In Symonds’ case he can draw on having been Partner, Director, and Senior Advisor at Bain & Co – where he was the Head of the UK Financial Services Practice – and also having been a co-Founder and Partner at executive coaching firm Altair. On top of that he serves on the Board of Advisors at global investigations form Nardello & Co. And before joining Howard Kennedy, he served Chetwood Financial as their Chair of the Remuneration Committee. So, yes, some pretty extensive business and life experience.

No Time to Forget Tour de Law

Just a reminder that Breast Cancer Now is calling on law firms and chambers to sign up for  their 12th annual Tour De Law 2024  static bike challenge to raise funds for world class research and support. Participants can book more than one slot each, encouraging competition between colleagues as well as against rival participants. The team with the highest combined distance and fundraising totals will be crowned the Tour de Law winners and become custodians of the prized Tour de Law trophy. Save the date and help raise vital funds for Breast Cancer Now. Register at tourdelaw.breastcancernow.org or email tourdelaw@breastcancernow.org

TOPIC: The Labour Manifesto for the General Election

Specifically: The proposed Industrial Strategy Council

COMMENT BY: Julia Marlow, Partner at Hogan Lovells:

 “The manifesto builds on policy announcements that have already been made in the run-up to its launch, but there are details that will be important for business. One example is a commitment to put the Industrial Strategy Council on a statutory footing. While this may sound insignificant at first, in fact it represents a move to give it legal powers and duties, as well as to make it more accountable. This underlines Labour’s commitment to business engagement. Businesses are – and need to be – engaging on the issues that matter to them most, and they need to be doing that now.  In the immediate post-election period, attention will shift to the legislative programme, and the incoming Government’s options for using existing powers and non-legislative means to get some quick wins.”

Specifically: On AI and online safety

COMMENT BY: Emma Woollcott, Partner and Head of the Reputation Protection and Crisis Management group, Mishcon de Reya

“Labour has pledged to regulate ‘the handful of companies developing the most powerful AI models’, in contrast with the Conservatives’ vaguer manifesto statement that they are ‘leading global work on AI safety’. It has also promised to ban the creation of sexually explicit deepfakes, echoing the Government proposal that did not survive the Parliamentary wash-up period – the Conservatives have also promised to revive the proposal. This will no doubt be broadly welcomed as an important step in preventing such material before it has a chance to spread.”

TOPIC: The failures within the Justice system

COMMENT BY: Julian Hayes, senior partner, Berris Law

The Conservatives failed even to acknowledge that there is a crisis in our justice system let alone providing any ‘plan’ (as Rishi Sunak likes to keep saying) to address the very pressing issues there.

Meanwhile, I am concerned at the ‘one eyed’ view taken by the Labour proposals. They have failed to acknowledge that the crisis in the criminal justice system is as much dependent on defence lawyers as prosecutors. It is all very well for Labour to say that they will employ more prosecutors to get rid of the backlog in the criminal courts, however, they have to address the continuing loss of defence lawyers to represent defendants facing prosecutions. Without enough defence practitioners (both solicitor and barristers) it will be impossible for the backlog to be cleared. They have failed to undertake that commensurate resources will be put into criminal defence as they have with prosecutors. It is perverse and absurd.”

TOPIC: The failure to mention the rights of cohabitees in the Labour manifesto (despite the Shadow Attorney General, Emily Thornberry, committing to re-forming the law on cohabiting couples at the Labour Party conference last October).

COMMENT BY: Nick Gova, head of family at Spector Constant & Williams

“It was disappointing that there was no mention of improving the rights of cohabiting couples in either the Labour or Conservative manifestos.

“Cohabiting couples are the fastest growing family type in the country, but they are completely ignored. Currently, the law only caters for those who are married or in civil partnerships. In the event the relationship between a cohabiting couple breaks down, there is very little protection available. There is no such thing as a ‘common law marriage’.

“This is largely prevalent where one individual is the homemaker, sacrificing a career or income, or where there has only been a religious wedding ceremony in this country.  If a party have children together, claims can be pursued via Schedule 1 of the Children Act 1989, which provides financial provision for children and it is specific to their needs. Alternatively, matters would need to be pursued via the Civil Court under the Trusts of Land and Appointment of Trustees Act 1996. Without any agreements in place, the financially weaker individual loses out significantly.

“Unfortunately, cohabitation rights are needed to protect victims of domestic and prolonged abuse. The sad reality is that abusers take advantage of this loophole. They know their victims cannot afford to leave the relationship and would have no financial independence or ability to rebuild their lives if they were to do so.

“There is a need to bring relationships into the 21st century. Hopefully whoever forms the UK government after 4 July will bring this back onto the agenda.”

COMMENT BY: Gabrielle Read-Thomas, Senior Associate at Stowe Family Law

I am disappointed that cohabitation reform has been excluded from the Labour Party’s Manifesto after Emily Thornberry’s expression of commitment to reviewing the current (concerning lack of) structure around cohabitation in October 2023.

Family practitioners have been pushing for cohabitation reform for many years, with very little success. Currently, although they are the fastest growing family type in the UK, cohabitees have minimal legal rights.

Despite this, there is still a widespread belief in the mythical common law marriage, with 46% of respondents to a survey we conducted at Stowe Family Law believing that cohabitees have the same rights as married couples.

Matters are in desperate need of change as individuals, particularly women, are being left extremely vulnerable if their relationship breaks down or if their partner passes away without leaving a Will, as there are no protective measures regarding finances in place.

The public is backing calls for reform. 92% of respondents to our survey said that they believed cohabitees should have legal protections. However, any such legal structures should be approached with caution, with robust structures and criteria in place, potentially with an opt-in or opt-out system (86% agreeing with opt-in) to minimise the risk of financial vulnerability.

The next Government needs to carefully consider the impact of not prioritising cohabitation reform, particularly on women who are left with no protections. Unfortunately, change still seems a long way off.”

TOPIC: The Liberal Democrats’ position

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

“The Lib Dems’ manifesto promise to increase the protections granted to cohabiting couples lacks substance.

“It is disappointing that the language is vague and has not moved on since their stated position in 2019. This is despite cohabiting couples becoming the fastest-growing family type in Britain today, with 3.6 million households. I would have hoped for a clearer statement of intent and the removal of the word ‘limited’ to show a commitment to protecting children and families from the hardship and inequality that often follows parental separation.

“The myth of common-law husband and wife protections that, in reality, do not exist needs to be busted. We need to see all parties making a clear statement of intent and commitment to parliamentary time to tackle this issue.”

COMMENT BY: Gabrielle Read-Thomas, Senior Associate at Stowe Family Law

I am disappointed that cohabitation reform has been excluded from the Labour Party’s Manifesto after Emily Thornberry’s expression of commitment to reviewing the current (concerning lack of) structure around cohabitation in October 2023.

Family practitioners have been pushing for cohabitation reform for many years , with very little success. Currently, although they are the fastest growing family type in the UK, cohabitees have minimal legal rights.

Despite this, there is still a widespread belief in the mythical common law marriage, with 46% of respondents to a survey we conducted at Stowe Family Law believing that cohabitees have the same rights as married couples.

Matters are in desperate need of change as individuals, particularly women, are being left extremely vulnerable if their relationship breaks down or if their partner passes away without leaving a Will, as there are no protective measures regarding finances in place.

The public is backing calls for reform. 92% of respondents to our survey said that they believed cohabitees should have legal protections. However, any such legal structures should be approached with caution, with robust structures and criteria in place, potentially with an opt-in or opt-out system (86% agreeing with opt-in) to minimise the risk of financial vulnerability.

The next Government needs to carefully consider the impact of not prioritising cohabitation reform, particularly on women who are left with no protections. Unfortunately, change still seems a long way off.”

TOPIC: Labour’s plan to raise £5.2 billion from closing the non-dom loophole and cracking down on tax avoidance

COMMENT BY: Basil Dixon, Partner at Payne Hicks Beach 

“Whilst it was perhaps surprising that no mention of the non-dom changes was made in the Conservative manifesto, this clear statement of intent on non-doms and offshore trusts and inheritance tax in the Labour manifesto comes as no surprise at all. Whilst we do not know what the detail will look like, with a Labour win looking increasingly certain, non-doms now need to be assessing their affairs and considering their options. Whoever is in power, we would very much hope to see a considered and careful implementation of changes to the non-dom regime which would give taxpayers who have legitimately and reasonably relied on the rules a chance to unwind structures and incentivise them and their wealth to stay in the UK. No one thinks the current rules are perfect, but if there is to be change they must be replaced by something better and above all the new system must encourage investment in the UK and not drive it away. Our concern is that this will not be achieved and a mass exodus of wealth from the UK over the next year or so looks like a real risk. Indeed, it has already started.”

W LEGAL

Dr Victoria McCloud, formerly  a Master in the Kings Bench Division of the High Court of England and Wales, who is shortly to join the board of WhistleblowersUK is also joining W Legal, the boutique firm in central London. Specialising in defence, aerospace, funds, and digital assets, the firm will now have three former judges in its team. “I am extremely pleased to be joining W Legal, a firm truly dedicated to pursuing justice for its clients. I look forward to working with them and the wider W Legal team to solve some of the most exciting, emerging and challenging legal issues.”

Nigel Kushner, CEO at W Legal commented,“Victoria is an exceptional legal mind that we are proud to have joined our team. Victoria has her client’s well-being at the heart of her work and her experience will be momentous to our firm. Victoria’s appointment also underscores our commitment to diversity in the legal profession. We couldn’t be prouder to bring her on board.” 

QUADRANT CHAMBERS

Sarah Longden has been appointed as the new Chief Operating Officer at Quadrant Chambers. Having joined chambers in 2017 as Business Development Director following experience elsewhere in the legal sector she has been heavily immersed in marketing the set for some time. “It is a joy to work with the exceptional talent at Quadrant in serving the needs of our clients,” said Longden whose appointment creates an almost all-female leadership team at Quadrant. She will now work closely with Poonam Melwani KC, Head of Quadrant, Ruth Hosking, Deputy Head of Chambers and Laura Sutton, Financial Controller to provide strategic leadership for Quadrant’s next phase of development.

“ I am delighted with the appointment of Sarah Longden as our next COO, she was an excellent candidate in an impressive field,” said Poonam Melwani KC. “Sarah’s strengths, loyalty and passion for the role and for Chambers and our clients made her the perfect choice and I look forward to working with her on our next chapter.”