Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
28 June 2024
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: What does it mean to be a lawyer?
A turf war seems to be breaking out across the legal profession as to the respective status and reach of solicitors and chartered legal executives. What used to be a simple institutional structure has now become byzantine in its complexity giving plenty of opportunity to game the system to advance organisational ambitions.
The roots of the current row are in historical perceptions of class and gender. Trying to throw of this legacy is proving difficult especially as there are valid concerns about the need to maintain high professional standards. How to create a more open, accessible and equal profession while not compromising quality. It is a question of our time.
The Legal Diarist
In this edition
+ LEGAL DIARY OF THE WEEK
Rule of Law: What’s it all about?
The Proof’s in the Courts
‘Ello, ‘ello, nothing to see here then – honest
Bar None
+ LEGAL COMMENT OF THE WEEK
on the fight back by music publishers against AI, doctors fearful of whistle-blowing and the release of Julian Assange
+ APPOINTMENTS OF THE WEEK
at REVIEWED AND CLEARED
LEGAL DIARY OF THE WEEK
Rule of Law: What’s it all about?
The City of London Solicitors’ Company (CLSC) came up with an interesting topic this year for its annual essay prize for trainees at City law firms. “How would you describe, to a non-lawyer, what the rule of law is, why it’s important, and what part City solicitors play in upholding it?”
Worthy not just of an essay topic, one suspects, but also a briefing paper for some of the less experienced candidates in the current General Election (of whom clearly there are plenty).
Contestants were required to submit a 500-word piece (perfect length for a manifesto!) followed, for those who made the cut, by an interview with Sarah de Gay, Master of the CLSC, and Charlotte Wanendeya, Vice-Chair of the City of London Law Society Training Committee.
So who was the talented winner?
Remarkably, for the first time ever, two entrants shared the crown. Emily Louise from Hogan Lovells affirmed the role of City solicitors in promoting the rule of law through legal counsel, community engagement, and commitment to diversity and inclusion. Meanwhile Oliver Jones from Mayer Brown highlighted the role of the rule of law in maintaining democratic governance, social order, and a stable economy.
“I am delighted to have been awarded this prize,” said Emily Louise. “The focus on upholding the rule of law, especially as it relates to both equal access and equality before the law, is an important topic to me and so it was a privilege to be able to reflect on this through my submission.”
Well done to them both. (The two essays will be featured in the upcoming edition of CitySolicitor magazine).
The Proof’s in the Courts
Just staying briefly with the CLSC prize winner Oliver Jones who emphasised in his essay the ability of independent courts to prevent abuse of power.
On cue a prime example of this came in the past week when the Supreme Court ruled unanimously against the Home Secretary in a landmark libel claim brought by prominent Muslim community leader, Chowdhury Mueen-Uddin
Like all these matters it is a complicated case but relates to the publication by the Home Office in 2019 of allegations of complicity by Mueen-Uddin in war crimes and crimes against humanity during the Bangladesh war of independence in 1971. Mueen-Uddin, has always vigorously denied the allegations as being entirely false and politically motivated. However he had failed to make his case in the lower courts and it took the Supreme Court to allow in full his appeal in his libel action against the Home Secretary.
So a good result for Chowdhury Mueen-Uddin’s lawyers Carter-Ruck and 5RB but also an endorsement of Oliver Jones’ point about the role which adherence to ethical guidelines (such as honesty, integrity and independence) plays when it comes to upholding the rule of law.
‘Ello, ‘ello, nothing to see here then – honest
And here’s another case which embodies much the same principles
Jonathan Fisher KC, Tom Forster KC and Anita Clifford have successfully represented the World Uyghur Congress in The Court of Appeal (Civil Division) in a challenge brought against the National Crime Agency’s decision not to investigate suspected breaches of the Proceeds of Crime Act OCA linked to cotton imports from Xinjiang, China.
Now obviously this is a very hot political potato. As the lawyers pointed out, the case is important because the decision cuts new ground by demonstrating how the money laundering offences can be applied to commercial transactions involving the supply chain where there is suspected criminal conduct afoot – in this instance, the use of slave labour. According to the law team involved, “The decision provides important clarification on the requirements for a proceeds of crime investigation and the bounds of the adequate consideration exemption.”
What is depressing though about the case is that, as Fisher & Co. put it, there were “surprising errors made by the NCA in their understanding of the money laundering laws they are statutorily obliged to enforce.”
How can this be, one wonders? Maybe significant is that for the first time the decision records in a judicial context an awareness of the plight of the Uyghur community in China. It will be telling how a new government tackles these tricky questions,
Watch recording from The Court of Appeal ( Civil) here: https://www.youtube.com/watch?v=m-BNR4YAdzY
Bar None
Hoping to modernise the Bar is nothing new. But maybe The Barrister Group (TBG) is going about it in the right way – and using a vehicle which would be pretty familiar to many solicitors. TBG is described as a ‘tech-enabled legal services business and the umbrella group for well-known legal brands’. These include The Barrister Group chambers and the Barrister Connect direct access platform. “TBG chambers already has around 250 barristers on its books and is on course to become the largest chambers in the country, putting technology at the heart of its reimagining of barristers’ services,” they explain..
As a sign of things to come TBG has now appointed Emily Foges as its first Chief Operating Officer. Foges comes with some powerful credentials having been previously the CEO of legal AI pioneer Luminance and lead partner for legal managed services at Deloitte. Led by Foges, Luminance grew from a small start-up to a $100 million company in just over three years based on using AI to automate the generation, negotiation and analysis of contracts for legal teams. Meanwhile thanks to an investment from LDC, part of Lloyds Banking Group, TBG has recently celebrated the one year anniversary of becoming the first private equity backed legal services business at the Bar,
“The word ‘disruptor’ can be over-used but TBG has really earned the title,” says Foges. “The potential to build something really special on that strong foundation is huge. It’s early days but an exciting time. We have ambitious plans to scale up both in terms of the number of barristers and the instructions they are able to take, while at the same time making sure that we maximise tech to make sure we’re as efficient as we can possibly be.”
Harry Hodgkin, chief executive and co-founder of TBG, commented, “Attracting someone of Emily’s calibre is a significant coup. She has the experience and expertise to help implement the exciting plans we have in the pipeline. Hiring a COO is very forward thinking at the Bar but that’s what TBG is all about – doing things differently and challenging what has been the status quo for too long in order to build a Bar that’s fit for the future.”
Stand back and watch what happens next – it should be fun.
LEGAL COMMENT OF THE WEEK
TOPIC: The move by some of the world’s biggest record companies to sue the AI song generators Suno and Udio for copyright infringement
COMMENT BY: Jonathan Coote, music and AI lawyer at Bray & Krais:
“These are the first major cases brought by the recorded music industry in relation to AI.
“There are two major questions. First, did the AI tools train on copyrighted recordings? The labels have presented compelling evidence showing the similarity between outputs and original works, including digital watermarks such as Jason Derulo’s infamous vocal trade mark. Notably, Suno’s initial response doesn’t dispute that it trained on copyright works.
“Second, does it constitute fair use? This is a US defence to copyright infringement which is far more flexible than in the UK and include considerations such as whether the use was “transformative”. This could potentially become a philosophical question about the creative role of AI encompassing its economic and social impact. The cases will likely be one of a number across the creative industries that are eventually decided by a Supreme Court decision.
“Whilst many have been expecting this for some time, it will have an immediate impact, as investors in AI music tools will be even more concerned with ensuring that any training has been conducted legally.”
COMMENT BY: Paddy Gardiner, Head of the Disputes group, Simkins LLP
“It is not at all surprising that the record labels are seeking to protect their rights against AI services – they have a long history of challenging the legitimacy of new platforms as they emerge and seek to take advantage of and monetise their copyright works.
“The key battleground here is likely to be on the extent to which AI services can legitimately rely on fair use principles as a defence. If they fail, the damages payable under US law are likely to threaten their future existence – and embolden the labels to pursue other AI services.”
TOPIC: The release of Julian Assange
COMMENT BY: Shaul Brazil, partner and extradition expert, BCL Solicitors
“A commonly deployed strategy in US extradition cases is to pursue a robust defence for as long as possible; not necessarily in order to ultimately resist extradition successfully, but to put the requested person in the best possible position to negotiate a favourable plea agreement.
“Whether or not that was the strategy adopted by Assange, it appears to be the outcome he achieved, albeit with a price paid in the years he spent in prison.”
TOPIC: The results of a BMA survey which shows that many doctors are afraid to blow the whistle on patient safety concerns due to fear of retribution
COMMENT BY: Hina Belitz, employment partner, Excello Law
“Having worked with the British Medical Journal (BMJ) in their investigation into widespread sexual misconduct in the NHS last year, I have seen first-hand the problems created by an environment in which harms to patients and staff are not taken seriously.
“The law on whistleblowing protects workers from being dismissed or subjected to a detriment for making a protected disclosure. This protection is key in healthcare environments where patients’ lives are at stake, but unfortunately it is all too common to see such employers acting unlawfully for fear of reputational damage. One shocking case from 2022 involved the dismissal of an NHS nurse for gross misconduct after she had raised a number of concerns leading up to and following the death of a patient. She was eventually vindicated and awarded almost £500,000 in compensation.
“The desire to close ranks and take action against whistleblowers rather than addressing the problem can backfire severely. While reputational damage is a concern for all employers, the NHS context is unique in that public trust in the organisation is essential for it to perform its function effectively, and whistleblowing scandals severely undermine that trust. It should also be noted that NHS trusts pursuing legal action against whistleblowers will be using public funds to do so, and, should employees be successful in making a claim against the NHS for dismissal or detriment in connection with whistleblowing, the potential compensation awardable is not subject to a cap as it is in other employment claims, raising real questions about resource allocation in a struggling healthcare system.
“Unfortunately, whistleblowing in the NHS has been an ongoing discussion for years, and it is unsurprising that employees do not feel confident raising their voice. The NHS’ inability to deal properly with safety concerns, whether they meet the criteria for whistleblowing or not, was demonstrated in the BMJ’s revelations last year of widespread sexual misconduct within the organisation, in which huge numbers of allegations of sexual harassment and assault between staff were not properly investigated, in another example of the poor employment law practices of an organisation that prioritises sweeping such matters under the carpet. It is clear huge organisational change is needed to ensure whistleblowers and those disclosing discrimination and assault are adequately protected.”
APPOINTMENTS OF THE WEEK
REVIEWED AND CLEARED
Izzy Abidi has joined the Business Affairs team at media law specialists Reviewed and Cleared (R&C) where she is expected to play a major role in developing R&C’s presence in MENA. Previously at Netflix where she led dealmaking for MENA’s original fiction and non-fiction content Abidi has a substantial career in media law with both the BBC and the Independent. She also spent time with Eversheds Sutherland as well as various in-house roles focusing on licensing, distribution, development, brand partnerships and co-productions.
While at Orbit Showtime Network, Abidi was part of the legal team responsible for exclusive MENA broadcast deals with Disney and HBO, working on titles and franchises including Game of Thrones, WWE and James Bond. She also launched Freshly Ground Sounds, MENA’s first original live music business, and now runs Freshly Ground Stories, a global network that helps writers, producers and content creators
Also joining Reviewed and Cleared is Carolyn Levin who will lead for US legal advice, whether stand-alone or on co-productions and in co-publishing.
Levin has been practicing media law in New York for more than 30 years, focusing on First Amendment, media, publishing, and intellectual property law. She has wide-ranging experience in pre-publication legal review of content and editorial risk management, and has taught Media Law & Ethics at City University of New York’s Baruch College, Stony Brook University, Long Island University, and Pace University.
Before teaching, Levin served as the Vice-President and General Counsel of Ziff Davis Media and the Vice-President and General Counsel of Newsday. She is admitted to the bars of New York, Connecticut, and the District of Columbia and has also worked as an editor and reporter for a weekly community newspaper.
“With Izzy and Carolyn now among us, we’ve taken another significant step towards being able to help our clients internationally, across borders,” commented Alex Wade, the firm’s CEO. “We will continue to develop cross-border capabilities while also focusing on the growth of the Business Affairs and Employment teams and ensuring our clients always see us as their go-to lawyers. The pre-pub and pre-broadcast work with which R&C began its journey, more than 10 years ago, is as strong as ever. We continue to secure many new instructions, including new film work from our presence at the Cannes Film Festival and new podcast work from our sponsorship of The Podcast Show.”
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