Edward Fennell’s Legal Diary – Edition 20

Thursday August 6 2020 Lunchtime publication Edition 20

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

SHORT THOUGHT FOR THE WEEK

The past few months have not been brilliant for the reputation of the legal profession. In particular the recently-released official report on the Russian influence on the British political and business establishment highlighted the extensive connivance of City lawyers – knowingly or unknowingly – in facilitating dodgy Russian deals in the UK and the wider world.

But whatever the failings of large corporate firms the past week has highlighted also the adoption of the moral high ground by individuals. Especially striking this week has been the example of Jonathan Taylor, formerly an in-house lawyer at SBM Offshore, who found himself arrested in Croatia – probably at the behest of the Monaco authorities – having blown the whistle on senior colleagues for paying bribes. Asked about the price he was paying for having done the right thing, he replied, “I am unemployable in my industry. There is a difference between the right thing and the best thing. It was definitely the best thing to do.”

Meanwhile, just to prove that some lawyers are not entirely focused on their bank balances, news is out that from now on the partners at the virtual law firm Aria Grace Law, founded by former Norton Rose Fulbright lawyer Lindsay Healy, will be diverting a large part of their profits to a nominated charity. The first organisation to benefit is Great Ormond Street hospital which is expected to collar £200,000 in the current year. A good deed in a naughty world for sure.

LEGAL DIARY for the week

MARKS & CLERK TO TAKE ON THE COUNTERFEITERS

With the shift to online retail prompted by the C-virus pandemic leading to more counterfeit goods being sold over the internet, top IP firm Marks & Clerk has announced the creation of a specialist anti-counterfeiting team to fight the trade.

It is believed that the counterfeit market even in 2016 was worth well over£13bn with ICT products alone accounting for £2.5bn . “Trade in counterfeit goods is one of the most rapidly expanding economic crimes around the world and is having a devastating economic effect with an estimated 27million articles seized in the EU in 2018,“ says John Ferdinand, partner at Marks & Clerk .

As one of the best-known and longest standing experts in this field the firm has now decided to consolidate its expertise into one multi-sector team in response to the increasing scope, magnitude and sophistication of the counterfeiters. The team’s focus will span customs and law enforcement, and cover online counterfeiting across healthcare, pharmaceuticals, ICT, fashion, cosmetics, automotive, media and entertainment, and toys. 

Sectors where UK intellectual property rights are particularly targeted, in terms of absolute value of trade, include electronic, electrical equipment and optical products, machinery and domestic appliances, and motor vehicles and motorcycles. This results in the loss of 60,000 jobs each year. Research suggests that more than half of the goods sold were bought by people who knew they were fakes.

For further information on Marks & Clerk’s services visit www.marks-clerk.com

CONSTRUCTION CASE CARRIES GRENFELL IMPLICATIONS

The UK Technology and Construction Court has confirmed this week in the case of RG Securities (No.2) v Maskell (concerning combustible cladding) that where material information relevant to bringing a claim has been concealed, time does not start to run until the concealment has been discovered. In practical terms this means that the ‘limitation clock’ under the Limitation Act 1980 goes back to zero – and this could have considerable ramifications for the Grenfell Tower case.

“Evidence about what occurred on the refurbishment works at Grenfell Tower is only slowly becoming known following the commencement of this second stage of the Grenfell inquiry,” says WFW Construction Partner Barry Hembling. “Only this week for example, we heard about exchanges in the context of Rydon seeking planning permission in May 2014 to switch the zinc cladding that had originally been specified to aluminium composite material in order to save money. Given the timescales involved, there is a real risk that when all the facts become clear about what occurred as part of the Grenfell Tower contract and refurbishment works, civil claims could be time barred. Many would consider this to be a scandal as it would absolve those who might otherwise be culpable.

“The decision in RG Securities (No.2) v Maskell seeks to address that risk. It is therefore hugely significant in the context of the civil disputes which will inevitably arise once the inquiry has reported. The decision confirms that the time bar for bringing civil claims is reset in cases where material information that is relevant to deciding whether or not to bring a claim has been concealed.”

Small comfort maybe for those impatient for justice – but at least it suggest that justice might be forthcoming in the end.

HERBERT SMITH FREEHILLS AWARDED CAMPAIGN MEDAL

This weekHerbert Smith Freehills has announced its ‘Silver Award’ from the Ministry of Defence as part of the Government’s Defence Employer Recognition Scheme. The citation is for the firm’s “outstanding support for our armed forces” including by ensuring that members of staff are educated about the issues facing defence personnel and their families. As part of its commitment the firm also allows the provision of 10 days additional leave for training exercises by members of the military reserve – double that required for the Silver Award.

A key aspect of the firm’s involvement is the way it has built in military-friendly features to its recruitment processes. As Haig Tyler, Chief Information Officer at Herbert Smith Freehills and a former RAF Flight Lieutenant, commented, “The transition from a military to civilian career can be difficult for some individuals but no member of the armed forces community should be face disadvantage for wanting to pursue an alternative career. That is why we are proud to have built on our previous commitments to the armed forces and honoured to be amongst the latest cohort of organisations to achieve this level of recognition.”

 The Employer Recognition Scheme was launched in 2014 by then Prime Minister, David Cameron, to recognise employer support for the wider principles of the Defence Armed Forces Covenant. The award is for five years and is based on an assessment against eight different criteria. For more see the Armed Forces Covenant.

IRWIN MITCHELL PACKS DOWN FOR ENGLAND RUGBY

Rugby clubs around the country are still weighing up when they can resume bashing each other about but at least when they resume they can be reassured that they have professional legal support on the touchline. The game has always seemed to be overburdened by its complex legalistic rule-book so it is appropriate that this week England Rugby has agreed a deal with Irwin Mitchell. This means that the sports-friendly law firm (which is already the Official Legal Partner for England Rugby) can take over the provision of its legal helpline and online legal document services for its 1,500 member clubs. “We’re delighted to announce that from August we’ll be stepping up our support as official legal partner when we launch our legal and tax helpline and document services,” said Alex Lloyd, head of the contact centre at Irwin Mitchell. “Sports clubs are facing a difficult and demanding situation at the moment – so the extra support we can provide could prove critical to some.”

In what might be called a ‘whistle-to-whistle’ service the firm will be on call to offer legal and financial advice 24/7, 365 days a year. Meanwhile a secure Online Legal Support portal will also give those clubs access on-demand legal document templates such as contracts and GDPR notices.

Somewhat ironically the C-Virus shut down of rugby has given plenty of time to bed down the new system and test it out through a series of virtual events where 750 people from the rugby community have accessed advice on topics including furloughing and holding virtual AGMs. The firm is also piloting a legal health-check service with several clubs with the aim of rolling the programme out wider over the coming months.

P.S. Meanwhile today Irwin Mitchell lawyers Claire Petricca-Riding and Nicola Gooch punted into touch the Governments’ proposal for re-inventing the planning system.”To date every attempt to simplify the planning system has only served to make it more complicated. It will be interesting to see if this is the package of reforms that finally breaks that trend. We are however doubtful of how simple a system can be when it will only apply to England. Planning and the environment are devolved matters.  As such, cross-border developments are now likely to become more complex as Wales and Scotland look for forge their own way in these areas.”

ARTWORK OF THE WEEK

– DECHERT (London and New York)

At Dechert it is said that art is about more than filling wall space—it is the heart and soul of the firm’s real estate. “We wanted people to feel the vigor when they walked in the door, ” says the firm’s EMEA facilities director Steve House.

That is why Leora Armstrong’s ‘Green Field’, created for the firm in 2017, greets visitors to the firm’s office in London. Inspired by the Scottish west coast, the dramatic landscape of her childhood, Armstrong plays with a palette she sees in all our surroundings. “I want to understand the energy of colour and the lines that edge it,” she explains.

Today Dechert has a wide-reaching art strategy. It collects, adding steadily to its 765-work patrimony. It commissions, giving voice to artists across the world. It selects, choosing dynamic, individual pieces in sync with the firm’s entrepreneurial culture. And it cultivates, using art to reflect the identity of location and maintaining it at the centre of the firm’s very being.

In New York over 130 curated pieces now line the walls of the firm’s Sixth Avenueo offices. James Surls’ Falling Flowers, a wood-and-steel colossus finished in 2008, dominates the center. Surls sculpted his mesmerizing masterwork specifically for the space, seeking first to draw the viewer forward, then descend through clouds of hand-hewn petals cascading freely down a shimmering, three-floor staircase. “I had written poems about flowers on garden walls, falling over the walls and hanging down,” says Surls. “I wanted to create something that covered the whole space and yet somehow also fell through it.”

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