Edward Fennell’s Legal Diary – Edition 51

Friday 26 March 2021 Edition 51

Diary news, commentary, insights, appointments and

e-vents from the legal world

SHORT THOUGHT FOR THE WEEK

– BRISTOL FASHION

One week ago exactly – in last Friday’s LEGAL DIARY – we were celebrating Bristol’s position as a major hub for legal tech. Ed Boal, Director & Head of Legal Ops at Stephenson Law commented that, “If there is any region outside London where LegalTech should spring up and prosper it is in Bristol …… with the ecosystem we have.” Within 48 hours the Bristol ecosystem then showcased its other great strength as the city with the most innovative approach to legal street campaigning. While last year Bristolians gave us an exhibition performance in statue-rolling, last Sunday they offered an object lesson in how to do over your local nick.

Actually it was a healthy reminder that for all the legaltech in the world there are still people who prefer to hammer out legal matters face-to-face. So, the Government’s ‘Police, Crime, Sentencing and Courts Bill’ has provided an opportunity for people to come together in the fresh air for frank exchanges about legislative change – although that might not stick as a plea for leniency in the courts in the months ahead.

The Legaldiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

– Brown Rudnick Goes Urban

– Til Divorce Do Us Part

– Musical Cheers

– Muddled headline

– Speaking of Prince Harry

– Being Responsible in Brum

+ LEGAL COMMENTS OF THE WEEK

– ECHR: NOT QUITE WHAT IT SEEMS?

– PLAIN TALK ON TAX AVOIDANCE

– UNHAPPY FAMILIES

– COMING HOME: SUPREME COURT CLARIFIES PARENTS’ RIGHTS

– SLEEP-IN WORKERS

+ APPOINTMENTS OF THE WEEK

– Satra Sampson-Arokium at Dechert

– Jordan Owen at DWF

+E-VENTS ETC.

THE LEGAL DIARY OF THE WEEK

Brown Rudnick Goes Urban

At last an inclusive education programme from a law firm which looks as if its got some real ‘meat’ (or tofu for you veggies) rather than just window dressing.

Brown Rudnick has signed up with Brunel University to support its Urban Scholars Programme which operates ‘Saturday school’ for local pupils ‘who come from disadvantaged backgrounds’. But this is not just a day- or week-long exercise to tick the CSR box. It is a three year commitment including mentoring and work placements to deliver what they call ‘sustained support’.

“The aim of the programme is to inspire kids and introduce them to careers that they didn’t think were accessible to them and to provide them with skills and confidence,” says the firm. It provides ‘enriched learning experiences’ for pupils aged 12 -18 from across 10 of London’s 32 Boroughs. Significantly this is the first funding and strategic collaboration between Brunel University USP and a law firm. “If there is any hope of tackling the lack of diversity in the legal profession, we have to start with young people at school,” said Neil Micklethwaite, Managing Partner of Brown Rudnick LLP in London. “USP supports bright students from underprivileged backgrounds by providing them with role models, as well as helping them with their confidence, academic, and reasoning skills. Crucially, this programme introduces students to career opportunities that they might not otherwise have pursued.”

Abdur-Razzaq Ahmed, an Associate of Brown Rudnick’s Litigation & Arbitration Practice Group, was involved in the first session. “We see a lot of opportunity to pass on what we know and have learned during the course of our careers, and to draw on our network to help you develop yourselves and your skills,” he said. “With that guidance, we hope that you have the real, unwavering self-belief that you can pursue any career that you want to.” Including, one would trust, not just in the law. (After all we can’t all be lawyers, can we?).

Til Divorce Do Us Part?

The perennial war between the sexes has turned particularly vicious of late (with both domestic violence remedy applications and orders reaching record numbers – see more below) so maybe there was more despair than hope in the comment by Hannah Gumbrill-Ward, Solicitor at Winckworth Sherwood, that, “Looking forward to the year ahead we predict that this decreasing trend [ the number of divorce petitions falling] will reverse and that there will be an increase in both divorces and financial remedy applications as the world starts to open up again. People will no longer be locked down together in toxic or abusive relationships and will be able to start rebuilding their lives independently as the world rebuilds and finds its new normal.”

Alternatively, might some couples have re-connected with each other during lock-down and decided that, actually, they quite like each other? Or is that hopelessly romantic?

Musical Cheers

We all feel sorry for the battered music industry right now with no-one actually paying for anything and pirates ripping off the talent. But in the age of lawtech, hope is at hand as explained by ‘PRS for Music’ which reports this week on the success of its Member Anti-Piracy System (MAPS). Apparently, in the battle against digital music piracy, MAPS uses ‘web-crawling technology’ to detect and report infringements. Thanks to MAPS, 76% of dodgy URLs have been removed with non-compliant sites being directly referred to the Police Intellectual Property Crime Unit’s ‘Operation Creative’. “We are pleased that MAPS has allowed us to protect the value of our members’ music,” said Simon Bourn, Associate General Counsel, PRS for Music. “It has led to the demise of hundreds of illegitimate services.” If only it could also knock out whole decades of dire music (starting with the 1990s) all would be well.

Muddled Headline

My apologies to Jacqui Lazare of Clarke Willmott for completely misinterpreting the headline to her announcement this week that WILLS HOLD KEY TO FAMILY BUSINESS SUCCESSION. Given the current national preoccupation with everything regal I assumed she meant that, post-Elizabeth II, Prince William must succeed to the throne – rather than his Matmite-y Dad – to ensure the monarchy (‘the firm, the family business’) survives.

Actually, once I had got into the body of the story, it was something much more serious. “Many families with a business are now using discretionary trusts to ensure that family members receive their inheritance rather than the taxman. Instead of leaving exempt assets in a will to a spouse outright or to a life interest trust the assets are left to a discretionary trust with chosen beneficiaries.” Prince Harry, at least, should take note.

Speaking of Prince Harry

Hotfoot from yesterday’s panel discussion on ‘How to best support the mental health of your legal team’, chaired by Chris Parsons of Herbert Smith Freehills and organised in conjunction with legal search agency Major, Lindsey & Africa, Lisa Owens, Managing Director at ML&A reported on some of the key take-aways.

“The frank conversations between our leading GC panellists showed that business models can no longer simply be based on hours in the office – workforces have proven they can work anywhere, and successfully,” she said. “Companies and in-house legal teams must learn lessons about the benefits of flexible working for mental wellbeing and avoid a return to a culture of presenteeism this year.”

“After [yesterday’s] session” she continued, “I feel encouraged that the mental health conversation in law is clearly progressing, with companies and in-house legal teams recognising that they have to go far beyond paying lip service – but there is always more work to be done. Now is the time to ensure tangible progress is made in breaking down the stigma around mental health in the legal industry.”

Panel members included  Maria Hemberg (Volvo Cars), Marko Kerschen (Wallgreens Boots Alliance) and Dr Beatrice Vos (Elanco EMEA) – a nice bunch of clients to have on tap.

Being Responsible in Brum

If you are ahead of the curve you already know that there is a ‘data science skills gap’ in the legal profession. (And if it had passed you by just blame the lack of a water-cooler culture in recent months). Anyway, Birmingham University is intent on closing that gap with its new one-year MSc programme in ‘Responsible Data Science’ which combines data science with ‘the capacity to understand and critically reflect upon the social, ethical, and political implications of data-driven applications’. Impressive, eh?

One of the first law firms to catch the wave is Eversheds Sutherland which will be providing paid internships for students on the course, helping to create case studies for the course itself, and offering support to students around wellbeing and pastoral care. “With our partners, we are developing the next generation of lawyers, who understand both the fundamentals of data science and the core legal, ethical and regulatory implications in real-world settings,” said the University’s Professor Karen Yeung, Interdisciplinary Professorial Fellow in Law, Ethics and Informatics. Jobs for the future for sure? Well probably – the course does claim to lead to ‘new and yet-to-be-created roles’.

LEGAL COMMENTS OF THE WEEK

ECHR: NOT QUITE WHAT IT SEEMS?

You don’t have to be an avid ‘Leaver’ to suspect that something is off kiltre in Europe at the moment. Never mind the European Commission, now it is the European Court of Human Rights (ECHR) which is under scrutiny for suspending access to its files and decisions. Commentators are now expressing concern about the Court’s stance on open justice and impartiality prevention measures.

One of the key critics is Professor Jurij Toplak (University of Maribor, Slovenia, and Visiting Professor at Fordham Law School, New York) who suggest that the ECHR is actually behaving illegally. Here are some of his observations:

“After allowing access to its single-judge decisions for decades and after sending applications out for several months, the Court’s termination of access in March 2021 due to the pandemic seems unjustified. The pandemic has not worsened in March 2021. No court should be allowed to hide its decisions from the public.The files are public documents. This means that the ECHR has to allow the public to see them. In no other circumstances in the past has the court suspended its services.

I believe there is something else at play. It may be a tendency to limit the transparency. But this move, however, is extreme. It is also illegal.The Convention makes it clear that the public should have access to files. Several political leaders worldwide have justified their dubious decisions with pandemic. I would have never expected that from the ECHR.

To protect its integrity, the Court needs rules and safeguards that prevent the staff from acting arbitrarily when responding to access information requests. It is high time for European lawyers to raise their voices against dubious case management practices and secrecy of judicial decisions and files.”

Over to you?

PLAIN TALK ON TAX AVOIDANCE

The Government is launching (yet another ) consultation on how it might “clamp down on promoters of tax avoidance” as part of its perpetual aspiration to improve Britain’s tax system.

All of which prompted James Austen, Tax Law Partner at Collyer Bristow LLP to comment that, “The reality is that such promoters of tax avoidance schemes. are now few and far between and those remaining in the market are normally based outside the UK, which presents obvious difficulties in taking effective enforcement action against them.” (So good luck with that one).

Added to which “HMRC has published rather curious discussion documents, which contain details of how it uses data received via the various international tax transparency and reporting schemes (such as CRS and FATCA).  These contain consultation questions intended “to inform future policy measures, but they contain no firm proposals about improving taxpayer compliance.” (In other words, gestures but no action].

And when it comes to tackling disguised remuneration tax avoidance and off-payroll working rules: “Both disguised remuneration and off-payroll working are topical.  Both are clearly still on HMRC’s radar, though no new measures specifically targeting them are announced in today’s command paper, which will be a relief to those affected.” (In other words, a big kick to that familiar can down the same old road).

UNHAPPY FAMILIES

The publication of Family Court Statistics Quarterly: October to December 2020 revealed that the number of domestic violence remedy order applications increased by 19% compared to the equivalent quarter in 2019, while the number of orders made increased by 20% over the same period. Here’s what some high profile family lawyers had to say about it.

 Nick Manners, Partner at Payne Hicks Beach: 

“The most concerning feature of the latest statistics is the huge increase in domestic violence cases on last year. Alarm bells should be ringing in Whitehall and this toxic by-product of lockdown must be addressed as a priority, not just in the Courts, but also with early intervention to protect the most vulnerable.

The pandemic has hit a justice system which was already creaking and brought it to its knees. Cases take far too long to complete. The time it takes for divorcing couples to get through the process is increasing at an alarming rate, preventing couples (and indeed any children involved) from achieving closure, allowing them to move on with their lives. I have seen this in my own practice, where often the only thing which prevents couples from moving on is the appallingly slow time it takes to actually obtain a divorce.”

Toby Yerburgh, Partner and Head of Family Law at Collyer Bristow:

“As predicted, lockdown has led to an increase (5%) in the number of divorce cases started in the last quarter of 2020.  This is not, though, quite the catastrophic rise predicted by some, with many couples probably holding off from divorce proceedings in the hope of  reassessing their relationships once some form of post-lockdown normality is established.

Charmaine Hast, Head of Family at Wedlake Bell, comments:

 “The MoJ Quarterly Family Court Statistics for the period October 2020 to December 2020 provides an extraordinary insight into the emotional burden that has been placed on the population by Covid. Interestingly the final orders of divorce were down 54% for the same period last year, which prima facie may indicate that extreme behaviour is on the increase and the public may be having second thoughts about divorce during financially challenging periods like the present pandemic. 

The question has to be asked whether the new “normal” will mean that the prolific divorce rate will slow down because parties are pulling together during difficult times?”

Victoria Sterritt, Partner at Seddons

 “Laments of the destructive impact of covid 19 on relationships and family life have not been fake news but sadly are all too real and obvious when one looks at the statistics. …… The reasons for divorce and separation remain the same but the decision making somewhat accelerated by circumstances.  The fact the court system and the process is overwhelmed leading to delays only serve to prolong the pain.  Families and individuals have been thrown together in a vacuum, and held with a vice like grip, with the removal of practically all release outlets and this has led to frustration often manifesting in anger and the need for protection from (sic) the court system.  Family life has faced unparalleled pressures and so as a result the family court has likewise,”

When and where, you might ask, does this all end? In an age of mindfulness shouldn’t we all be doing a bit better than this?

COMING HOME: SUPREME COURT CLARIFIES PARENTS’ RIGHTS

A big case in the Supreme Court at the end of last week clarified the rights and wrongs of feuding parents taking children to other jurisdictions and claiming asylum as a way of securing their claim.

“Under the Hague Convention, our Courts have an obligation to return children who have been unlawfully removed from their home country.” commented Carolina Marín Pedreño, Partner at Dawson Cornwell, the solicitor for the father involved in the case.  

“With borders closing and the world in pandemic-related chaos, it is more important than ever that we have clarity on this issue. With many families agreeing to move children to other countries during their homeschooling in the pandemic, we can sadly expect to see more and more wrongful retention and international abduction cases as children in the days to come.”

“This landmark decision sets out the approach that must be followed in cases where there has been the wrongful removal or retention of children and where asylum and immigration issues arise.  It is a very welcome decision, in which the UK Supreme Court has emphasised the commitment of the UK to the terms of the 1980 Hague Convention. It offers some hope to left-behind parents. Should new protocols and an expedited process be put in place, parents could be looking at weeks instead of years for the return of their abducted children. A damaging and destructive legal loophole could be closed.”

SLEEP-IN WORKERS

With so much else news-worthy this week the decision by the courts on payments to ‘sleep-in’ workers (notably in the care sector) has been quickly forgotten – apart, that is, from those directly affected. But here’s the last word from Neill Thomas, employment lawyer at Thomas Mansfield Solicitors, who represented John Shannon, the claimant in the case:

“I was very disappointed with the Supreme Court’s decision on John Shannon’s case. The Court literally interpreted an outdated law which stipulates that workers who are permitted to sleep at or near their place of work should only receive the National Minimum Wage if they perform their duties while being awake.

“The Court has also swept away the previous decisions in several other cases similar to John’s.

“It is the court’s role to interpret the legislation in accordance with what Parliament intended. But did the government really want for the worst paid workers to receive so little? Is it right that some of the poorest people in the society are not entitled to the National Minimum Wage?

“If the government wants to rectify the issue, it will need to change the law. Unfortunately, it is too late for John. But there should be hope for a large number of people across Britain trapped in the cycle of poverty. If only the Low Pay Commission could make a new set of suggestions to Parliament.”

Clearly the ball is now in the LPC’s court.

APPOINTMENTS OF THE WEEK

Satra Sampson-Arokium has been appointed by Dechert LLP into an expanded role as the firm’s first Chief Diversity, Equity and Inclusion Officer. Ms. Sampson-Arokium works closely with Dechert’s Management Committee and Diversity and Inclusion Committee in setting and implementing the firm’s strategic plans and priorities for diversity and inclusion.

In her expanded role, Ms. Sampson-Arokium will have an increased focus on client partnership and collaboration to further diversity, equity and inclusion (DEI) goals. “Since joining Dechert in 2017 as our Director of Diversity and Inclusion, Satra has made a significant contribution to the culture and trajectory of our firm,” said Andrew Levander, Chair of Dechert’s Policy Committee. “This appointment emphasizes that diversity, equity and inclusion are at the core of Dechert’s business strategy.”

Jordan Owen has been appointed by DWF to lead its Global Entity Management service. She joins from from KPMG, where she was a senior manager in the Global Entity Management team. Previously she was at Eversheds for five years. 

DWF’s Global Entity Management service allows clients to outsource the day-to-day management of their global entity portfolio, with compliance with local laws and regulations and price certainty. Commenting on Owen’s appointment, Jason Ford, CEO of DWF Connected Services division, said, “Jordan will help establish our new global entity management service, working alongside our existing UK team, and further expand our range of regulatory and compliance services.  With Jordan on board, we will be looking to rapidly expand the team so that we can quickly help fulfil our client needs.”

LEGAL E-VENTS (webinars and the rest)  

Corporate Counsel and Compliance Exchange 2021

We intend to be back next week (no plans to travel to Bristol) so do send your stories, news, insights and comments to

fennell.edward@yahoo.com

And please pass this on to your friends and colleagues. Thank you.