Edward Fennell’s Legal Diary – Edition 26
Diary stories, comment and insights from the legal world
Friday 18 September 2020 Edition 26
SHORT THOUGHT FOR THE WEEK
Kingsley Napley is to be congratulated for its sponsorship and organisation of the annual LEGAL APPRENTICE competition which aims to promote awareness of the legal profession among young students and encourage more pupils from non-traditional backgrounds to consider a career in law.
This year, in keeping with the Covid crisis, the final was held by zoom rather than in grand surroundings in central London. Nonetheless the fact that it was held at all is a tribute to the adaptability of all involved and not least the winners, the team from The Tiffin Girls’ School (Kingston upon Thames).
How the legal profession will adapt to its new circumstances – socially, technologically and healthwise – remains to be seen but the increasing hiring of new entrants via an apprenticeship must be a part of the answer.
The LegalDiarist
THE LEGAL DIARY OF THE WEEK
CMS ASKS QUESTIONS OF GCs
The empowerment of General Counsel so that they can be seen to ‘deliver value’ to their organisations and not be seen only as an irritating cost is an on-going story. Law firm CMS has been doing its best to help out for more than a decade through the regular publication of reports produced in partnership with the European Company Lawyers Association (ECLA). ‘CREATING CONNECTIONS AND BRIDGING GAPS’ has just been published as the latest title in the series with the aim of upskilling GCs by focusing on how they can position themselves as ‘strategic advisors’.
“This has never been more important for GCs than during the COVID-19 pandemic, when in-house legal teams are required to deal with existential threats to their businesses and play leading positive roles within crisis response teams,” comments CMS. “The report considers how to build strategies to develop and succeed as a GC which can be applied to many of the new challenges posed by the coronavirus pandemic.”
Looking at issues such as ethics, credibility, value and communication the report sets up 101 questions and answers to provoke analysis of GCs’ own performance and pathways for further development. “The questions posed in this edition offer thoughtful and practical insights, to which GCs can return for consideration time and time again,” says Jonathan Warne, Head of the Litigation and Arbitration Team at CMS. “Whilst much of the report was prepared before the outbreak of COVID-19, the content is perhaps more relevant now. Businesses are expecting even more from their GCs and there will be great opportunities for GCs who are equipped to deliver more value.”
The ‘Creating connections and bridging gaps”’report is available here.
PENSION FUND GOING OFF THE RAILS
Things are going from bad to worse in the railway industry with the Covid crisis now being followed by a warning that a proposed major regulatory shake-up would blow a £15bn hole in its finances
“Introducing such wide ranging changes is a particular challenge at a time of significant economic flux,” said Rosalind Connor of ARC Pensions Law. “Any [possible] savings must be offset against the costs to schemes of adjusting to a new system of regulation.
“In terms of ensuring the effectiveness and cost efficiency of the regulatory regime, following a well-trodden path must surely be the best course of action. Continuing to use an effective and widely understood system allows trustees to focus time and money on new challenges, such as GMP equalisation, or on long neglected areas, such as data and benefit audits. It also gives trustees more time to focus on taking prudent steps to protect schemes from the ravages of the economic fallout from the ongoing coronavirus pandemic.”
WFH might mark the end of the great railway commuter era but deflating pensions will provide the concluding sound track.
RACKING UP THE TENSION
Events connected to the tiny state of RAK (Ras Al Khaimah) within the UAE seem to come more from the overactive mind of a thriller writer than the day-to-day world of business law – but, still, truth is stranger than fiction. Hence in the latest twist in the tale of the court battle between American aviation tycoon Farhad Azima and RAKIA (the RAK investment authority) the claim made by Mr Azima that agents acting for RAK had hacked his personal financial information(which was then published on the Dark Web) has been upheld in the Court of Appeal.
Witnesses for RAK had claimed that Mr Azima’s stolen data had been ‘innocently discovered by Google searches’ undertaken by a friend of Stuart Page, a private investigator who had been hired by the Ruler of RAK to monitor Mr Azima. However, the Deputy High Court Judge, Andrew Lenon QC, was not entirely convinced. “It would be a reasonable inference to draw from these incidents that Mr Page has access to agents with the capacity to hack emails” he said, adding that “Mr Page operates in a world of covert surveillance in which agents acquire confidential information unlawfully”. Consequently he rejected the ‘innocent discovery’ explanation in its entirety
A spokesperson for Mr Azima commented after the judgment. “We welcome this decision by the Court of Appeal. We are 100% confident of our position. New evidence continues to emerge which further demonstrates that RAKIA is responsible for the hacking of Mr Azima. We believe that they have been running a false case in front of the Court and we will request the reversal of the first instance Judgment with a finding that RAKIA was responsible for the hacking, or a full retrial.”
Mr Azima is represented by Tim Lord QC and Hugo Leith of Brick Court Chambers, instructed by Burlingtons Legal LLP.
QUOTE OF THE WEEK
‘Deplorable that any Government should display such contempt for the Rule of Law’
James Harper, LexisNexis UK
Maybe having responsibility for the strange world of Northern Irish politics has affected his mind but the Secretary of State for that benighted province has much to answer for in his comments about the Government countenancing breaking the law. While Whitehall is now rowing back (and forward or both) over its position, the controversial comments did at least stimulate a vociferous defence of the rule of law from the wider world. Here is some of what James Harper, Executive Sponsor of Rule of Law at LexisNexis UK, thepublisher of Erskine May and Halsbury Laws of England, had to say.
Now more than ever, we need to demand a greater observance to and respect for the core principles of the Rule of Law, supposedly the bedrock of democracy. The Rule of Law must prevail if economies are to prosper and nations to live in peace
The Rule of Law must be sacred, transcending everything. The statement “we will break the law” should never even be an option.
These are worrying developments and are part of a developing undercurrent of anti-lawyer rhetoric that will be hugely damaging to the legal profession. Examples can be seen in recent Home Office comments, labelling those representing asylum seekers as “activist lawyers” – lawyers who are representing individuals and protecting their rights, are instead blamed for preventing the rapid deportation of migrants. Elsewhere, an independent body has been set up to look at judicial review and consider whether the courts have too great an ability to review government action for its lawfulness – the suggestion being not that the Government is acting beyond its powers, but that the courts should stay clear of “politics”.
Back in the 17th century Parliament challenged the king‘s power. Now the politicians are challenging the courts. Will civil war follow?
QUICKIE DIVORCE? BEWARE THE SLIP-UPS
Marry in haste and repent at leisure was the old saw but the opposite might also apply – divorce in haste and repent for ever. While the Divorce, Dissolution and Separation Bill has widespread support politically and across society-at-large – and is likely to come into effect this time next year – concerns are now being expressed about the adverse implications of rushing into a divorce without thinking about the long term consequences.
In particular it is being suggested that quick, ‘DIY’ divorces might disproportionately prejudice women. “All too often a divorcing couple will obtain a divorce and stop there,” says Anna-Laura Lock, Senior Associate at Winckworth Sherwood. “Others might agree to an arrangement (formal or otherwise) that is not fair either at the time it is made or in the future. This predominantly impacts the financially weaker party and in a heterosexual relationship this is typically a woman, although it would apply to any partner who, for example, has stayed home to raise children.”
In cases where one party has significantly sacrificed their earnings, continues Lock, particularly when close to retirement, it is essential to obtain independent legal advice to understand what they are entitled to and what might be a fair division of finances post separation and divorce.” This might not be an easy exercise, as financial resources now have to be shared across two households.”
So while securing a roof-over-one’s-head might seem to be the over-riding priority initially this might not be an adequate long term solution. “There is nothing to suggest that ‘no-fault’ divorce is likely to result in an increase in unfair outcomes for women- this is not to say that there is not a problem,” concludes Lock. “As the statistics show, women are prejudiced by the current system and the new Bill offers no solution.”
DIVORCE ITALIAN STYLE
Looking for an unusual wedding gift in the age of lockdown? The Italian newspaper IL MESSAGGERO reports this week on a present given by a Neapolitan lawyer to a couple of newly-weds – a ‘divorce voucher’ to cover the legal expense of divorce if redeemed within three years of the nuptials. And if the marriage survives beyond that (petty modest) deadline then the voucher can be converted into ‘sound money’. Sounds good to me.
The LegalDiarist is operating from Italy for the next few weeks but please continue sending your diary news and comments to
fennell.edward@yahoo.com
…and the FINAL SHOT
The art of the ‘brass plate’ has not been lost to Italian lawyers. In the start of a new series here are some images of the entrances and exits of law firms in the Adriatic city of Senigallia where Machiavelli observed at first hand the political effectiveness of assassination – always a useful tool for a Senior Partner