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

30 August 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: BIT TIGHT ON TIME?

“We think that flexible working is actually good for productivity,” has said Baroness Smith of Malvern, the Minster for Skills speaking to LBC. “What we’re talking about there is the type of flexible working that enables you to use compressed hours, so perhaps instead of working eight hours a day for five days, you work ten hours a day for four days.”

Interesting idea. Not particularly radical, though, for the legal sector where the possibility of working ‘ten hours a day’ has been around for a long time. And not just for ‘four days’ but for five, six or seven days a week. Now, that’s total flexibility for you

And as for ‘compressed hours’, well, lawyers have long been able to squeeze 90 chargeable minutes out of anyone else’s normal hour. So if the Government wants to understand how flexibility is good for productivity they should talk to a lawyer. Or maybe, with a barrister as Prime Minister, they already have.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– Welsh Lawyers Go Large

– Fostering UK-UAE Collaboration Legally in Healthcare

– More than a hICOugh at the Labour Party

– Re-boot Your Career Ambitions

+ CONTRIBUTED ARTICLES OF THE WEEK

A Perplexing Family Court Case Exposes Challenges of Litigants in Person and the Limits of the System’s Investigative Powers argues Marilyn Bell

The Implications of the ASA’s ban of ads for nutrition brands Zoe and Huel featuring Dragons’ Den star Steven Bartlett by Ryan Cushley-Spendiff

+ LEGAL COMMENT OF THE WEEK

on extending the remit of the ICC, anticipating taxing changes in the Chancellor’s Autumn statement and the NEXT equal pay case

LEGAL DIARY OF THE WEEK

Welsh Lawyers Go Large

Two charities LawCare (the mental health charity for the legal sector) and Prostate Cancer UK stand to benefit from the efforts of a pair of Directors at North Wales law firm Gamlins Law getting high this week.

The two men – Ron Davison, Managing Director and fellow director Dafydd Roberts (pictured left) – are part of a team of ten aiming to reach 5895m (19,340ft) above sea level as they endeavour to climb Mount Kilimanjaro within seven days. They pair have already gained plenty of climbing experience with a training schedule embracing the major Welsh summits. But Kilimanjaro stands more than five times higher than even the largest Welsh mountain (Yr Wyddfa at 1,085 metres) so this is a giant step for the Welsh legal profession.

“We’re looking forward to flying out to Tanzania later this week to join the expedition,” said Davison. “We’ve trained as much as possible around work. We’re lucky that we live and work in beautiful North Wales on the doorstep of the Eryri National Park.We’re also proud to be raising money for two extremely deserving causes. LawCare does a huge amount promoting and supporting better mental health in the legal sector, something that we are equally passionate about at Gamlins. We’re also delighted to be fundraising for Prostate Cancer UK. My father died from prostate cancer, so it is a cause that means a lot to me personally.”

Roberts, Head of the firm’s Criminal Law team, added, “We’ve been trying to climb as many peaks as we can at weekends and evenings to ensure we are ready for what is going to be an incredible challenge. We’ve been hugely grateful to everyone who has donated to our Just Giving page so far including friends, family, colleagues and clients.We’ve already exceeded our initial target of £2,000 and hope to add to this over the coming weeks.”

Elizabeth Rimmer, CEO of LawCare, said: “Ron and Dafydd’s climb up Kilimanjaro is an amazing effort to support LawCare.”

You can donate to the Kilimanjaro fundraiser here – https://www.justgiving.com/crowdfunding/dafydd-roberts-1?utm_term=3Ge7JNMr9

Fostering UK-UAE Collaboration Legally in Healthcare

Meanwhile, also doing good work in the cancer field is  Gerard Hanratty, Head of Health and Life Sciences at Browne Jacobson who has been involved in the launch of a report that aims to improve cancer care via greater collaboration between the United Arab Emirates and United Kingdom.

Opportunities for collaboration between the UK and UAE in cancer care provides a series of recommendations for developing new prevention, screening and diagnostics strategies that can help tackle cancer on a collaborative basis. Unsurprisingly these days it is Artificial intelligence (AI) and other emerging technologies which are being enrolled to play a key part in improving the accuracy and speed of diagnostics, as well as the efficacy of treatment.

Building on his knowledge of public law and regulatory issues in health and life sciences, Hanratty became involved by offering advice on how to overcome the legal hurdles involved in the exchange of personal data. This is of crucial importance in the development of joint research projects and clinical trials, as well as the adoption of innovative technologies such as AI and genomics in cancer care.

“An ambition for the firm is to support clients who are working at the forefront of society’s biggest issues,” said Hanratty, “and there are fewer such issues [more important] than tackling cancer given that there were more than 19 million new diagnoses globally in 2020. 

“The growing trading relationship between the UAE and UK is providing significant investment into health and life sciences, offering enormous opportunities for greater collaboration in cancer care research and development.

“With many regulatory challenges to overcome, however, this report provides some strong recommendations for how our countries can develop a comprehensive and flexible framework for co-operation and alignment in data sharing and governance.”

The paper suggests a series of potential areas and projects for collaboration and innovation. These include the development of a UAE-UK health data hub, the harmonisation of ethical and technical guidelines for AI and genomics, and the facilitation of cross-border clinical trials and research partnerships.

To read the Opportunities for collaboration between the UK and UAE in cancer care report, click here.

More than a hICOugh at the Labour Party

As we are now discovering, ’Things Can Only get Better’ is not on the new Prime Minister’s Top Ten playlist – in fact, it is rather the opposite.

And certainly for the Prime Minster’s Labour Party to be facing a reprimand from the Information Commission’s Office (ICO) just a few week’s after taking over the running of the government is definitely not a good look. If anything defines ‘Things are going to get worse before they get any better’ this is it.

The ICO’s beef with the ruling Party is that it has repeatedly failed to respond to people who asked what personal information the Party held on them (known as a subject access request SAR).  

The figures are pretty bald. By November 2022, the Labour Party had received 352 SARs that required a response. In fact, four out of five of those had not received a response within the maximum compulsory time limit of three months, and over half (56%) were significantly delayed by more than one year. 

As the ICO points out, under data protection law, people have the right to ask an organisation if it is using or storing their personal information and receive a copy of any personal information held. They also have the right to ask an organisation to ensure that their personal information is up-to-date and accurate, or in certain cases, deleted. 

As an example of the chaotic management of their own system it transpired that the Labour Party had a ‘privacy inbox’ which had not been monitored from as far back as November 2021. The inbox contained approximately 646 additional SARs and approximately 597 requests for personal information to be deleted. None of the requests had been responded to by the Labour Party. The lawyers are going to have a field day with this one.

Re-Boot Your Career Ambitions?

As this weird Summer comes to an end and people return to some kind of routine normality the thoughts of younger in-house lawyers will, no doubt, be turning to their careers and wondering what they can aspire to next.

So a networking evening for in-house Junior to Mid-level lawyers with a focus on “How to Measure and Communicate Your Value” scheduled for the evening of Tuesday 15 October 2024 at RPC’s offices overlooking St Katharine Docks might hold some attractions.

Brought together by the Centre for Legal Leadership the pitch is that ‘This is a fantastic opportunity to learn practical strategies for showcasing the impact of your work on your organisation. Whether it’s demonstrating how you manage risks, contribute to business growth, or align your legal expertise with company goals, this event will provide insights on effectively communicating your value to key stakeholders.  Join us for an evening of networking, thought-provoking discussions, and actionable takeaways that will help you elevate your role within your team.’

So if the idea of ‘some wonderful speakers whilst sharing drinks and canapes’ is appealing you can find out more by contacting admin@legalleadership.co.uk

CONTRIBUTED ARTICLES OF THE WEEK

A Perplexing Family Court Case Exposes Challenges of Litigants in Person and the Limits of the System’s Investigative Powers, argues Marilyn Bell

A recent High Court ruling highlights the challenges faced by family courts when litigants appear without legal representation. The case, involving an ex-husband’s claims of hidden children and an ex-wife’s denial of ever being pregnant, exemplifies the difficulties arising when litigants in person must navigate complex legal systems without professional guidance.

Initially, the wife had legal representation, but both parties were self-represented by the case’s final stages. Lady Emma Arbuthnot, who presided over the case, emphasized with the difficulty in investigating such disputes without lawyers, noting that the Family Court “cannot act as an investigator.” Despite this limitation, the judge managed to handle the case by reviewing extensive documentation, recordings, and oral evidence.

Without legal advice, crucial information was either underexplored or missed. Medical records indicated no evidence of pregnancy, yet testimonies and recordings implied otherwise. A critical point—whether the alleged twins were with the wife’s brothers—was not fully explored because the husband did not summon them as witnesses. This lack of formal legal structure left both parties struggling to present their cases effectively.

This case is part of the Family Court Reporting Pilot, which aims to increase transparency by making selected judgments public. By shedding light on these cases, the pilot seeks to spark discussions on systemic improvements, particularly the need for greater legal support for litigants in person.

The case underscores the need for reform in how family courts manage self-represented litigants. Legal professionals argue that more robust systems are necessary to assist individuals representing themselves, ensuring courts can more effectively investigate and resolve complex cases. It is likely that the absence of legal representation in this case significantly prolonged the proceedings, consuming already stretched court resources. Reform efforts could focus on ensuring access to legal advice, as the burden of assisting litigants often otherwise shifts to the judge.

Mediation, often suggested as a solution in family disputes, would likely have been ineffective in this case, as the judgment runs to 71 pages, reflecting the depth and complexity of the issues involved. This unusual case has revealed how difficult it can be to navigate intricate legal matters without proper representation, straining the investigative capacities of the family courts.

Thanks to the Family Court Reporting Pilot, cases like this are gaining public attention, fostering discussions on the reforms needed to better support litigants and enhance the fairness of the family court system. The detailed judgments provide a clearer understanding of the complexities involved in such cases.

Marilyn Bell is Head of Family Law at SA Law

The Implications of the ASA’s ban of ads for nutrition brands Zoe and Huel featuring Dragons’ Den star Steven Bartlett

by Ryan Cushley-Spendiff

The Advertising Standards Authority’s (ASA) response to the Huel and Zoe adverts shows the legal pitfalls of businesses making assumptions about what is ‘obvious’. Both companies had their Facebook adverts banned by the regulatory body after receiving complaints that celebrity Steven Bartlett is present and endorsing the companies’ products. The adverts fell foul of the same rule: the omission of material information that the consumer needed to make an informed decision. The information in question is that Bartlett is a director of Huel and an investor within Zoe. Starring in the advert, both companies claimed that it would be obvious that he has a commercial relationship with them, no different than other celebrity endorsement..

The thorn of the issue here is that Bartlett had a financial interest in the success of the products advertised, rather than a discrete relationship. When a celebrity makes an endorsement, they are not (ordinarily) effected by the success or failure of the product. As a director and an investor, there is a separate motivation to promote the product outside of contractual obligations. The ASA accepted that while an ordinary consumer would be able to say there was some form of commercial relationship due to his presence, it was this additional motivation that the consumer needed to make an informed decision.

This might seem overkill; it comes at a time when the ASA have begun to ‘bear their teeth’ and apply high standards to the advertising codes. Recently, this has been within “greenwashing” adverts, however, both Huel and Zoe show that the ASA is carrying the same attitude to other forms of misleading advertising.

What legal sanctions can follow from a breach of these codes? Omission of material facts can lead to fines or even prosecution. However, in low-severity cases such as this, the banning of the advert in its current form will often be enough, and so far the ASA has not seen fit to use further sanctions.. We would only expect more serious sanctions if Huel or Zoe attempt to run the same advert, ignoring the ruling of the ASA.

This ruling shows not only the increasingly strict attitude of the ASA, but that it is highly unwise for commercial entities to use the “isn’t it obvious” defence. A key raison d’être for the additional protections consumers are given is the inherent information asymmetry that exists between businesses and consumers in the commercial world. To put this into more simple words, what is obvious to a business may not be to the consumer.

Dr Ryan Cushley-Spendiff, is a lecturer at Nottingham Law School

LEGAL COMMENT OF THE WEEK

TOPIC: The proposal that the International Criminal Court’s Rome Statute should be amended so joint criminal enterprise is incorporated into Article 25(3)(a) to include criminal acts through another person via Joint Criminal Enterprise

COMMENT BY: Dr Klejda Mulaj, University of Exeter

“Victims of mass atrocities need restorative justice – as well as crimes being punished through criminal processes – so that they can get recognition and start to move on from their ordeal. This can only happen if those responsible – both directly and indirectly – who have been involved in planning, organisation and enablement of mass atrocities, are punished.

“Joint criminal enterprise is a useful weapon for prosecutors as it helps them establish facts and events, and it is important, also, for victims. Now we need ICC member states to support its use.

“Societies cannot heal if the truth of their ordeal is not ascertained, impunity is not challenged, and a modicum of accountability is not achieved. Criminal justice has the potential to offer an important service to this end.”

TOPIC: Speeding up business sales ahead of the Autumn Budget

COMMENT BY: Kim Klahn, partner in the corporate team. Clarke Willmott LLP

“Among the various alternatives being considered is the abolition of Business Asset Disposal Relief (BADR) (formerly known as Entrepreneurs’ Relief).

“Business owners selling privately-owned firms typically qualify for BADR which allows them to pay a significantly reduced CGT rate of 10% on qualifying business disposals.

“We are currently seeing a rush to finalise deals ahead of the Budget on October 30, driven by speculation BADR could be reduced or abolished, leading to higher tax liabilities for business sellers.

“If the government does make changes, they could come into effect immediately or at the start of the next tax year, potentially affecting financial outcomes.”

“This is proving a strong motivator for accelerating the completion of business sales before any changes come into being.”

TOPIC: The NEXT employment case on equal pay between retail staff and warehouse workers

COMMENT BY: Beverley Sunderland, Partner, Crossland Employment Solicitors. 

 “This is an employment tribunal decision and is not binding on any other tribunal, who will always consider each equal pay case based on its facts.

It is a useful reminder of the fact that equal pay is not just about men and women doing the same jobs,  but whether men and women are doing work of equal value- so roles rated as equivalent by a job evaluation study, or work that’s not similar but is equivalent in terms of effort, skill, and decision-making.

There have been many equal pay claims brought, particularly in the public sector, where those working in two seemingly different roles, have successfully argued that it is work of equal value. Here the employees argued that working in the shops was work of equal value to those in the warehouse and that there was no ‘material factor’ which allowed Next to distinguish the pay rates.”

WE hope that you have found this edition of the LEGAL DIARY interesting (and even useful). If so, please circulate it to colleagues.

In any case, please continue sending your diary-type stories, legal comment and insights plus latest appointments to fennell.edward@yahoo.com

And best wishes to the UK Paralympians in the week ahead