Edward Fennell’s Legal Diary – Edition 29

Friday October 9 2020 Edition 29

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

SHORT THOUGHT OF THE WEEK

For once, I am happy to surrender this slot to the devastating observations by Amanda Pinto QC, Chair of the Bar, following the Prime Minister’s speech at the Conservative Party Conference. She comments:

“It is shocking and troubling that our own Prime Minister condones and extends attempts to politicise and attack lawyers for simply doing their job in the public interest. Lawyers – including those employed by the Government itself – are absolutely vital to the running of our grossly under-funded criminal justice system. Their professional duty is to their client and to the court, and not to play political games. 

“The proper application of the laws of this country is fundamental to the justice system and it is a lawyer’s task to set out the proper arguments to enable that to happen. Even the Home Secretary does not suggest that lawyers are hamstringing the criminal justice system.”

The incongruity of the country’s leading law-maker denouncing the rule of law and those who apply it is hard to fathom. But, I suppose, that merely reflects the very peculiar times in which we live.

The Legaldiarist

In this edition

+ LEGAL DIARY OF THE WEEK

+COURT REPORT OF THE WEEK

+ A WINNING FORMULA IN THE COURT OF APPEAL

+ COMMENT OF THE WEEK by MARK LUBBOCK, Brown Rudnick

+ DEVELOPMENTS IN DATA SURVEILLANCE AND THE THREAT FROM BREXIT

+ OFF THE WALL – ART GOES DIGITAL IN LAW FIRMS

LEGAL DIARY OF THE WEEK

SIGN UP TODAY, CYCLE ON MONDAY to raise funds to fight breast cancer

On this coming Monday 12 October, barristers and solicitors from across the UK will take to the saddle for the annual charity cycle race, Tour de Law, to raise vital funds for Breast Cancer Now’s world-class research and life-changing care.

So today is your last chance to sign up!

Teams, consisting of up to 10 cyclists, will set off at 6am on Monday (12 October) and race to clock up as many kilometres as they can over the week, ahead of the challenge closing at 6pm on Sunday (18 October) in a bid to beat the competition and be crowned Tour de Law Champions of 2020.

Your miles can be clocked up on road bikes, static bikes at home or in the gym, or even on Santander Cycles. Teams’ distance and fundraising progress will be tracked through Strava, which is linked to and will share updates on each team’s JustGiving page.

Simpson Thacher & Bartlett LLP, who took part in Tour de Law in 2019 and is a participant this year, commented:. “We took part in Tour de Law for the first time last year. It was a really fun event and created a great buzz. It got pretty competitive at times as different practice groups tried to better each other’s distances and we all tried to knock rival firms off of the top spot! I strongly urge others to take part and join in the fun while raising funds for a great cause!”

Since its inception in 2012, over £600,000 for Breast Cancer Now.

To participate in this fantastic event register your interest to join other legal professionals in taking on the Tour de Law challenge now at tourdelaw.breastcancernow.org.

For further information, please contact Rachel Finch, Community Fundraising Manager, at Breast Cancer Now on rachel.finch@breastcancernow.org or 020 7749 0892.  

CAN WE HAVE OUR MONEY BACK, PLEASE?

In these tough times the country is prepared to forgive the Government some mistaken judgements made in the heat of the crisis. But our patience is being stretched almost to breaking point in relation to the manifest vulnerability to fraud of the ‘Bounce Back’ loan scheme. And threats of prosecution won’t cut much ice in the cold hearts of the criminal.

 “The mistake the government made was not to put in place measures from the outset to prevent the scheme being exploited by fraudsters,” says  Amy Shaffron, senior associate at JMW Solicitors. “Their rush to launch the scheme means they have missed the opportunity to prevent fraud given the lack of eligibility requirements and evidence to get a loan. This has left it wide open for criminal organisations to take advantage of it.

 “It is likely that we will see the Government prosecuting a few cases as test cases but it will achieve little more than good optics so that they can be seen to be taking actions against fraudsters. The reality is there is very little to gain from a prosecution and especially for the tax payer. The average cost of a fraud prosecution of this type is around £40,000 plus the costs the defendant will seek in legal aid which will far exceed the amount defrauded in the first place.”

COOLEY LAWYER BECOMES RECORDER

Very unusually for a solicitor Laurence Harris, a lawyer with Cooley, has been appointed as a Recorder to sit on criminal cases in the Crown Courts. “Pro bono work and public service has always been important to me and I have been involved in it for some time,” he says. “Applying to become a Recorder was a natural extension of that and I am honoured to be appointed. It was a very attractive position as I thought it would be a challenging role where my skillset could add value, whilst enabling me to continue my daily responsibilities as partner at Cooley.”

Harris adds this responsibility to his role as Chairman of the Board of Trustees at the Access to Justice Foundation which he assumed as successor to Lord Goldsmith QC. back in the Summer. At that time he said “I am honoured and delighted to be succeeding Peter Goldsmith as chairman of the Foundation. He will be a very difficult act to follow; but at this critical time for the advice sector, I am hugely excited to be able to help lead the Foundation in its work, which, in these uncertain times, is more important than ever”.

In his Cooley capacity Harris is vice chair of the firm’s global litigation department. He has practiced in commercial litigation all his career and advises Governments, large corporates and high net worth individuals in complex commercial disputes. So he is a man of many parts!

HOW HAS THE C-VIRUS AFFECTED WOMEN IN LAW?

The ‘Next 100 years’ project is surveying how female lawyers have been impacted by the past seven months of lockdown, lock-up and log-off . See below their invitation to take part – but you ned to respond by Monday evening.

CONTENTIOUS INSOLVENCY EXPERT JOINS SIGNATURE LITIGATION AND WARNS ABOUT FUTURE OF ECONOMY

New recruit to Signature Litigation’s commercial and insolvency disputes team, Paul Brehony warns that he is ‘fearful’ about recent developments and the tenacious grip Covid continues to have on both society and the economy. “The expectation that this would be a temporary storm that otherwise viable businesses could weather with appropriate support is now fading,” he says. “We need a culture of consensus, particularly between businesses and their creditors, to get through this crisis, but the initial collectivism is starting to evaporate and is not helped by increasing distrust of government.”

With thirty years experience of complex, multi-jurisdictional cases at Stewarts and at PwC, Brehony reflects that the past ten years of his career has been spent dealing with fall-out from the financial crisis of 2009/10 (particularly the collapse of the Icelandic banks). As things stand, he anticipates that the 2020s and beyond may be dominated similarly by disputes linked to the Covid crisis. “There is, inevitably, going to be a long tail of disputes arising from corporate failures and the related pathology of director delinquency and fraud,” he says.

The upshot is that there is a lot of work to be done in the disputes and insolvency arenas – and Signature Litigation is the ideal place to do it. “Signature is a boutique firm but is unusual in having an international make-up and outlook with offices in Paris and Gibraltar,” he says. “And I also like its unique democratic ‘John Lewis’-style structure.”

Bucking the wider trend Signature has announced good results recently with an annual profit share of 17.2%, paid to all members of the firm as part of its fixed profit sharing model.

Kevin Munslow, CEO of Signature Litigation, commented: “Our FY20 results reflect strong performance across all areas of the Firm consistent with our long term goal of managed year on year growth. Whilst the impact of Covid-19 means that we enter the new financial year with a degree of caution, we nonetheless remain committed to building an environment that delivers on the aspirations of every member of the Firm and a culture where the fruits of success are shared with all our members without discretion or variation.”

A role model of consensus, maybe, for others to follow.

COURT REPORT OF THE WEEK

A WINNING FORMULA IN THE COURT OF APPEAL

The row over the legal ownership of Venezuelan gold (worth about £1.8 bn.) held by the Bank of England on behalf the Banco Central de Venezuela (BCV) took an important turn this week in the English Court of Appeal when a previous judgment delivered by Mr Justice Teare  was overturned. 

The case hinges on the question of who has the right to dispose of the gold on behalf of the Venezuelan people. Mr Justice Teare’s conclusion was that the UK Government’s disapproval of the Maduro regime and recognition, instead, of Juan Guaidó as “constitutional interim President of Venezuela” in February 2019 was conclusive. However this week the Court of Appeal disagreed and the case has now been remitted back to the Commercial Court. to determine who should be recognised as exercising the de facto powers of head of state and head of government in Venezuela. 

Behind the dispute is the aim of BCV to sell approximately €1bn of Venezuela’s foreign reserves held by the Bank of England and   transfer  the proceeds to the United Nations Development Programme to procure humanitarian aid, medicine and equipment. However the Bank of England has denied BCV access to the gold on the grounds that the regime of President Maduro is not legitimate.Iand  the UK Government’s limited recognition of Juan Guaidó as “constitutional interim President of Venezuela.”  

Acting for the BCV has been the London firm of Zaiwalla & Co headed by Sarosh Zaiwalla who, not for the first time, finds himself on the other side from the UK authorities. After a series of successes – notably in the Iranian Bank Mallat case – against the British Government Mr Zaiwalla is now the ‘go to’ lawyer for foreign businesses and governments who are in dispute with the big institutions.

Asked what is the secret of his success Sarosh Zaiwalla says, candidly, that what drives him is a strong sense of what is ‘fair and right’. In the case of the Nicolás Maduro’s regime he feels it is inconsistent for the UK authorities to single him out for special treatment while other Presidents of doubtful democratic credentials around the world are fully recognised.

“My approach is to start by asking what should be the right answer – morally and legally – to the problem and then use the law to achieve that answer. I aim to keep things simple and I believe that I do have a clear head for seeing what will work. The answer is not always immediately obvious but I reflect and I pray and in due course the solution appears”

Mr Zaiwalla goes on to say that in the BCV case he and his client are looking for a resolution as soon as possible. “That money is needed urgently in Venezuela to help ordinary people, the victims of Covid. This is not money going into the pockets of politicians. It is needed for services to the man and woman on the street.”

COMMENT OF THE WEEK

by MARK LUBBOCK, Brown Rudnick

DEVELOPMENTS IN DATA SURVEILLANCE AND THE THREAT FROM BREXIT

Earlier this week the Court of Justice of the EU issued a key decision on data surveillance. Here MARK LUBBOCK, data protection partner at Brown Rudnick comments on the significance of that decision and the recent judgement of the invalidation of the US/EU privacy shield in July, for the City and for businesses that share data.

 “This week’s judgment of the Court of Justice of the European Union and its recent judgment which ruled on the legitimacy of the US/EU privacy shield and the so-called standard contractual clauses (another method to facilitate the transfer of personal data) could have significant consequences for British commerce and industry and especially for the UK’s world leading financial services sector. “

 “Businesses and banks operating in the EU after 1^st January 2021 may not have an easily available mechanism to transfer personal data to the UK – this could, for example, mean that messaging networks used by banks and other financial institutions to send and receive information, such as money transfer instructions will not be able to operate through London. Such a result will be grist for the mill for those in the EU seeking to undermine London’s predominance as a global leader in financial services – which we know is an aim of the European Commission and  other EU bodies who seek to shift the centre of gravity of financial services from London to Mainland Europe.”

 “This is because any finding that, because of the Government’s powers in respect of bulk surveillance of electronic communications, UK national laws do not provide individuals with protection which matches that in the EU, would mean that the UK will, like the US, not be regarded as having adequate data protection laws and so will not be entitled to an adequacy finding by the European Commission – worse, companies will not be easily able to use the standard contractual clauses to enable free flows of personal data.  Any company that illegally transfers data would also be subject to potential litigation including enforcement action by regulators who have the right under GDPR to levy fines of up to 4 % or worldwide turnover and also potential claims for damage and distress caused by such transfers.”

Oh dear! One more worry for Boris’s in-tray!

OFF THE WALL – ART GOES DIGITAL IN LAW FIRMS

In the era of Covid we are starting to look at almost everything is a new way so maybe the times is perfect for the move of video and digital art into the mainstream – including into the offices of law firms.

Michael O’Donoghue, who now masterminds the Hogan Lovells collection, is hugely inspired by the current DAATA Fair which runs until October 25th. A curated fair, the DAATA event provides a focus for 20 invited galleries hailing from across Europe, Asia, North America and South America to feature six works by leading digital artists.

“One of my key objectives was to widen the range of work we had on display in the firm,” explains Michael, “and so digital work was something I was interested in exploring. Unlike conventional painting or sculpture, however, we found that it is important to change or vary digital art on a regular basis so the service offered by Daata seemed ideal.”

By definition digital art can be made available in a variety of ways from exhibition on a large screen in a Reception area to individual Smartphones. This gives an immense range of options to curators including whether to extend access to clients and friends of the firm.

So it is all still in an experimental phase and Hogan Lovells plans to put its toe in the water via up-coming temporary exhibitions in conjunction with DAATA.

“Daata commissions artists who work with video, sound and digital media,” explains David Gryn, Director & Founder of Daata. “ It is such a simple solution to add video artworks to digital screens, and to constantly change and update them too. Daata also provides a subscription service where companies, in addition or instead of purchasing artworks can create their own playlists or stream Daata TV, both enabling virtually an ever-ending supply of changeable artworks throughout the day. Daata works with leading artists such as Tracey Emin, Jacolby Satterwhite, Chloe Wise and Jakob Kudsk Steensen, and leading art galleries from all over the world that include Hauser & Wirth and Thaddaeus Ropac.”

So a pretty exciting, new horizon for art in law firms.

For more go to http://daata.art @daata.art 

Hope that you have enjoyed this edition of the LEGAL DIARY. If so, please send on to friends and colleagues – or even register to follow. We shall be back next week so please send comments, suggestions, contributions to

fennell.edward@yahoo.com