Edward Fennell’s LEGAL DIARY

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

July 15 2022 Editorial Contact: fennell.edward@edward-fennell

Short Thought for the Week – Things can only get better?

Tempers are starting to fray on the striking lawyers’ picket-line. As one criminal barrister observed earlier this week, “ It is not at all easy. Apart from not attending court (when I’m wearing my defence hat), I cannot accept any new work. My prosecution hat requires me to go to court, play catch-up on all paperwork which the CPS pile upon me (unpaid) and it is quite frankly unsustainable – there are now too few of us at my level for the amount of work.”

Meanwhile latest figures from the Magic Circle firms show partners within touching distance of £2m a year while their newly qualified twenty-something colleagues are earning more than a Minister of State in the Government.

In short the wealth spectrum within the legal profession is increasingly reflecting that of society at large – a hyper-successful minority at the top and a long tail of left-behinds. It is what now characterises British society. Whether it will feature in any way during this week-end’s TV debates for the Tory leadership will tell us a lot about the candidates and their priorities

The LegalDiarist

In this Week’s Edition

LEGAL DIARY OF THE WEEK

– Burnham Gives Evidence Today at Infected Blood Inquiry

– Finding a Better Way for Group Actions

– Law By Design

– Warfare ‘Imminent’? asks lawyers

LEGAL COMMENT OF THE WEEK on working in heat, judicial diversity and the issuing of sick notes

LEGAL APPOINTMENTS OF THE WEEK at Brown Rudnick and Collyer Bristow.

E- VENTS

LEGAL DIARY OF THE WEEK

Burnham Gives Evidence Today at Infected Blood Inquiry

Today is another big day in the Infected Blood Inquiry

with the appearance of Andy Burnham, the Mayor of Greater Manchester and former Secretary of State for Health (2009-2010). Given this previous role it could be a decisive moment.

“We are grateful to figures like Andy who helped shine a light on the need for fresh thinking and a fresh approach to this terrible scandal which occurred within the NHS and blighted the lives of so many for so long,” said Des Collins, Senior Partner Collins Solicitors and adviser to over 1500 victims. “His evidence on Friday is likely to be hugely insightful.

“Whilst he did not provide any silver bullet solutions to this matter of historic injustice, he recognised that victims needed to hold those responsible to account as well as to obtain fair financial compensation which is not based on charity. His written statement suggests there was a fierce resistance within the Civil Service to anything that opened the Government to potential negligence action or indeed to investigate its own actions by way of a public inquiry.”

Meanwhile in another development Sir Brian Langstaff, the chair of the inquiry, is considering making a recommendation to Government about interim payments for victims of the scandal

“It has been obvious for some time based on the evidence heard from victims, from Sir Robert Francis and, the delayed timetable of the inquiry meaning its final report is unlikely to be until 2023, that any proper compensation – if it ultimately comes – may be too late for many,” said Des Collins. “An intervention by Sir Brian now to recommend interim payments as soon as possible would hopefully be one that the Government cannot ignore and is a significant endorsement of the excellent work of Sir Robert Francis. At last, the wheels may be turning in the direction of doing the right thing by those impacted at the hands of the state so terribly for so long ago. This cannot come a moment too soon.”

Andy Burnham’s evidence to be the subject of questioning on Friday, can be viewed here.

Finding a Better Way for Group Actions

The scope for group actions has been given a boost this week with the launch of Find Others. Supported by a £50,000 award from the Solicitors Regulation Authority as part of its Legal Access Challenge to broaden access to legal help through technology, Find Others allows consumers to look for other people affected by the same injustice or to start their own campaign group, petition or legal action without the expense of a bespoke websites or onboarding tools.

In the best traditions of lightbulb moments Find Others emerged bizarrely from the experience of dealing with a faulty car by founders Georgina Hollis and Amar Chauhan. “It turned out that we were not alone,” said Chauhan, “but we were unable to find other owners easily. Getting a group together to take action was incredibly difficult, so we decided to make it easier. We want to democratise the legal market.”

Law firms are able to sign-up for free to appear in the Find Others legal directory and can also manage and grow their legal action via the platform. The technology means that a case group can be launched by lawyers within minutes – whether or not they have a core client – and ‘will never have to reject a case again because it is too small or there are insufficient claimants to make it viable’.

In fact Find Others has already chalked up its first success by helping hundreds of families unite to form Vaccine, Injured Bereaved UK (VIB UK), a group fighting for a fair compensation scheme for those severely injured or bereaved by the Covid vaccine. The group said, “Find Others has fundamentally changed our ability to hold power to account, by helping us to gather effected individuals, build a powerful group and shine a light on injustice.”

Sidonie Kingsmill, customer, communications and innovation transition lead for HMCTS was on the Legal Access Judging panel which awarded Find Others £50,000 from the SRA. She said: “We are excited about the possible streamlined processes and greater efficiencies that Find Others could bring throughout this legal journey, and we expect this to have a hugely positive impact on the people who need to make use of this legal avenue.”

Law By Design

In 2018, Newcastle Law School became the first law school in Australia to offer students a dedicated course on Legal Design Thinking. “We did so in response to the changing legal environment, with the intention of helping students to understand the role of innovation in a ‘disrupted’ legal world,” they proclaimed. So the new book, ‘Design in Legal Education’, published last week by Routledge, is catching the wave as it takes an intriguing look at legal processes and legal education.

The thesis, put simply, is that ‘legal design—that is, the application of design-based methods to legal practice—is increasingly embedded in lawyering across the world’. By bringing together experts from a number of disciplines, professions and jurisdictions Design in Legal Education lays out how ‘designerly mindsets, processes and strategies can enhance teaching and learning across higher education, public legal information and legal practice’.

If that sounds a bit academic many of the subjects tackled are very topical including, for example, the problems faced by people who go to court without a lawyer – ‘the practical barrier of not having access to public legal education on what court proceedings involve and the attitudinal barrier that sees litigants in person as a burden on the court system’. Nonetheless the notion that legal process and thinking can be enhanced by visualisation might seem radical to many older lawyers. But, come what may, it has the weight of the legal Establishment behind it – the book is published in conjunction with the City Law School and Kent Law School.

But it also includes the views of outsiders. In her chapter ‘Judging by appearances’, unofficial court illustrator Isobel Williams ‘meditates’ on some notable court scenes – including the trial of the ‘Naked Rambler’, ex-soldier Stephen Gough. All very thought-provoking

Design in Legal Education Edited By Emily Allbon & Amanda Perry-Kessaris

Published by Routledge For more see: https://www.routledge.com/Design-in-Legal-Education/Allbon-Perry-Kessaris/p/book/9780367075798

Warfare ‘Imminent’? asks lawyers

For obvious reasons not many of us want to think too much about the possibility of a full-blown war with Russia and its allies. The daily bloodshed isolated in Ukraine disguises from us the reality that continental warfare could – conceivably – be imminent. But according to a study just published in the Journal on the Use of Force and International Law by Dr Chris O’Meara of University of Exeter Law School, urgent thought now needs to be given to how the UK and allies like the USA and Australia would respond in self-defence to ‘imminent’ armed attacks.

The UN Charter requires countries to establish that they have been a victim of an armed attack before they may respond militarily in self-defence. “This cardinal rule of international law plays an essential role in the maintenance of international peace and security and the question of imminence might determine the lawfulness of a state’s resort to self-defence,” says the University.

“A state’s right to act in self-defence against ‘imminent’ armed attacks remains an unsettled question of international law,” warns Dr O’Meara “Yet, states persist in justifying military actions on this basis. We require a better understanding of legal arguments involving imminence if we are able to comprehend the scope and content of international law and assess claims of conformity with it. Greater dialogue among states and scholars on this topic is needed. A multilateral consensus would avoid future confusion and possible conflict and the onus is on those states, like the UK, that have already set out their views to take the lead. Better legal diplomacy on this matter would enable better international cooperation and joint action between states, as well as a clearer understanding of international law, allowing for states to manage differences in interpreting legal obligations.”

Points worth remembering down in the bunker

LEGAL COMMENT OF THE WEEK

TOPIC: ‘Danger to life’ heat warnings

COMMENT BY: Adam Pennington, senior associate solicitor, Stephensons

“A pattern of extreme weather has become much more apparent over recent years. Unfortunately, workers’ rights when it comes to soaring temperatures haven’t really kept up with our changing climate.

“From a legal perspective, whilst there isn’t a specific set temperature that organisations deem too hot to work, they do have a duty of care for their employees. The Health and Safety Executive guidance suggests that the workplace temperature must be “reasonable”, and the government recommends a “comfortable” working environment with access to fresh air. Naturally, this is going to vary according to the type of work being undertaken and where that work is being done. A factory for instance is likely to be much warmer than an office. 

“Organisations must also make detailed risk assessments for all staff and consider the impact of a heatwave on more vulnerable colleagues or those with health conditions.”

TOPIC: The release of the Combined Statistics report on Judicial Diversity 2022,

COMMENT BY: Professor Chris Bones,Chair of CILEX Chair

“Evidence and understanding must underpin any action taken to improve judicial diversity. This report adds to that data, but it also shows little movement. It begs more questions than it answers, and, from CILEX’s perspective, this includes understanding why CILEX members, who comprise the most diverse part of the legal profession, only account for 1% of the applicants for judicial roles. Opening up all judicial posts to CILEX members would be part of the solution and we look forward to supporting other positive steps to encourage and develop the broadest range of applicants successfully joining the judiciary.”

TOPIC: New legislation allowing a wider range of healthcare professionals to certify fit notes in order to ease pressure on GPs.

COMMENT BY: Hannah Wilkinson, Head of People and Culture at Radar Healthcare

“When taking into account how much of a burden certifying sick notes was for already extremely busy GP’s, this new legislation is certainly a positive move in the right direction. With so many back and forth delays, something as simple as securing an appointment or phone call with ones GP in order to return to work can be a nightmare for many UK workers, so this should help to relieve that. 

“As a result of this move, there will also hopefully be a knock on effect of a reduction in GP waiting times, as they will ultimately have more time to focus on seeing sick patients rather than dealing with the processes involved in certifying sick notes. 

 “For employees requiring further medical advice via a fit note to support a safe return to work when appropriate, there are going to be multiple benefits of employees being able to receive a fit note from their physios, pharmacists, occupational therapists, and nurses.” 

APPOINTMENTS OF THE WEEK

BROWN RUDNICK

James Douglass has been appointed as Partner and Co-Chair of the Global Energy Transition Group at Brown Rudnick LLP. Previously, a Partner at K&L Gates, Baker Botts and Linklaters, Douglass has 34 years’ experience in private practice with a focus on renewables, green hydrogen, corporate PPAs, battery storage, LNG and renewable gas. He has advised on numerous landmark deals across these areas, including working with a leading US corporate on a global technology development joint venture in solar power and advising leading global online retail, beverages, manufacturing, technology, life sciences and energy companies on over 40 corporate PPAs for the purchase of renewable energy in Europe.

 “James is a prime example of the excellent and well-respected talent that we have at Brown Rudnick,” said Vince Guglielmotti, CEO and Chairman of Brown Rudnick. “With strong experience in the energy transition sector and a global client base, he is an excellent addition to the team and will ensure that Brown Rudnick continues to lead in this strategically important sector.”

Douglass responded, “I am thrilled to be joining Brown Rudnick . The firm has a stellar reputation for deal making right across the value chain, from series A funding to exits, which is precisely how I like to work with clients.”

COLLYER BRISTOW

Dan McCarron has been promoted to Partner at Collyer Bristow in the firm’s Commercial Real Estate department. Previously with Eversheds Sutherland and Reed Smith, McCarron will focus on supporting new and existing clients with their transactions following COVID-19 and the resulting shake-up of the commercial real estate sector.

“The significant societal changes resulting from the COVID-19 pandemic has had a direct impact upon real estate sector,” comments the firm. “Landlords are now re-gearing leases on a turnover basis while also following non-typical lease structures such as property management agreements. Residential development is also growing at a very quick rate with individuals accepting they need more space, and with office working moving to a hybrid model, many assets will need repurposing as opportunities to do so present themselves.”

Michael Grace, Head of Real Estate at Collyer Bristow, observed, “Dan is an exceptional lawyer with huge amounts of energy and is enormously passionate about what he does. He is extremely well regarded by clients for his expertise and commercial approach to resolving complex issues.”

E- VENTS

Come rain or shine we expect to be back next week so please continue to send your Diary news stories plus insights and comments to

fennell.edward@yahoo.com

And enjoy meeting the candidates over the weekend!