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

6 September 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Flaming Indignation, Flimsy Foundations

Can changing the law be enough to change people’s values?

“The Building Safety Act began the process of ensuring the Grenfell tragedy never happens again,” commented Richard Beresford, Chief Executive of the National Federation of Builders (NFB) in the aftermath of this week’s searing but unsurprising report.

Strengthening the law and regulation are clearly vital . But not enough. The bigger issue is the moral one – a flaw which currently characterises British society whose ethical foundations have fragmented. As Richard Bayfield, Trustee for ethics and professional conduct at the Institution of Civil Engineers, put it this morning, “The common thread from this, the Post Office investigation and the cancellation of part of HS2 is a conspicuous lack of selflessness, integrity, objectivity, accountability, openness, honesty and leadership. These seven characteristics are the principles for public life first articulated by Lord Nolan in 1994. The challenge for our society is the emergence of a culture that has allowed our ethical standards to erode to such an extent.”

This has as much relevance to the law as to construction. So where exactly is our moral compass? Maybe endlessly on display – but seldom actually followed?

TheLegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– Funding for Justice in Freefall

– Seladore says ‘Ciao’ to fashionable Milan

– Climate Change – There should be a law against it

– Private Equity Powers on at A&O Shearman

+ CONTRIBUTED ARTICLE OF THE WEEK

PENSION DEFICIT BY WOMEN ON DIVORCE – IRREPARABLE LOSS? By Matthew Taylor

+ LEGAL COMMENT OF THE WEEK

on the Oasis ticket scandal and coercive control on TV

+ APPOINTMENTS OF THE WEEK

at Brick Court and Irwin Mitchell

LEGAL DIARY OF THE WEEK

Funding for Justice in Freefall

It is no great surprise to see that public funding for justice has shrunk by 22.4% in real per person terms since 2009/10 according to figures just published by the Bar Council. Speak to any criminal barrister and they will provide the squalid details of the conditions in which they work and the circumstances in which the accused are held. And, as last evening’s BBC News, revealed in vivid detail, it is the delays in the justice system which is a key element in fuelling the prisons over-crowding crisis.

Other key data include that funding for justice is 30.4% below where it would be if it had kept pace with UK inflation, population growth and the economy. This means that the level of spend in 2022/23 was £181 per person – around 0.5% of GDP. By contrast the spend on defence was £820 per person, education was £1,550 per person) and transport was £640 per person.

“Crumbling court buildings, barristers and solicitors leaving publicly funded practice as fees have stagnated, swingeing cuts to legal aid leaving litigants in person struggling to represent themselves,” said Sam Townend KC, Chair of the Bar Council. “ And all of this exacerbates the chronic problem of court backlogs.We know the scale of the problem and that, without a change in direction, things will only get worse. With the spending review coming up we are asking the government to rethink the approach to justice spending. The system needs investment now and a restoration of funding for long term sustainability”.

The criminal justice system has proved over the last few weeks that it can be the key factor in maintaining social stability. The Riots brought about the crisis which galvanised a complacent State into action. But will we see a follow-through into a sustained strategy?  

Seladore says ‘Ciao’ to fashionable Milan

There’s been much talk in the business press about the exodus from London of the non-doms with many of them heading to Milan. And where that level of money goes lawyers are sure to follow. So it’s striking that Seladore Legal – uniquely focused on arbitration – has just opened in Milan.

Bribery, corruption, white collar crime generally and the roll-over to criminal and regulatory matters are the bread-and-butter (soon to become pizza and pasta) of Seladore’s activities and, indeed, such activity has, occasionally, occurred in Italy. So it’s probably a good pick.

But, as is well known, business is personal in Italy so the firm has made a wise decision to appoint Laurence (Larry) Shore as partner to head up the office.

Shore joins from a leading Italian firm so knows the patch well. Prior to that he was at Gibson Dunn in New York and Herbert Smith Freehills in London (and New York) so he can tick all the boxes. As the firm comments, Shore “Brings a wealth of experience in handling complex commercial and treaty disputes for a diverse range of clients, including multinational corporations, financial institutions, sovereign states, and high-net worth individuals.”

Maybe it is a tribute to the nous of the Meloni regime that Italy is now surging back as place for this kind of business. But Milan has always had a special appeal to a certain kind of law firm. Back in the day when London firms were seriously starting to expand into continental Europe for the first time, Milan was a target for outfits like the late, lamented Frere Cholmeley under the leadership of Tim (Later Lord) Razzall. It was over-expansion which led to Frere’s demise. We are sure that won’t happen with Seladore.

Climate Change – There should be a law against it

Despite the massive shift in the UK away from carbon-based fuel and towards renewables nothing much seems to change. So if wind won’t shift the dial, maybe our other great resource can achieve something – the law.

Professor Javier Solana, of the School of Law, University of Glssgow has been awarded a European Research Council (ERC) ‘Starting Grant for Civic Finance’ with a view to exploring the role that law can play in developing a financial system that will address climate change.

“To avoid catastrophic climate change, we need complementary legal interventions,” said Professor Solana. “My research has focused predominantly on the exploration of the role that law can play in leveraging the power of the financial system to address the climate crisis. As part of this, I have come across fascinating analysis of the relationship between finance and the climate from sustainability scientists and I aspired to, one day, be able to apply similar research methods to investigate the role of law in that relationship.”

So can changes to the law effectively apply a brake on an accelerating climate crisis? “Building on institutionalist theories of law and finance, the project argues for the utility of complexity-sensitive methods to study how law shapes complex financial systems,” comments the University. “In the longer term, the project will revolutionise how European lawmakers, financial institutions, and civil society organisations use the law to mitigate CO2 emissions enabled by the financial system.”

Professor Solana, meanwhile, is fired up. “With the generous support of the European Research Council I will now have the resources to do this, and I cannot wait to get started,” he says.

Private Equity Powers on at A&OShearman

Following the stresses and strains of its merger A&O Shearman seems to be settling down and gathering new pace with private equity being a particular priority.

“Following our transformational merger, A&O Shearman has set out its plan to invest in growing one of the pre-eminent private capital practices worldwide,” said Stephen Lloyd, global co-head of private equity and private capital sector lead at the firm as it announced the arrival of two new recruits, Dan Graham and Paul Dunbar, at the PE practice in London.

“Having Dan and Paul join us will significantly grow our London private equity and infrastructure bench,” continued Lloyd. “These partners are dedicated to servicing some of the most important global multi strategy asset managers.  Our intention is that this is just the first step in a global growth strategy for our private capital offering.”

Both of the pair have come from Sidley Austin, and their recruitment builds on the momentum of the recent Debt Finance hires of Karen McMaster, Parisa Clovis and Filippo Crosara.

“They are exceptional partners with proven track records and strong relationships with great clients,” says Robin Harvey, global co-head of the firm’s private equity team which advises 9 of the 10 largest global private equity fund managers and 60% of the 25 largest global private equity fund managers (according to PEI 300 2023). Just feel the power.

CONTRIBUTED ARTICLE OF THE WEEK

PENSION DEFICIT BY WOMEN ON DIVORCE – IRREPARABLE LOSS?

With Pension Awareness day looming next week women in the UK are estimated to be missing out on £2–4 bn. by failing to factor pensions into their divorce negotiations. What should be done about it? asks Matthew Taylor

This Pension Awareness Day (9 September), we should be drawing attention to the fact that women going through a divorce could be missing out on £2 – 4 billion by failing to include pensions in their financial settlements.

 Why? Because people tend to underestimate the values of pensions when dealing with their divorce. But with the Gender Pensions Gap upon retirement now reaching 38%, it is a very risky move for women not to include their ex-spouse’s pension in divorce negotiations.  Bearing in mind women tend to be the financially weaker party, almost 4.5 million women are at risk of poverty in retirement with no pension pot.

Upon divorce, many women prioritise retaining the family home over making a claim against pensions. This is understandable as it is a readily available asset that covers their practical and emotional needs, and those of any children. However, when we look at the bigger picture, beyond the stress and immediacy of the divorce process, a shared pension could provide much-needed long term financial stability far more valuable than the matrimonial home.

 Statistics from the Institute of Faculty Awareness (IFoA) and Scottish Widows recently revealed that only 30% of divorcing couples include pensions in their financial settlement, and 28% of women did not know they should form part of discussions.

In a survey we at Stowe Family Law conducted, 25% of women did not know whether their spouse had a private pension and 77% did not know its value.

 Much of this is the result of a lack of knowledge, and confusing myths about how pensions are divided in divorce. Pensions are unfortunately too often seen as a sole asset, belonging to the owner of the pot, rather than their legal status as a matrimonial asset, capable of being split.

 There is also a mistaken belief that getting a pension sharing order will mean the couple’s finances remain linked. However, it is entirely possible to achieve a clean break with a pension sharing order as a proportion of the shared pension is transferred into the receiving spouse’s sole name, allowing both parties to manage their finances separately throughout the remainder of their working life and in retirement.

 Anyone going through a divorce needs to be aware that straightforward advice concerning pensions on divorce is readily available to help ease concerns around the complex nature of pensions, particularly for those going through the emotional and practical stress of divorce.

 Speaking to a family lawyer and a financial adviser will be extremely beneficial for separating couples and save a great deal of financial strain down the line.”

Matthew Taylor is a Partner at Stowe Family Law 

LEGAL COMMENT OF THE WEEK

TOPIC: The controversy over the sale of tickets for the Oasis concerts and the intervention by the Competition and Markets Authority

COMMENT BY:  Alex Haffner, competition partner, Fladgate

 “The Oasis reunion has not only caught the public imagination, but also lit the blue touchpaper on ticketing practices around live events. As recently as 2021, the CMA made a series of proposals to government around tighter controls of ticketing platforms. At that time, however, the concerns were principally around the resale market and consumers finding they may have bought tickets that were fake or not redeemable. Today’s announcement by CMA concerns pricing and Ticketmaster’s dynamic pricing model, which led to prices surging with demand and consumers being forced to decide on the spur of the moment whether to accept higher prices.

“Ticketmaster faces possible enforcement action by the CMA, particularly civil enforcement action. Those powers are due to be significantly beefed up when the Digital Markets, Competition & Consumers Act comes into force later this year, allowing the CMA to issue fines of up to 10% of global turnover. Of more immediate relevance, however, is the fact that the CMA has also announced it is (again) engaging directly with government on the issues brought about by the Oasis furore and has suggested in its press release that it would wish to assist government in bringing forward specific regulation to deal with the issues arising from dynamic pricing practices.”

TOPIC: Coercive control and how it is featured in the TV soap series Emmerdale

COMMENT BY: Rayner Grice, Partner, Family Team Clarke Willmott LLP

“The court and the police have increasingly begun to take this behaviour very seriously and the impact this conduct can have on sufferers and any children they may share. Emmerdale is to be praised for bringing to light the insidious nature of coercive control in intimate relationships and its devastating impact on victims.”

“The storyline in Emmerdale mirrors real-life situations where victims find themselves trapped in a web of manipulation and control, often feeling isolated and powerless to seek help.

“Perpetrators might exploit vulnerabilities to maintain control or prevent victims from seeking assistance, in this case Belle’s history of mental health issues.

“As family lawyers, we often see victims fear losing their children if they report the abuse, with perpetrators manipulating them to believe this is true.”

APPOINTMENTS OF THE WEEK

BRICK COURT

Ian Gatt KC (left) has joined Brick Court as a mediator. As a trail-blazing barrister who led the way in joining top law firms as a partner, first at Herbert Smith Freehhills and, subsequently at Stewarts, Gatt has a unique reputation after nearly 40 years in private practice at all levels of the English courts system. No wonder that he was described in the latest edition of the Legal 500 as, “…the complete package, and there is nothing he has not seen.  There is no one you would rather be in the trenches with.”

Gatt is obviously pleased with his latest move. “I am delighted to be joining the first rate team at Brick Court and looking forward to further developing my practice as a mediator with them,” he said. Meanwhile Helen Davies KC, Joint Head of Chambers at Brick Court commented: “We are very pleased to welcome Ian to Brick Court, where he will add yet further strength to our talented group of mediators.”

IRWIN MITCHELL

Cara Hough (left) has been appointed by Irwin Mitchell as a Partner and specialist litigator to its Will, Trust and Estate Disputes team in the South West. Previously with IDR Law Hough is a highly experienced solicitor specialising in contentious probate. Her arrival in the Bristol office beings the local team to 75 people and the aim of growing the firm’s contentious probate provision in the regio. This stands alongside the existing family law, complex personal injury and public law teams. Meanwhile the firm has the second largest private client team in the country and one of the largest contentious probate teams.

“Irwin Mitchell’s reputation for private client work nationally is second to none and while the firm has an incredibly strong national contentious probate team, I’m looking forward to growing the specialist team across Bristol and the South West,” said Hough.

Paula Myersthe firm’s National Head of the Will, Trust and Estate Disputes team added, “We’re continuing to invest in all areas of private client across the country and Cara’s expertise, talent and knowledge will be a real asset to our regional team and the National contentious probate team.”

Irwin Mitchell also recently opened a new office in Brighton to strengthen its presence in the southeast of England.

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 for another wet week-end.