Edward Fennell’s Legal Diary – Edition 54

Friday April 23 2021 Edition 54

Diary news, commentary, insights, appointments and

e-vents from the legal world

SHORT THOUGHT OF THE WEEK

– DEFINITELY OFFSIDE

Detached observers might find it baffling that in a week otherwise dominated by the George Floyd trial, the re-booting of US policy on climate change and suggestions of Whitehall sleaze, that it was the announcement of a new football competition which led the headlines in both print and broadcast media.

The reason, perhaps, was that the ESL controversy was so freighted with other concerns – from globalisation to elite entitlement and the Americanisation of European traditions – that it touched even people with no direct interest in football (let alone soccer).

Law firms from both sides of the Atlantic – along with the bankers – had already been lined up to drive through the necessary changes. And there are, oddly, other connections with the legal world. Do the five (or is it six?) firms which make up the Magic Circle consider themselves candidates for the European Super League of lawyers? Or have we already reached the point where US firms are now so active across London, Europe and the World that the Magic Circle ascription no longer means much?

This is borne out by the fact that Linklaters alone from the Magic Circle is numbered among the eight law firms (mostly American) backing the newly-launched (see below) Windrush Pro Bono Clinic. In short, has the Magic Circle now been relegated?

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IN THIS WEEK’S EDITION

+ THE LEGAL DIARY OF THE WEEK

– Stopping climate change legally

– Advice for Windrush victims

– More Sit-Ups in Court

– ‘And Death came rattling’

+ SPECIAL REPORT OF THE WEEK :THIS WEEK’S FOOTBALL RESULTS

+ LEGAL COMMENT OF THE WEEK: FILIAL IMPIETY

+ APPOINTMENT OF THE WEEK: Faegre Drinker

+ E-VENTS

THE LEGAL DIARY OF THE WEEK

STOP PRESS!! Names of improperly convicted Sub-Postmasters have been cleared – more next week!

Stopping Climate Change legally

With all the interest this week (as every week) in climate change – and Joe Biden’s enthusiasm for the upcoming meeting in Glaws-cow – all self-respecting lawyers must be asking themselves ‘not what climate change can do for me but what can I do to halt climate change’.

Well, the new Chancery Lane Project, sponsored by Thomson Reuters Legal, might have a few answers. As a ‘focused and collaborative effort of lawyers from around the world to develop new contracts and model laws to help fight climate change’ the CLP has brought together a range of model clauses and laws designed to bake anti-climate change measures into legal systems globally. “TCLP is an incredible collaborative effort whereby we can make a real difference to tackle climate change through what we do daily, i.e. drafting.” said Chirag Rao, a Senior Associate at Howard Kennedy.

Although there are already almost 700 lawyers participating in the project there is still room for more people who want to get involved in the process of creating off-the-shelf eco-friendly laws and regulations.

Examples of these new legal contracts include:

• Incentive mechanisms to encourage sustainable practices within supply chain contracts with the aim of reducing emissions.
• Introducing clauses into employment contracts requiring employers to offer employees the chance to participate in climate change awareness training.
• Eco friendly “Cooler plate” (boilerplate) clauses that aim to embed climate issues and Net Zero Targets in the entire contract so these flow into the contract management and commercial lifestyle.

“This pro bono initiative encourages corporations to contribute positively to the environment by introducing those ‘green-friendly’ clauses into contracts,” say the organizers.

To find out more go to https://chancerylaneproject.org/.

Eight just law firms act for ‘Windrush victims’

Bryan Cave Leighton Paisner, Charles Russell Speechlys, Debevoise & Plimpton, Dechert, Latham & Watkins, Linklaters, Taylor Wessing and White & Case have come together with the Joint Council for the Welfare of Immigrants (JCWI) to offer free legal advice to those eligible for the government’s Windrush Compensation Scheme. This follows a disappointingly low number of applicants as a result, it is believed, of inadequate legal support in navigating the complex application process. .

The Windrush Compensation Scheme was set up in 2019 following the Windrush scandal, which broke in 2018 when it emerged that despite living and working in the UK for decades many of the “Windrush generation” and their family members, including children and grandchildren, were told that they were illegally living in the UK. As a consequence they were wrongly detained, deported and denied legal rights.

The JCWI initiative has now been established to assist individuals affected by the Windrush scandal in submitting their applications, assessing the resulting decision and appealing it if necessary.

“Two years on from the introduction of the Windrush Compensation scheme, it is woefully inadequate that so few people have been able to apply for compensation,” said Nicola Burgess, Legal Director at the Joint Council for the Welfare of Immigrants. “The Home Office promised that the people affected would have justice, but they continue to be failed by the government. The scheme is designed in a way which bars them from the support they are entitled to and deserve. We hope that this initiative goes some way to support the Windrush generation, but it’s clear that victims need legal aid and a system which works in their favour, not against them.”

More Sit-Ups in Court

At last Government is doing some exercises to relieve the massive clogging up of the court systems. As widely reported yesterday the Ministry of Justice is to remove the limit on the number of sitting days in the Crown Courts in order to tackle the backlog. But, of course, the problem long pre-dates Covid.

“This is a cause we’ve been campaigning for, publicly and in discussions with the Ministry of Justice, since 2019 when we opposed the government’s decision to cut sitting days,” said Derek Sweeting QC, Chair of the Bar Council. “The criminal justice system has been paying the price ever since, with the backlog of cases in the Crown Courts mounting. Victims, witnesses and defendants should not have to endure long delays before their cases reach court.

“Whilst this is a positive step towards tackling the backlog, as are the expected additional sitting days in civil jurisdictions, it will only prove effective if it is matched by sufficient court staff and resources to support the anticipated rise in cases going through the Crown Court. It will require that the  existing court estate is used to its maximum capacity together with the continued and increased use of Nightingale courts. It must be accompanied by a long-term strategy, not confined to the pandemic period.”

So building back better? Well, a bit better anyway.

‘And Death came rattling’

British people mostly avoid the facts of life – and, even more so. death.

So it’s no great surprise that there is little discussion within families about what happens post-mortem. Indeed, according to a national survey by Ampla Finance 44% of Brits have not discussed financial arrangements with parents or partners in the event of their deaths And even during this pandemic only 12% have reviewed their will or funeral arrangements.

The result is that many families find themselves cast, unprepared, into the probate process when death does come to call. “The UK probate system is notoriously complicated and increasingly slow-moving,” commented Steve Gauke, Head of Partnerships at Ampla Finance. “Unforeseen delays can badly impact a family’s financial planning, so we need greater education around probate and to encourage a frank conversation on family finances, even though we know it’s difficult.”

What’s required, says Gauke, is a call-to-action for people to face up to death and deal with the legal implications in advance. “We are pleased to have started a productive conversation on what has long been perceived as a taboo topic in the UK, and underscored the importance of initiating these sensitive discussions to save further stress at an already testing time for families,” added Louise Hall, Commercial Director at Ampla Finance.

The full report ‘It’s time to talk’ is available to view https://amplafinancelegal.wordpress.com/2021/04/21/wills-and-financial-planning-its-time-to-talk/

SPECIAL LEGAL REPORT OF THE WEEK

THIS WEEK’S FOOTBALL RESULTS

– NO MATCH OF THE DAY

Not so much ‘a game of two halfs’ but more a mash-up of half-wits – that’s been the farcical story of the European Super League this week.And here is what our legal pundits in the commentary box had to say:

STEPHEN TAYLOR HEATH, Head of Sports Law and Partner at JMW Solicitors, commenting at half time.

“It is interesting because the statement last night suggested that the founders believed they could create this league without it affecting the domestic leagues but this letter suggests they regard FIFA and UEFA as the aggressors in seeking to prevent the league forming.

“In essence this is football’s Brexit moment. From a legal perspective, their main issues will be around broadcasting rights and commercial opportunities. TV contracts will have certain conditions requiring participation of the top teams. That will be the dilemma for domestic leagues as to whether this was a “hard Brexit” or “soft Brexit” type scenario.

“The outcry around top teams not earning their place from performance in domestic leagues has happened before in some sports which have from time to time suspended relegation such as Rugby for economic reasons and American Football for example does not have relegation.

“It also raises questions around governance – government intervention could be seen as inappropriate unless it’s in the context of anti-competitive practices. The inevitable consequence of the rich getting richer and the poorer getting poorer is the extinction of the grass roots game and the loss of a good many clubs whose identity is tied to its local community as well as the unemployment of a significant number of pro and semi-pro players.”

And commenting after the final whistle, JAMES EARL, Partner and Head of the Sports Business Group at Fladgate,

“Although the ESL in its proposed form has been stopped dead in its tracks, this saga will continue to raise important questions about the future of European football and what the right balance of multiple competing interests should be. It is important to remember that long-term issues around the distribution of wealth in the domestic and international football pyramids existed well before the ESL (and similar proposals) arose and these will very much remain an issue which needs to be dealt with despite the ESL’s almost immediate demise.

Clearly, the ‘closed shop’ proposals on the table were an affront to most people’s understanding of fair sporting competition. Having said that, European football’s governing bodies are still ultimately left with the challenge of finding a model that concentrates performance and quality to generate the sporting intrigue and excitement that fans want. When it comes to the allocation of rights and revenues, the difficulty remains finding a solution that reflects the considerable value that the biggest teams can, and do, deliver.”

AND IN EXTRA TIME – THE SPECIAL ONE IS SENT OFF (AGAIN)

After spending a short training session (as usual) annoying hard-working footballers on the pitch, Jose Mourinho has been once again been told his services are no longer required.

“In January 2021, we wrote about Frank Lampard’s departure from Chelsea Football Club in very similar circumstances,” comments jointly Jonathan Metliss, Rachel Lester and Alex Huston, the hard-tackling back three atAxiom Stone Solicitors. “As with Lampard, Mourinho would fail to meet the necessary two-year period of service to bring a claim for unfair dismissal as his employment with Tottenham only lasted 17 months with his contract due to expire at the end of the 2022-2023 season.

“Mourinho has made substantial sums of money from departing various clubs – reportedly in the region of £77.5 million. The dismissing clubs have paid these significant sums because, failing to, would leave themselves open to a claim for breach of the unexpired fixed term of the manager’s contract. Depending on the bargaining power of the respective parties, clubs and managers can agree contractual provisions that mitigate the effect of the potentially costly claims for the unexpired portion of the contract.

“Mourinho has indicated that he intends to stay in football and that he does not need a break from the sport. It will therefore be interesting to see where he gets his next contract.”

MEANWHILE IN ANOTHER LEAGUE

Ipswich Town would be an ideal drop zone for Mr Mourinho, suggests our mischievous Sports Editor. After all, she points out, back-in-the-day the formerly triumphant IPSWICH was managed by Mourinho’s mentor Bobby Robson – and it has just been sold to American investment fund ORG (which no doubt has masses of money to splash out on a fancy new manager and zillion dollar glamour contracts).

In their time Ipswich would certainly have been top candidates for ESL status – but the whirligig of success soon left them behind and they dropped into the lower leagues. But now, thanks to law firm Lee & Thompson who advised Marcus Evans, owner of the team for the past thirteen years, they may be heading for the good times again. “The sale signals a major phase of investment into the League One club as it sets its sights on promotion and committing to substantial investment in both the club’s playing squad and infrastructure,” said the accompanying press release. Who knows, Ipswich might be one of the contenders for the next ESL proposal when it resurfaces a decade hence. [Some hope, says our Norwich-supporting Sports editor]

LEGAL COMMENT OF THE WEEK

FILIAL IMPIETY?

Following the award this week of  £75m to Tatiana Akhmedova from her son Temur as part of the extraordinary divorce battle with her former husband Farkhad Akhmedov. Henry Hood, Partner and Head of the Family department at Hunters Law, comments:

“In the latest round of the Akhmedova divorce litigation, the High Court has continued to find in Tatiana’s favour with Knowles J finding for her against her son just as Haddon-Cave J (as he then was) had found for her against her husband. She has not had such luck against her husband in jurisdictions where his assets were actually situated, particularly in Dubai, and to this point the only asset she has got her hands on has been a helicopter, the value of which to her proceedings must now be very stretched.

“However, things may now be different if her son has significant assets, particularly land, available for enforcement in this jurisdiction. It appears that he has had in the past. This may be a game-changer for her.”

So the saga rolls on.

APPOINTMENT OF THE WEEK at FAEGRE DRINKER

Susan Moore has joined  Faegre Drinker as a partner in the finance and restructuring practice group in the London office.

Previously at Stephenson Harwood, where she was head of the restructuring and insolvency practice, Moore will now lead on high-profile cross-border and domestic restructurings and corporate insolvencies. She is a former member of the Insolvency Rules Committee, a body that gives recommendations to the U.K. Lord Chancellor in connection with secondary insolvency legislation.

“Sue is a remarkable talent who has served clients in some of the world’s most high-stakes and precedent setting restructurings and insolvencies,” said finance and restructuring practice group leader Mike Stewart. “Her addition strengthens our practice’s international capabilities and our commitment to providing clients with the most sophisticated guidance in the market.”

E-VENTS

Transformation, Trust and the Data Driven Legal Department

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