Edward Fennell’s Legal Diary
Diary news plus insights, commentary and appointments from the legal world
20 September 2024
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: Owning the Goal
The Prime Minister appears on the front cover of the current edition of The Aularian, the magazine of St Edmund Hall, the Oxford college where he undertook his post-graduate legal studies. ‘Teddy Hall’ as it is nicknamed has a strong sporting tradition which probably appealed to the football-mad Keir. But football is now tripping the Prime Minister up both in his own little local difficulty about freebies at Arsenal and, more significantly, threats from UEFA to the UK Government’s plan to oversee the game
Rather like the Papacy in pre-Reformation days the football authorities see themselves as transcending the jurisdiction of mere national law-makers. Uninteresting though it may be to many people, just how Starmer handles this row may reveal much about the Prime Minister’s views on the role of government, the independence of the UK and, above all, how far one should be bound by established regulations.
The LegalDiarist
In this edition
+ LEGAL DIARY OF THE WEEK
– Foot Anstey Taking Responsible Action
– Lawyers Being Mindful about Mental Health
– What constitutes a strong culture in a law firm?
– Key Take-Aways from the FT Innovative Lawyers Summit
+ LEGAL COMMENT OF THE WEEK
on the changes to the gradings of Ofsted inspections, the landmark ‘Excel case’, the talks on global cybersecurity convened by the UK and the UniCredit v RusChemAlliance anti-suit injunction
+ APPOINTMENTS OF THE WEEK
at PwC and Kennedys
LEGAL DIARY OF THE WEEK
Foot Anstey Taking Responsible Action
How can law firms become good ‘corporate citizens’ – that is, how can they play their part in the wider community both socially and economically?
One interesting example is being offered by Foot Anstey which has announced that it will be donating 1% of net profits annually to its ‘responsible business programme’. The firm reckons that it is one of the first UK law firms to make such a pledge.“We take our responsibility to our people, the planet and our communities seriously,” said Martin Hirst, Managing Partner, “Being a more responsible business is critical to helping us realise our ambitions, which is why it’s one of the four pillars of our firmwide strategy.”
The funds which will be raised by the initiative will be directed to the development and delivery of a wide range of programmes – from meeting the firm’s net zero commitments to tackling the challenge of social inclusion for young people around the country.
Speaking about the programme, Executive Director of Responsible Business at the firm, Bola Gibson, said, “Foot Anstey is ready to take the next step on the journey to having a greater positive impact on local communities and young people across the country. We’re an ambitious business, and we want to apply that ambition and passion to helping young people access opportunities that build their confidence and unlock their potential futures.
This programme is just the beginning. We’re in the process of developing a longer term strategy which will see us grow our support to tackle social mobility cold spots and to find and support our next generation of talent. Our new strategy will also see us make significant commitments around environmental performance and to the provision of other resources to help local communities.”
So will other firms now follow in their footsteps?
Lawyers Being Mindful about Mental Health
Earlier this week the Mindful Business Charter (MBC) Team launched Addressing the Mental Health Challenges in Legal Practice, a statement of best practice for law firms and in house counsel. It went down a bomb at an event hosted by CMS.
“We were delighted that the guidelines were well received,” said the team. “Now comes the crucial work of translating the words on the page into meaningful action.”
As MBC observes, “There is a well-documented crisis of mental health within the legal profession globally. The Mindful Business Charter is a community of businesses (legal and otherwise) committed to reducing the unnecessary stress in the ways we work so as to enable healthier and more effective ways of working – addressing the causes of much of the distress experienced. This guidance is focussed specifically on the legal sector and on what organisations in that sector should be doing to understand and manage mental health and well-being more broadly.”
The guidance published is the result of a meeting of senior leaders of the legal profession convened by MBC in June 2024 to focus on the challenges and risks to health often associated with law firm culture. And the report is blunt about the kind of problems which might be surfacing in the lives of lawyers under mental stress. These include:
– Persistent long term stress;
– Persistent and unpredictable long hours of work without adequate breaks and rest;
– Lack of sleep;
– Disconnection from loved ones and other emotional supports.
Such factors, commented the report, are ‘consistently identified and recognised as being part of the challenge.’
So what is to be done? Among a long list of recommendation one, in particular stands out:
Nominate, train (to include keeping that training up to date) and support specific individuals in the organisation, at a ratio of at least 1:20 with a broad range of roles and levels of seniority, that people can talk to, without judgement, in order to enable them to access the mental health support you can offer. Ensure that these individuals and their role are well publicised.
Sounds good sense.
For more on the MBC go to www.mindfulbusinesscharter.com or contact info@mindfulbusinesscharter.com
What constitutes a strong culture in a law firm?
Following on from the MBC (above) it should come as no surprise that workplace culture is a business critical issue in law firms. But in the aftermath of Covid and extensive flirting with working-from-home there are mixed views about the best way forward – highlighted by the UK’s government new announcement about flexible working.
According to a ‘White Paper’ published by MD Communications, 84% of those lawyers surveyed ‘strongly agree’ that a positive culture enhances employee retention while 71% ‘strongly believe’ it affects recruitment. However, what might be seen as potentially controversial is that as many as 39% felt that remote working has negatively affected their workplace culture. This is despite the fact that it is recognised that greater flexibility is recognised to assist aims and values that support equality and diversity.
But that is the conundrum. While potential recruits are increasingly demanding flexible working and WFH it may turn out that, in the long run, this diminishes a sense of being part of a strong culture. In other words ‘be careful of what you wish for’.
“Firm culture plays a critical role in our law firm selection process,” said Jeff Davis, Chief Legal & Corporate Affairs Officer, Ontario Teachers’ Pension Plan “A law firm may have the “smartest” or “most experienced” lawyers, but without a healthy culture, they will never reach their full potential, and carry concealed risks to clients which ultimately surface over time. And conversely, a law firm with a healthy culture generates top performance with a talent pool that develops and grows, is deeply valued by its clients, and will beat out its competition in the end.”
Meanwhile just one third of contributors to the poll said that they felt the culture at their current workplace was ‘very good’. So to obtain a copy of the White Paper ‘Workplace culture in the legal sector’ download it here.
Key Take-Aways from the FT Innovative Lawyers Summit
According to speakers at the recent FT Innovative Lawyers Summit the legal sector is facing two key challenges:
– The GenAI Revolution: Artificial Intelligence which is reshaping the legal landscape at an unprecedented pace.
– The Human Skills Revolution: As technology advances, uniquely human skills are becoming increasingly valuable.
Both challenges are difficult to manage effectively but the message of the conference was to ‘embrace technology, but don’t lose sight of the human element that makes great lawyers indispensable’.
One of the key functions of dynamic lawyers, suggested the discussion, was to embrace “positive paranoia”— that is to stay several steps ahead of change by anticipating potential challenges before they arise. And in present circumstances they need to be constantly aware of the threat to the rule of law.
“When I think of a lawyer, I don’t think of myself as a lawyer,” said one contributor rather paradoxically. “I mean, I am a lawyer, and I love being a lawyer, and it’s a great platform. But I think of it much more than a lawyer. I think of myself as a communicator and all these other things. It is really important to keep reminding ourselves and reminding the lawyers that to persuade and move people is key and something lawyers are good at.”
(Well, maybe it made more sense when it was first said than it reads now!)
The AI issue was viewed with some circumspection. “It’s really important for us to understand how AI can help us deliver better legal services,” said one lawyer. “There’s tremendous potential there. But we also have to understand that there’s tremendous danger. If our lawyers are more educated, they can help shape the policies of government.”
Yes, some great insights (possibly).
AN APPEAL TO LEGAL DIARY READERS
We have been asked by The View magazine, which caters to women serving time in gaol and their supporters, to publish this appeal:
WOMAN WITH CANCER HELD TO RANSOM BY CROWN COURT! IS THIS THE RETURN OF THE DEATH SENTENCE?
Hi, I am Jacqui from The View Magazine, we are a social enterprise platform by and for women in the justice system. we publish a quarterly magazine and we produce the Rebel Justice Podcast.
Can you help us raise £30,000 for Farah for bail funds to access chemotherapy for her aggressive stage 3 breast cancer. Also, she has Complex Post Traumatic Stress Disorder.
Farah has been remanded to prison by the judge at Woodgreen Crown Court for 6 months. Essentially he is holding a woman with cancer to ransom until she can pay substantial bail funds, for false allegations of non violent offences that arose following a messy breakup, in which she was a victim of violent abuse and coercive control.
Last month the court refused £10,000 bail. She had surgery in April at UCLH followed by four life threatening hospital infections, she remained hospitalised for 3 months. She was forcibly returned to the failing private prison HMP Bronzefield on July 25th, after the director’s unverified assurances to her medical team that the complex wound aftercare and chemotherapy could be managed in his prison.
Her surgeon did not want her discharged to prison, because he was very worried about the neutropenic sepsis risk in chemotherapy patients. However, without investigation, UCLH agreed to her discharge into this unsanitary, unhygienic environment, where she was put into a dirty cell, and immediately contracted another infection. She is becoming increasingly frail. Her oncologist told her on 4 September that she must start chemotherapy immediately or she has less than a 20% chance of surviving to July 2025.
Please help us save her life! https://gofund.me/d4a8914a
LEGAL COMMENT OF THE WEEK
TOPIC: Changes to the gradings of Ofsted inspections
COMMENT BY: Katie Michelon, Partner in Ofsted Inspections, Browne Jacobson
“With significant public conversation surrounding the removal of single-phrase overall judgements, there may be some confusion amongst parents and school communities regarding the continuation, for now, of single-phrase judgements for the key judgement areas in the inspection framework.
“Given that we are still at least a year away from report cards and the complete eradication of such judgements, there’s a danger that, in this ‘halfway house’, more attention is paid to weaker judgements in individual judgement areas, regardless of whether or not this leads to intervention steps by the Department for Education.
“Therefore, it’s arguably more important than ever that schools proactively engage with their stakeholders, provide information and context regarding performance in different areas, explain steps being taken to address any accepted areas of weakness, and highlight those areas where they are excelling.
“By driving a more nuanced and sophisticated dialogue around inspection outcomes at this juncture, schools can facilitate the further changes ahead.”
TOPIC: The Court of Appeal judgment made in the landmark ‘Excel case’ which centres around Covid-19 related business interruption coverage
COMMENT BY: Cathy Harris. Partner, Clarke Willmott LLP
“The decision in London International Exhibition Centre PLC v Allianz and ors [2024] EWCA Civ 1026, sees the policyholders win against several insurers with the Judgment clarifying the interpretation of ‘at the premises’ clauses in various insurance policies. The effect of the Court of Appeal decision is that the doors are further open to the prospect of settlement where there is evidence of disease at the premises at the relevant time. There is now no scope for insurers to argue that a policyholder must prove that the specific occurrence of disease at its premises was the main or substantive cause of the government forced closure.”
TOPIC: The talks on global cybersecurity convened by the UK
COMMENT BY: Michael Drury, of counsel and cybercrime expert. BCL Solicitors
“Despite attempts to politicise the issue, it’s great to see a new push to improve the UK’s cyber workforce and make sure cybersecurity is a priority for all organisations, big or small. Cybersecurity often gets overlooked, but it’s crucial to constantly update both technology and training to stay ahead of attacks.
“Any new laws should be carefully considered and not just passed for the sake of doing something. There’s already plenty of regulation, like data protection laws. While there are constant calls to update the Computer Misuse Act , now over three decades old, the main problem may lie in the lack of resources and skills for proper enforcement. New laws should be judged on whether they’re truly necessary, practical and beneficial to society.
“It’s also hard to track down and stop cybercriminals, given how skilled and hidden they are. Greater international cooperation and better use of existing frameworks like the Cybercrime Convention may be where real progress happens. The global focus of this government initiative is a positive step forward.”
TOPIC: The Supreme Court decision regarding the UniCredit v RusChemAlliance anti-suit injunction
COMMENT BY: Joel Seager (Partner) and Robaidh Allighan (Associate), Fladgate
“The Supreme Court unanimously upheld the Court of Appeal’s decision to grant an anti-suit injunction restraining Russian proceedings brought in breach of an arbitration agreement. The judgment demonstrates that the English courts will step in and assume jurisdiction to uphold the provisions of the New York Convention by enforcing a party’s contractual promise to arbitrate.
A key takeaway from the judgment is that a party seeking injunctive relief to enforce an arbitration agreement will no longer have to show that England is the most appropriate forum. Instead, parties may be held to their agreement by any court which can reasonably assume jurisdiction. The judgment lowers the threshold for parties seeking extra-territorial injunctive relief, opening the door to future litigants who have been deprived of their contractual right to arbitrate a dispute.
The Court emphasised the importance of having a clear and simple rule that, where the law of an arbitration agreement is not specified, the governing law of the main contract will apply. There is however tension between the common law position and the new draft Arbitration Act, which currently provides that the governing law of an arbitration agreement will be the law of the arbitral seat. Notwithstanding the proposed statutory changes, the Court declined to reformulate the common law principles while Parliament is still considering the draft legislation”
APPOINTMENTS OF THE WEEK
PwC UK
Lewis Bretts (left) has joined PwC UK as a Partner in its Legal Technology team to focus on PwC UK’s AI, legal technology and managed legal services provision. Previously the COO and Chief Legal Engineer of legal technology and operations consultancy SYKE, Bretts was also US Group Managing Director of the LOD Group where he led the development of the group’s US business prior to its acquisition by Consilio LLC. As a result he brings specific experience in building and delivering global legal technology, CLM, and managed legal services solutions.
Bretts’ arrival represents the latest investment in the firm’s legal technology offering at a time when lawyers are adapting to an era of advancing technology, new business models and evolving client expectations.
“With a background that spans commercial law, legal technology implementation, and alternative legal services, I look forward to contributing to PwC’s innovative approach in helping clients transform the way they manage their contracts and deliver legal services,” said Bretts.
KENNEDYS
Dr. Nathalie Moreno (left) has been appointed as a partner in Kennedys’ cyber and data offering. Formerly with Addleshaw Goddard. Moreno has over 20 years of experience as a data protection, cyber and AI specialist. She has worked with a broad range of UK and international clients, with a sector focus on technology, financial services and fintech, healthcare and life sciences and retail and consumer.
“Nathalie is a trusted adviser in the global privacy and data protection space with both a business-driven and technical mindset,” said Tom Pelham, partner and Kennedys global head of cyber and data. “We are thrilled to welcome her to our team. Her wealth of knowledge and proven track record will be instrumental in guiding our clients through the increasingly complex landscape of data, cyber and AI obligations. She will play a key role in helping our global team deliver comprehensive solutions to meet all our clients’ data, cyber and AI requirements.”
Moreno commented, “I am excited to join Kennedys at such a pivotal time, as the firm continues to expand its global cyber and incident response practice, and sets it sights on establishing an equally cutting edge, global data protection practice.”
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 Weekend – the LegalDiarist is heading off to be drenched in Dorset!