Edward Fennell’s Legal Diary – Edition 32

Friday October 30 2020 Edition 32

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

SHORT THOUGHT FOR THE WEEK

WRITS OF UNPOSSESSION?

With the ending of the furlough scheme things are about to get very tight for many of our fellow citizens. But this is just the start. There is going to be a heavy reckoning for the cost of Covid-19 over the winter and tensions will surface which have no easy solution in law.

For example, David Smith, a partner at JMW Solicitors highlights that following an intervention by Robert Buckland, the Lord Chancellor County Court Bailiffs and High Court Sheriffs are declining to enforce warrants and writs of possession. That is entirely understandable and, you might say, compassionate. However there’s a catch. “The problem with the Government’s approach is that it is almost certainly unlawful,” says Smith. “It is not open to Bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so. They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.”

 Mind you, we are now becoming accustomed to this government not being too concerned with the niceties of what the law requires. So maybe anything goes.

The LegalDiarist

IN THIS WEEK’S EDITION

+ LEGAL DIARY OF THE WEEK

– Mishcon de Reya

– Pinsent Masons

– Hodge Jones & Allen

– Kennedys

+ CAMPAIGN OF THE WEEK – LEGAL AID IN PERIL

+ LEGAL INSIGHT OF THE WEEK – NEW JOMATI REPORT POINTS TO PRACTICALITIES OF ‘BUILDING BACK BETTER’

+ THE LEGAL DIARY’S ‘WORTH A WATCH’

+ STEVEN HEFFER Collyer Bristow’s Partner and Painter

THE LEGAL DIARY OF THE WEEK

Mishcon States its Position

As has been widely reported, Mishcon de Reya played a key role in setting the scene for the EHRC investigation into anti-Semitism in the Labour Party. The publication of the investigation’s report yesterday could have left no-one in two minds about the culpability of the party. Not surprisingly then the firm was feeling vindicated in its campaign in conjunction with the Jewish Labour Movement.

“Over the past two years we have worked with the JLM and whistleblowers from within the Party,” the firm said in a statement immediately after the EHRC report was published. “We have been repeatedly reminded of their bravery in fighting antisemitism, often against the backdrop of abuse and gaslighting.  That bravery led to powerful submissions being made to the EHRC, which were accepted: the pain of the targeted members has finally been acknowledged.  The EHRC has set out where the Labour Party has fallen short of its legal obligations.  We join our client’s call for the party now to adopt appropriate systems and political and cultural change to ensure the protection and lawful treatment of all its members.”

The Labour Party is now under new management and significant institutional and systemic change can be expected. How far individual members change their attitudes (notably a certain J.Corbyn) clearly remains a different matter.

Vario on the Go

Another sign that the legal profession can continue reinventing itself comes with the news that Pinsent Masons is bringing Vario, its ‘flexible resourcing’ business, in from the cold and bundling it up with a range of other consultancy services to sit alongside its mainstream legal practice.

“For some time now there has been a move away from the idea that the provision of legal services is mainly about ‘black letter’ law,” commented Matthew Kay, the Managing Director of Pinsent Masons Vario “ More and more, we and our competitors are called on to play a central role in responding to broader business issues through the provision of technology, or the delivery of managed legal services. While flexible services have been a game changer in recent years – enabling businesses to dial resource up and down in line with day-to-day needs – this offering alone will not be the only solution required by clients as they grapple with increasingly complex business demands.”

What exactly are these non-black letter law areas of expertise? They include activities as varied as legal technology, diversity and inclusion, project management and the resourcing and management of legal services. So quite a mix.

“Legal services have been transformed in recent years by increasing client demand for a flexible and solutions-based approach to legal and commercial challenges,” said Richard Foley, the firm’s Senior Partner.

So welcome to the new lawyer – fixer-in-chief.

Judicial Review under Threat

Worries are growing that reforms envisaged by the current Independent Review of Administrative Law might result in restrictions being placed on the scope of judicial review. “These reforms appear to be premised on the notion that basic judicial review principles have taken a wrong turn over the last 40 years,” said Alice Hardy (above), Partner and Civil Liberties Solicitor at Hodge Jones & Allen, “Indeed, the period which the review calls into question arguably spans back well over a century. It is not a simple exercise to examine a body of jurisprudence [which is] this large and suggest remedies for those aspects that government bodies find uncomfortable, nor is it one that should be undertaken lightly.”

Hodge Jones & Allen says that it recognises improvements are possible and it would welcome a review of the rules in judicial review proceedings – but not as a means of controlling costs, as appears to be proposed. “There are already sufficient powers available to deal with unmeritorious claims,” the firm points out. “Limitation periods could also be reviewed to ensure individuals are not disproportionately disadvantaged.”

Hardy went on to say, “We see no justification for restricting access to justice still further, still less in such a wholescale, radical way, save for the Government’s evident wish to limit the courts’ ability to reach decisions that are embarrassing or inconvenient. There can be no doubt that to do so would disproportionately affect the vulnerable and disadvantaged. Ultimately, better quality government decision-making; better training, supervision and care would reduce the need to resort to judicial review, without threatening the courts’ practical ability to uphold the rule of law.”

Trust Boris in a self-driven car?

Is the Government’s plan for another ‘world leading’ technological advance going to stall? Now that ‘track and trace’ has been lost somewhere in Manchester (or was it in Liverpool – who knows) autonomous vehicle technology has been touted as the country’s next big spin. How worrying then that international law firm Kennedys has flashed a warning sign that the Government has a number of obstacles to negotiate if it is to avoid skidding off the road.

For Kennedys ‘consumer confidence’ in the technology will be key – and that is not forthcoming yet. In fact, its own research shows that “Public acceptance of widespread autonomous vehicle technology is far from guaranteed and that without it, governments around the world will struggle to implement the technology.”

Equally important though is that the legal framework around self-driving cars will need be significantly upgraded to make it fit for purpose. “The Government’s ambition to place the UK at the forefront of new technologies, and data-driven innovation is clear and commendable,” says  Deborah Newberry, Head of Corporate and Public Affairs at Kennedys, “However, that shift requires a suitable policy framework to achieve those aims and, in particular, address concerns around public safety, where the liability rests when accidents occur and data security. Faced with these challenges, the Government must establish a trusted data framework and listen to the views of end-users in order to realise its vision of technical leadership.”

All of these concerns have now been put to the Centre for Connected and Autonomous Vehicles on the Safe Use of Automated Lane Keeping System (ALKS) as it ponders what should happen next. Probably the best suggestion is ‘Slow Down’ .

Editors Note: Thatcham Research and the Association of British Insurers (ABI) are urging the Government to revise its plans to introduce Automated Lane Keeping Systems (ALKS) onto UK roads in early 2021 because it will put road users’ lives at risk.  “The Government should undertake further work with insurers and the automotive industry to ensure road safety is fully considered before introducing Automated Lane Keeping Systems,” it says.

CAMPAIGN OF THE WEEK – LEGAL AID IN PERIL

CILEx (The Chartered Institute of Legal Executives) has added its voice to the growing protests in the profession at the cuts to legal aid and the consequences which follow.

Responding to the current Criminal Legal Aid Review inquiry CILEx says, “Funding cuts caused by LASPO have not only compromised recruitment by disincentivising talented practitioners from pursuing career paths in legal aid provision but have also undermined retention efforts as underfunding and under resourcing leads to widespread issues such as incessant court backlogs. As a result, working arrangements within the legal aid market have grown increasingly dependent on a limited pool of providers to provide an unrealistic level of output, worsened by new initiatives, such as extended opening hours for the court estate. Without sufficient funding to resolve the root cause of these shortages, solutions such as extended operating hours are simply unsustainable.”

CILEx recommends earlier access to payment for legal aid work to help financially precarious firms, “In order to help safeguard income streams, manage risk and protect the financial longevity of providers in supplying legal aid services.”

CILEx President Craig Tickner, himself a specialist criminal defence advocate, says. “The precarious financial stability of legal aid firms pre-dates the current Covid crisis. For as long as we can remember we have been calling for proper funding and additional resources, engaging with review processes such as the Criminal Legal Aid Review. With Covid-19 now hovering over remaining providers like the grim reaper, action is needed now. Any delay will be too late.”

LEGAL INSIGHT OF THE WEEK

NEW JOMATI REPORT POINTS TO PRACTICALITIES OF ‘BUILDING BACK BETTER’

As the light at the end of Covid tunnel seems to recede by the day there seems to be an even greater sense of urgency about the need for ‘building back better’. After all, from all this pain surely some gain must be derived?

Leading legal business consultancy JOMATI has just published a guide for lawyers about how it might be achieved using the structure of ESG (environmental, social and governance)as a guide. As Jomati’s Tony Williams explains, “A common theme to emerge from this economic and social catastrophe is that the world economy that arises from the shadow of COVID-19 should be ’better’ than what has gone before. Helpfully, ideas about what might constitute ‘better’ are now coalescing around the existing concept of environmental, social and governance (ESG). This broad concept offers a useful framework, that organisations can draw on to enact positive change across a broad range of societal issues. Besides helping organisations respond to the challenges posed by COVID-19, the ESG framework can also help them respond to other societal problems, including the climate emergency and endemic racial discrimination, starkly highlighted by the Black Lives Matter movement. Organisations who wish to commit to building a ‘better’ future therefore benefit from having an organisational ‘shorthand’, which allows them to signal to the wider world their intention to do so.”

Williams goes on to argue that in the light of ESG’s growing global importance, “We believe that lawyers and law firms should familiarise themselves with the concept as a matter of urgency.” As he points out, law firms should expect to see far greater scrutiny of their own ESG-related behaviours during tenders, particularly in relation to employee diversity. But, he says, the legal sector already has a ‘positive story to tell’ in relation to ESG because ‘Many components of the ESG concept are based on statutory rules. This means that many lawyers are already helping their clients achieve their ESG objectives, simply by doing their jobs.’

In fact, due to the way diverse ESG concepts are already ‘given force by quasi-legal means, such as industry codes of conduct, reporting obligations and international agreements’ the provision of advice to clients on how to comply with such rules could become a growth market for law firms. “This type of service line expansion illustrates how, for law firms, performing a social good and generating new sources of revenue do not need to be mutually exclusive activities,” says the report.

This thorough and stimulating publication provides both food for thought and plenty of practical examples based on deep sectoral knowledge. Definitely worth investigating.

NOTE: Reimagining your business in a post COVID-19 world: rebuild better is the 20th in a series of reports on key issues facing the legal sector published by Jomati Consultants LLP.

For more visit www.jomati.com or email Tony Williams directly (tony.williams@jomati.com) to receive a copy of this or any other report.

THE LEGAL DIARY’S ‘WORTH A WATCH’

 FUNKE ABIMBOLA MBE

Another ground-breaking female lawyer featured in the series of video interviews by ‘First 100 years’, Funke Abimbola MBE is the former UK General Counsel of Roche, the world’s largest biotech company, who has used her voice to champion equality and diversity in the legal profession. In June 2017, Funke was awarded an MBE for services to diversity in the legal profession and to young people.

Length 6’40” Available at

For more go to www.first100years.org.uk

MORE THAN THE LAW

STEVEN HEFFER – PAINTER/LAWYER/ PAINTER

In the first in an occasional series we look at the artistic career of STEVEN HEFFER, partner and Head of Media and Privacy at Collyer Bristow who qualified at the Slade and is still deeply an artist at heart

“The year I was born the Arts Council held an exhibition of Abstract Impressionism which brought together artists whose work represented both Abstraction and a painterly interest in colour, touch, light and space,” explains Steven Heffer who manages to combine two very busy careers as both a leading lawyer and an exhibiting artist.
“Interestingly, that seems to  sum up the kind of work I produce. In 2016 I collaborated with well-known art critic and writer Edward Lucie – Smith on an exhibition and book entitled Steven Heffer, A Very British Modernist. I had never thought of my work in that way, but Edward L-S described me as a modernist, which I think is right. I have a particular interest in mid 20th `century British painting. It was that interest which led me to the Slade School of Fine Art, the work of William Coldstream and Euan Uglow in particular. My training there in the early 90’s was largely in the life room and based around rigorous observational painting.
“I grew up in Greenwich, South London and for many years painted the river Thames and the industrial buildings along its banks. This led to my work becoming increasingly abstract, but it still based upon landscape. My first job was in silk screen printing. I could easily have pursued a creative career, but a junior position in a law firm led me to train and qualify as a solicitor and advocate. I went back to art studies after qualifying.
“I still concentrate on landscape , sometimes urban, sometimes the countryside, often around East Sussex where my studio is. Also pure abstract compositions although as Edward L-S commented these often have ‘representational bones’.
“I joined Collyer Bristow as a partner in 2003, and its long connection with the art world and [the firm’s in-house] art gallery was one the factors involved in that decision. I later became the lead partner in the gallery, working with its curator Rosalind Davis in connection with exhibitions and prizes. We have run a very popular art prize for art school graduates in recent years. I have exhibited at the gallery but it focuses on contemporary art often from emerging artists.”

Edward Lucie Smith on Steven Heffer’s work

“When one looks at Steven Heffer’s work, one simultaneously thinks oftwo very different, and apparently opposed things. The first is that he is avery British artist. What he does is directly relatable to artists who formpart of the British historical tradition — in particular, to the British artisticrelationship to landscape. Though he paints in a different medium,comparisons are possible with the great watercolourist, John SellCotman. Even, on occasion, one is made to think of the sketches thatJ.M.W. Turner described as ‘Colour Beginnings’. There is a whole trove ofthese radical experiments in the collection of the Tate.Heffer is also indubitably a Modernist — a painter who is directly relatedto the main current of the Modern Movement, now being challenged bymany artists who would prefer to wash their hands of radical Modernistways of seeing, or in fact re-seeing, the world, and who now are happy tobe labelled Post Modernists. In this sense Heffer can be regarded as adirect descendant of John Piper, who also managed to keep a foot inboth traditions.

What Heffer does seem to romanticise is not what he finds on land, but inthe sea. His studio is near Eastbourne, and among his most frequentsubjects are the white cliffs of the South Downs, plunging directly intothe English Channel. Where Turner is a painter of storms, Heffer prefersthe sea when it is at it calmest, serving as a mirror to the chalk cliffs thatborder it. By inviting, or even forcing,the spectator to `see the world differently’, Heffer very much belongs to the High Modernist tradition.”

Edward Lucie-Smith

Art Historian, Author & Critic

For more go to: https://www.stevenhefferart.com/

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