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

4th October 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK:

Last confession

‘To be or not to be’ – that is, literally, the question posed by the proposed Assisted Dying Bill. Hamlet highlighted the benefits of escaping “the oppressor’s wrong, the proud man’s contumely the pangs of dispriz’d love, the law’s delay.” The deterrence, however, was what lay on the other side of the grave.

However,  Alexa Payet, a partner at Michelmores LLP, (who acted on the first and only reported case of relief from forfeiture involving an assisted death), points out that those left behind also feel consequences. ‘At the moment the loved ones of someone who chooses to obtain an assisted death risk losing everything. The forfeiture rule means that they may not be able to inherit anything from their loved one’s estate, including shares in jointly owned property’.

How the proposed legislation would deal with that aspect of assisted dying remains to be seen. But the question about the implications for those left behind as well as those who wish to depart, will clearly have to be debated as this ‘life-and death’ issue unfolds.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– Champion of the Oppressed

– Access to Justice in Manchester

– Apprenticeships Rise Further

– Church Law

+ LEGAL COMMENT OF THE WEEK

on the budget, DFAs and aircraft insurance

+ APPOINTMENTS OF THE WEEK

Twenty Essex and Dechert

LEGAL DIARY OF THE WEEK

Champion of the Oppressed

Almost weekly (if not more often) shocking charges of modern day slavery surface. But it needs dedicated work to secure convictions and compensation for the victims.

A powerful example comes from the work of Liam Symonds, an Associate in Freshfields’ Dispute Resolution practice, who has won the 2024 Wig & Pen Prize (awarded jointly by the City of London Law Society and the City of London Solicitors’ Company) in recognition of his pro bono legal work to secure an award from the Criminal Injuries Compensation Authority (CICA) for a modern slavery survivor.

It took over four years for Symonds and his colleagues to overturn an initial rejection by CICA of a compensation appliaction. But perseverance paid off and in the end a total of £350,000 was awarded – the highest known sum for a modern slavery survivor under the CICA scheme.The client, who had been held captive for more than 26 years, would have found it impossible to achieve without legal representation – all compounded, of course, by legal aid restrictions. The Tribunal acknowledged the comprehensive efforts made by the Freshfields team, stating, “The legal team has put a considerable amount of time and energy into presenting their client’s appeal whilst acting pro bono.”

This was by no means Symonds first success. He is almost a veteran pro bono practitioner having represented numerous pro bono clients, including survivors of torture, race discrimination victims, and humanitarian charities. “I’m delighted to have been awarded the Wig & Pen Prize 2024 in recognition of the work that my colleagues and I undertook in this criminal injuries appeal,” he commented. “The team had put in a lot of effort to achieve this outcome, and we are all very pleased that our client has finally received some compensation for the serious and life-changing injuries that he sustained over such a long period of time. Thank you very much to the City of London Law Society for making this award and I’m also grateful to Freshfields for providing us with the opportunity to have worked on this case as part of our broader pro bono modern slavery practice.”

Access to Justice in Manchester

The new Labour government’s ministers are now starting to put themselves about and that includes the Attorney General Lord Hermer KC who has been up in Manchester hearing about the University’s Legal Advice Centre, ‘Manchester Innocence Project’.

“Being able to access legal services can provide crucial help for those facing some of the most serious and complex legal issues,” said Lord Hermer. “Throughout my career, I have been committed to ensuring access to justice and so it was an honour to be invited to visit the Justice Hub during my trip to the North West. I was extremely impressed by the work and range of services provided there.”

“I spoke with students working in the legal advice centre, who are not only getting real-life experience working in the justice system but who are also providing important services to the people that need it most.”

The Justice Hub was obviously thrilled to be have the AG’s eye cast across it.

“The Attorney General particularly engaged with our students to understand their perspective and experiences, which I know has galvanised and inspired them to continue with their passion for access to justice,” said Phil Drake, Director of the Justice Hub.

Whether that passion for access to justice by the PM and AG will extend to opening a few more courts, a living wage for barristers or a splash of new paint on the prison walls is open to question.

Apprenticeships Rise Further

Another major recruit to support apprenticeships for solicitors is Travers Smith LLP which this week has launched its scheme for entrants next September. And at a time when many students – and, maybe even more so, their parents – are becoming disillusioned with the traditional degree rite-of-passage it is likely to be inundated with talented applicants.

Aimed at school-leavers completing their A levels the scheme is open to anyone from across the UK. Based in the firm’s London office the apprentices will spend one day a week studying for a degree-level qualification with BPP Law School, leading to the award of an LLB (Hons) in law as well as the post-graduate level SQE (Solicitors’ Qualifying Examination). The six-year programme will then offer four one-year seats in core practice areas, followed by two years of six-month placements across all areas of the firm. With full payment of tuition fees and other financial support, what’s not to like?

Added to which, upon successful completion of their apprenticeship in 2031, the 2025 cohort of apprentices will be eligible for an NQ role alongside the graduate trainee entrants.

“As a firm we are passionate about enabling everyone who is interested in a career in law, whatever their background, and who thought that it wasn’t an option for them, to pursue their dreams,” said Travers Smith partner and programme sponsor, Peter Hughes,

“We’re excited about the opportunities our programme will give to our apprentices who will be drawn from a wide and diverse range of talent, representative of our firm, clients and the world in which we live, and we can’t wait to welcome them next year.”

With more and more leading firms introducing apprenticeships – and gaining long term benefits as a result – for a firm NOT to have an apprenticeship programme will soon start to look decidedly odd.

Church Law

Cathedrals are having to re-invent themselves not just spiritually but as centres for social debate. Winchester Cathedral, just down the road from the local law courts – hosting County, Family and Crown Courts – is doing its bit for justice over the next week by running a ‘Law Week Festival: Open Minds’’.

The aim is to offer a broad range of experiences, thought-provoking discussions, and artistic presentations, all designed to open minds and explore the intersections of law, society, and justice. “We invite you to be part of this enlightening and enriching week at Winchester Cathedral, where the law is not just studied but brought to life in ways that challenge, inform, and inspire,” says the cathedral.

All the organs of justice are lined up in support from HM Courts and Tribunals Judiciary and the National Justice Museum through to Donna Jones, the high profile Hampshire Police and Crime Commissioner. Local solicitors Shentonsare also backing it plus many other parts of the legal establishment.

Perhaps the most riveting event though is likely to be the discussion between two writers on the law Andy West, author of A Life Inside (‘Authentic, fascinating and deeply moving.’ Terry Waite) and Lucia Osborne-Crowley, author of The Lasting Harm  about the Ghislaine Maxwell trial (‘Will make you think about trauma in a new light’ EVENING STANDARD). That’s happening next Friday evening and it promises, says the cathedral to ‘bring profound insights into the human experience of our criminal justice system as they discuss to what extent it is working for both perpetrators of crime and their victims’.

To see the full programme go to https://www.winchester-cathedral.org.uk/event/law-week-festival/

LEGAL COMMENT OF THE WEEK

TOPIC: The forthcoming Budget

COMMENT BY:  Basil Dixon, partner, Payne Hicks Beach 

“There is real concern that the Budget will impose the most substantial changes to the taxation of wealth in a generation. Not only for non-doms but also for people who have lived in the UK their entire lives.

The Government has said that it wants to grow the economy but it may find this ambition to be at odds with a tax policy that penalises and targets wealth, or is even perceived to do so. There is a real risk that the very people the Government needs if it is to achieve its economic goals will leave. They certainly have the means and will to go and the departures have already started.

I would strongly encourage the Government to review its proposals and in particular to consider very carefully any tightening of the rules that would make it more difficult for people to pass on capital wealth to their children and future generations. A widening of the scope of IHT will be seen by many as a something they cannot accept. Ultimately, UK tax policy must be driven by the needs of the country and not used as tool to settle old scores. That would be in no one’s interests.”

TOPIC: The current multi-billion-dollar trial between aircraft lessors and leading insurers over who should pay for planes stranded in Russia following the invasion of Ukraine

 COMMENT BY: Garbhan Shanks, dispute resolution partner, Fladgate

“These are complex, hard fought claims where the stakes are high and the long-lasting impact could be seismic. One definite focus point of the trial will be the attempted hospital pass between ‘war’ risk insurers on the one side and the ‘all risk’ insurers on the other. Neither side will want to be left writing the cheques – and that’s because the exposure is enormous.  For context, Covid-19 insurance related losses pale into insignificance compared to these Russian aviation losses, which are ten times greater as an exposure to the insurance market.”

TOPIC The prospect of deferred prosecution agreements (DPAs) coming back with “a vengeance” (according to the head of the SFO) as a new offence which puts the onus on businesses to prevent fraud comes into force (probably next year).

COMMENT BY: Kathleen Harris, Head of the London office and anti corruption practice, Arnold & Porter

“Where there is wrongdoing, any system that promotes fair and effective justice is welcomed as it not only saves costs but stops the ripple effect of protracted proceedings for all those affected by the decision to prosecute. However, there must always be robust safeguards in place to ensure those that wield the sword of justice carry out their roles fairly and as the law envisages. It is also important they don’t go on a frolic of their own and create an unfair system.”

COMMENT BY: Richard Sallybanks, Managing Partner, BCL Solicitors

“It’s no surprise whatsoever to hear that the SFO’s Director sees the incoming ‘failure to prevent fraud’ offence as a shot in the arm for the DPA regime. We’ve seen huge financial penalties imposed through DPAs on companies which faced prosecution for failing to prevent bribery, and clearly the SFO see this new offence as an opportunity to build on that model. The previous SFO Director, Lisa Osofsky, famously lamented the difficulties the SFO faced in holding companies to account for fraud, commenting that she could go after ‘Main Street’ but not ‘Wall Street’, and this new offence makes it easier for big business to be held to account. All eyes will be on the SFO to see how this area develops, but with the new offence not in force until at least Easter next year, we’re still likely to be some years away from seeing whether reality matches the expectation.”

TOPIC: The likelihood that Ofcom will take strong action against tech companies but will have limited power to stop disinformation under the new Online Safety Act.

COMMENT BY: Mark Jones, Partner at Payne Hicks Beach

“Ofcom’s [recent] statement [has highlighted] the lack of power it has to stop the spread of lies. Instead, Ofcom’s focus will be on the rules on content moderation and the removal of illegal content.

Importantly, Ofcom can’t require tech companies to have policies of disinformation, only on content moderation. It was disinformation that fuelled the riots seen across the country a few months ago.

Delay is a real issue here. The Online Safety Act was introduced in 2023, yet Ofcom won’t be in a position to deal with the new powers it has until some point in 2025. Whilst Ofcom chief executive Melanie Dawes says that nobody “wants a regulator that shoots from the hip”, I think most people would want to see a regulator that has an arsenal of weapons ready to be used when necessary. Instead we are to wait until some point in 2025 for the weapons in Ofcom’s possession to be ready for use.

If Dawes is right, then we should expect to see Ofcom taking “really fast” action against tech companies next year. Time will tell whether or not such “really fast” action actually happens.”

APPOINTMENTS OF THE WEEK

TWENTY ESSEX

Karen Petch, the Australian barrister specialising in commercial litigation and arbitration, company and insolvency law, banking and fraud, has joined Twenty Essex and will be based in the UK from mid-October. Prior to coming to the bar, Karen was a solicitor at Allen & Overy LLP in London and New York.  She has been admitted to the roll of solicitors in England and Wales since 2014 and in Australia since 2010.Having been admitted to the New South Wales Bar in 2017, and since 2022 has been registered as a foreign lawyer in the Singapore International Commercial Court. She was recognised in 2022 as a leading young insolvency and restructuring specialist in Global Restructuring Review’s 40-under-40 list. That followed being named ADR Practitioner of the Year at the Australian ADR Awards in the previous year. She is a member of the ACICA legislation committee, and the Australian Bar Association’s international committee. The aim now is that she should bring her expertise and experience as a barrister in the Asia-Pacific region to Twenty Essex’s growing international practice.

“Twenty Essex was the obvious choice for me as I embark on an international practice based in London,” said Petch. “It is a set that is at the top of the market in all of the areas that are at the heart of my work. I am excited to bring my own expertise to this extraordinary group of fellow practitioners.”

DECHERT

Anthony Lombardi has joined Dechert LLP as a fund finance partner in London to help expand its fund leverage capacity across asset classes and bolster its presence in Europe.

Having graduated from the University of Sussex and Inns of Court, School of Law and previously with DLA Piper, Lombardi is recognised in The Legal 500 as “‘a diligent financing lawyer’ noted for his strong ‘technical knowledge’” and as “someone you want on your side of the table”. His experience spans structured finance deals for funds, Collateralised Fund Obligations (CFOs), NAV deals and secondaries fund financing, esoteric structures, and traditional fund subscription lines.

“Having worked on deals in the UK and Europe, I was attracted to Dechert because of its superb reputation for advising on funds with international and cross-border components,” said Mr. Lombardi. “I am delighted to be joining a team that is so well-positioned in the market to provide constructive insight on fund financings”.

Mark Thierfelder, co-chair of Dechert, commented,  “Anthony Lombardi’s extensive and broad-reaching expertise in fund finance, particularly his experience working on Net Asset Value (NAV) deals, will be of tremendous value to our clients.”

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