Edward Fennell’s Legal Diary – Edition 34
Friday November 13 2020 Edition 34
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK
– DIVIDED WE STAND?
News that The Law Society of Ireland has decided that England-and-Wales-qualified solicitors will no longer be able to obtain Irish practising certificates unless they work in the country has thrown a massive spanner in the works of London law firms who thought that they had a Dublin backdoor into the EU.
But there is an echo here of the complacent view of Brexiteers that the Northern Ireland border was not going to be a major barrier to a smooth withdrawal process. Almost one hundred years after Eire departed the UK the hard fact is coming home that, hey, these are two different jurisdictions and Ireland cannot be taken for granted.
How this plays out remains to be seen but – as in Scotland also – Brexit is crystallising the message that the word ‘united’ is an almost bust stock in these islands.
The LegalDiarist
In this week’s edition
+ THE LEGAL DIARY OF THE WEEK
– Bingham Boffs the Bill
– Memery Crystal Mentor
– Break through to the Law Industry at DWF
– Food Glorious Food?
+ ON-GOING SAGA OF THE WEEK – DIGGING INTO DEPP
+ LEGAL INSIGHT OF THE WEEK – WRITING AT WILL
+ LEGAL COMMENT OF THE WEEK – POST-CONNERY
+ BLOGS FROM FORSTERS
THE LEGAL DIARY OF THE WEEK
Bingham Boffs the Bill
It may seem as if we are retreading old ground but the proposed violation of international law embodied by the current Internal Market Bill is so significant that it cannot be allowed to drift out of awareness – especially now given the chance of a re-set in Downing Street.
As the Bingham Centre for the Rule of Law points out in its new publication United Kingdom Internal Market Bill, House of Lords Committee Stage: A Rule of Law Analysis of Clauses 44-47 “The Government is asking Parliament to legislate incompatibly with the Rule of Law in two respects.
“First, the clauses involve a deliberate breach of the UK’s international obligations. By removing the entrenched legal protection that the UK promised to provide for certain rights in the Withdrawal Agreement, and adopting measures which could jeopardise the achievement of the objectives of that Agreement, the Bill is also itself in immediate breach of clear obligations which the UK voluntarily and very recently assumed in Articles 4 and 5 of the Withdrawal Agreement. A breach of the rule of international law is still a breach of the Rule of Law.
“Second, the clauses seek to immunise those ministerial regulations from any meaningful legal challenge, placing them beyond effective review by the independent courts. Preventing access to courts to challenge the legality of ministerial actions is also a fundamental departure from the Rule of Law.”
As Lord Judge said in the bill’s 2nd Reading in the House of Lords.“The rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it. When those responsible for making the law—that is, us the Parliament, we the lawmakers, who expect people to obey the laws we make—knowingly grant power to the Executive to break the law, that incursion is not small. The rule of law is not merely undermined, it is subverted”.
Thanks for the Memery Crystal Mentor
Lesley Gregory, (pictured above) chair of law firm Memery Crystal, has been named ‘Mentor of the Year’ at the Women in Law Awards 2020, in recognition of her work in elevating women working both in the legal profession and in mentoring female founders and entrepreneurs. This follows recent success as ‘Legal Adviser of the Year’ at the Women in Finance Awards and being highly commended by the Law Society’s Excellence Awards. She is also the founder of a successful female entrepreneurs’ network, the ‘Women in Business Network’.
“Mentoring is the cornerstone to success,” she says, “and it is vital that women support other women both personally and professionally, regardless of seniority in a company. I’ve worked in law for over 30 years and have mentored many female solicitors and other members of staff at all stages of their careers, sharing the insight of my experience and encouraging them to excel.”
But then, one asks, who mentors the mentors?
Break through to the Law Industry
It remains to be seen how this generation of locked–down students will respond to the image of life in the City as presented by the new TV series INDUSTRY. However DWF is doing its bit to inject some insights into reality through its new work placement scheme for Black, Asian and Minority Ethnic individuals who aspire to pursue a career in law.
The firm’s Ethnic Minority Access Scheme, has been developed with the organisation Aspiring Solicitors to “help six individuals from Black, Asian and Minority Ethnic backgrounds gain valuable paid work experience at a global legal business, over a period of one week.”
During the placement, candidates will undertake live legal work and will be paired with a supervisor and a mentor in DWF’s commercial practice in either London or Manchester. The first group will begin the programme in April 2021 and DWF will run the programme yearly.
Seema Bains, Partner & Head of Diversity & Inclusion Leadership Group at DWF said, ” Unfortunately our industry still does not reflect the society we live in, and that really needs to change. This targeted programme will hopefully give candidates the opportunity they need to gain exposure to commercial law in practice and help progress their legal careers. .”
Chris White, CEO and Founder of Aspiring Solicitors, said, “This scheme demonstrates a tangible commitment and focus for improving access and opportunities for under-represented groups in the profession. Both Aspiring Solicitors and DWF look forward to the positive results that flow from this scheme.”
Maybe they should make a TV programme out of it.
Food Labelling post-Brexit – Not so tasty
BoJo and Govey might have thought that the pandemic would give the Government cover for the lack of preparation for January’s Brexit – after all, who’ll notice seven miles of tailbacks to the port when there’s a ten mile tailback of ambulances to the hospital? – but, willy-nilly, food and beverage exporters are at the sharp end of the need for change.
For example, as law firm Clarke Willmott LLP has just pointed out, producers of organic food products face export restrictions and other labelling requirements until such time as the EU approves the UK’s organic food regulatory regime. If the UK does not achieve recognition equivalency from the EU, then exporters of organic food will not be able to export organic food or feed to the EU from 1 January 2021.
Moreover as Amy Peacey, a senior associate at Clarke Willmott observes, new labelling rules will apply to other food exported from Great Britain from 1 January 2021. “From this date, exporters will need to have in place new packaging compliant with EU regulations in order to sell their goods legally to customers in the EU.”
This means that from 1 January 2021 food exported to the EU must follow these requirements:
+ Food and drink products may not use any EU emblems or markings on their labels;
+ UK food must not be labelled as origin EU from 1 January 2021; and
+ The address of an EU importer or food business operator will be required on labels of pre-packaged food.
Reading the label will suddenly take on a whole new meaning.
ON-GOING LEGAL SAGA OF THE WEEK
DIGGING INTO DEPP
Discussion about the Depp libel case is likely to rattle on for some time among the general public and the legal industry alike. Farrer & Co.’s regular newsletter INSIDE REPUTATION has carried an incisive analysis this week from associate OLIVER LOCK about the pros and cons of going to court over libel matters – and in particular Depp’s decision to do so. It is too long to reproduce here in full but the points below struck LegalDiarist as particular worthwhile,
BENEFITS of going to court
England’s claimant-friendly libel laws has given London the moniker of the “libel capital of the world” where high-profile individuals are regarded to have a better chance of successfully challenging defamatory allegations. Much of this is down to the burden of proof: in England – a defamatory allegation is presumed to be false unless proved otherwise. However, as we have here, where a flawed and unreliable Claimant sits at the centre of a libel claim, then England’s libel laws may not save the day. A great level of detail about Depp’s private life was made public as a result of the trial, but in fact only one thing ultimately mattered: NGN was able to prove that it was more probable than not that Depp was a wife beater.
RISKS of going to court
“This trial focused on serious allegations of aggressive violence. NGN and Wootton only had to prove that it was more probable than not those allegations were true, whereas a criminal court would need to be satisfied beyond reasonable doubtthat they happened. Remember that evidence which might not be considered sufficient in a criminal case could nevertheless get you “convicted” in the eyes of the media and public. Rather than bring a high-profile libel claim, it might be more effective to respond to the allegations by pointing out the absence of criminal charges or a conviction.“
“Succeeding in litigation can be, when boiled down, a flip of the coin. Regardless of the belief in the strength of your claim or the perceived weaknesses in the other party’s position, the fact that a dispute reaches court often means that there is a grey area. Ultimately, Nicol J’s judgment predominantly hinged on how credible he found Depp as a witness. Regardless of the honesty with which Depp may have given evidence, his credibility will undoubtedly have been blemished in the eyes of the Court as a result of the clear extent of his alcohol and substance abuse, not to mention the extraordinary text he sent claiming his former wife was about to get her comeuppance. Nicol J criticised a central theme of Depp’s case that ‘Ms Heard had constructed a hoax and that she had [made the allegations] as an ‘insurance policy’ … in the event that the marriage broke down’. He noted that the fact that Ms Heard donated the $7 million divorce settlement to charity is “hardly the act one would expect of a gold-digger.”
For more on this contact Oliver Lock, or phone the firm on +44 (0)20 3375 7000.
LegalDiarist comment: Oscar Wilde is the poster boy for the disastrous consequence of suing for defamation when one is on shaky territory. How lessons from that case have not been learned by subsequent generations of celebrities remains baffling.
LEGAL INSIGHT OF THE WEEK – WILL THERE BE WRIGGLE ROOM IN THE WILL?
As today’s report in The Times illustrates – focussed on the row in the Lucas family of Newbury over exclusion of a daughter from inheritance – wills are a ready breeding ground for legal disputes. What might initially seem to be a simple affair can rapidly reveal its complexities – especially if, God forbid, a child were to die before the parent. Here , in a timely contribution, Julia Richards of Hunters Law addresses the minefield that is Section 33 of the Wills Act
Wills often provide for a gift “to such of my children as shall survive me in equal shares”, but what happens if a child predeceases the testator leaving issue? Do they inherit their parent’s share or do the testator’s surviving children scoop the pool? It depends on whether section 33 of the Wills Act 1837 applies.
S.33 applies where the testator leaves a gift to a child (or remoter descendant). If that child predeceases the testator, their own children take per stirpes, (i.e a stipulation that, should a beneficiary predecease the testator, the beneficiary’s share of the inheritance will go to his or her heirs) “unless a contrary intention appears by the will”. The clearest form of contrary intention is a clause expressly excluding s.33 but what happens where a will does not contain such provision?
The question has arisen in several cases over the years with conflicting decisions. The issue arose most recently in the case of Re estate of Ellen Beatrice Brackstone [2020] Lexis Citation 318. Mrs Brackstone died leaving a will, which provided that her estate should pass to:
“…such of my children as shall survive me in equal shares namely [Sandra] and [David]”
Sandra predeceased her mother, leaving a daughter, Holly, who claimed that she was entitled to her mother’s share of the estate. However, David contended that the Will excluded s.33 and that he inherited everything.
Having reviewed the case law and carefully considered the construction of the will, the judge declared that the above wording was not sufficient to exclude s.33 and, accordingly, Holly was entitled to a half share in the estate.
The case is a good reminder of the importance of clear drafting and the unwelcome consequences of ambiguity. To ensure that the testator’s intentions are clear on the face of the will, many practitioners choose to exclude s.33 and include an express default gift, leaving no room for doubt.
Julia Richardshas tax and trusts expertise and a particular interest in estate planning, landed estates and heritage property. She also has extensive experience advising on wills, powers of attorney, probate and the administration of estates.
Hunters Law LLP is a leading multidisciplinary law firm founded in 1715 and has been based in Lincoln’s Inn since 1745. Hunters is included in The Lawyer’s top 200 UK law firms for 2019.
LEGAL COMMENT OF THE WEEK
– OH, OH, IS IT A CON?
Sean Connery’s extraordinary career from teenage milkman to Oscar winner was full of drama and it continues after his death with allegations of tax fruad against his wife by the Spanish authorities.Barrister Leon Fernando Del Canto suggest here that this may be another example of Spanish practices.
The Goldfinger case, involving the Connerys is a spin-off of the largest and most mediatic Spanish anti-corruption campaign in history: the Malaya Case. This case, in which over €2.4 billion has been seized and over 50 people incriminated, was effectively a politically-led ‘trophy prosecution’ aimed at exposing numerous corruptions including bribery, embezzlement, tax fraud and influence peddling carried out by members of the Marbella City Council, business people, and prominent local lawyers. However, from my point of view the Connerys were caught in a crossfire and there is very little substance to go after regarding Mrs Roquebrune, Sean Connery’s wife.
Operation Goldfinger was aimed to discover alleged urban planning irregularities arising out of the sale of 73 luxury flats in Marbella on land where the local authority gave planning permission for only five family homes. The properties were built illegally on the site where the former Connery’s property (Malibu) was located, yielding a €53m (£37m) profit after sales.
While the perpetrators of the fraudulent development were identified and judged, Mrs Roquebrune was subsequently accused of tax fraud as part of a tax evasion scheme of around £5.5m. Not having been privy to the case, and according to media reports, the prosecutor stated that she cooperated with her lawyers and other local and international business people to devise a complex corporate operation made of “fictitious legal transactions” aiming to evade corporation tax. The Spanish prosecutor is now claiming £21m over the alleged tax fraud and supposedly the authorities have notified her – but to no avail.
From my perspective, it seems that the prosecutor has gone well over the top. The authors of the original planning fraud, including the Connerys’ lawyers, were judged and are now in jail. They were obviously the ones engineering the fraud and justice has been made.
Trying to connect Mrs Roquebrune, as a final shareholder or beneficiary of the corporate structure, with a direct implication in the case, using the old trick of criminal tax fraud, does not stack up. Better for the prosecutor to have solid evidence, which he doesn’t seem to have, rather than having the media doing the work for him by creating public pressure.
Leon Fernando Del Canto is an international tax barrister practising from Normanton Chambers in London. He is a member of the Honourable Society of Lincoln’s Inn, The Worshipful Company of Tax Advisers, the Association of Taxation Technicians and the Madrid Bar.
LEGAL BLOGS OF THE WEEK courtesy of FORSTERS
Three topical subjects – definitely worth a listen.
+ Six ways to keep your employees engaged and motivated during lockdown by Employment Senior Associate, Joe Beeston (https://www.forsters.co.uk/news/blog/six-ways-keep-your-employees-engaged-and-motivated-during-lockdown)
+ Making redundancies as a result of Covid-19 by Employment Senior Associate, Joe Beeston (https://www.forsters.co.uk/news/blog/making-redundancies-result-of-covid-19)
+ Sustainability in the charitable sector – is social investment the answer? by Charities Counsel, Neasa Coen (https://www.forsters.co.uk/sustainability/sustainability-in-the-charitable-sector-social-investment)