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

25 October 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Reparations by whom?

The Abolition of Slavery Act of 1833 had been preceded by a decade or more of petitions from local communities to Parliament for this radical change in British law. While Wilberforce takes the credit much of the agitation on the ground actually came from ordinary folk who were morally outraged by the evil of slavery. Meanwhile many millions of English people were living in a state of dire poverty themselves. Just a couple of years earlier the Swing riots had broken out and continued for months across the southern counties by agricultural workers trying to survive on starvation wages. In Ireland the situation was even worse.

As the debate about reparations for slavery proceeds it will be interesting to analyse who the beneficiaries of slavery actually were and where the sword of justice might legally – and reasonably – fall.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– Lawyers Rev Up for Reeves

– National Association for Law Placement meets next week in London

– Sexual Harassment Figures Understated says Irwin Mitchell

– Designing Out Crime at Leeds Law School

+ LEGAL COMMENT OF THE WEEK

on forestalling illegal immigration, abolishing OFWAT, infected blood compensation, the Yahya Assiri case, harassment in connection with the Manchester bombing, ISID awards.

+ APPOINTMENTS OF THE WEEK

Forsters and Carter-Ruck

LEGAL DIARY OF THE WEEK

Lawyers Rev Up for Reeves

With the budget looming next Wednesday there has been significantly more activity across the Private Wealth, Real Estate, Commercial and Retail, Hospitality & Leisure sectors according to Thackray Williams which has seen a surge in demand from clients nervous about potential tax changes.

“We have seen a more than 200% increase in the last couple of months in enquiries from clients looking for tax advice and especially around the possibility of transferring assets out of their names to take advantage of the current rates of Capital Gains Tax (CGT),” says Elliot Lewis, the Head of the Private Client department.

“It has been widely predicted that Rachel Reeves will increase Capital Gains Tax, potentially from its current rates which range from 10 to 28% to as much as 39%. This has caused an enormous amount of anxiety and led to clients looking at bringing forward plans to transfer assets away to crystalise gains at what may be a cheaper tax rate.”

Corporate and Commercial work has seen a particularly big boost. “We have a significant number of businesses that have deals that were on a relaxed timescale that are now champing at the bit to get them over the line before any tax changes are announced,” explains Nick Gabay, the Head of Department.  “We have also seen a sharp increase in the number of management buyouts and corporate restructuring to trigger a disposal of shares.”

Meanwhile Lewis Glasson, a partner in the firm’s Litigation Department, comments “We have even seen some clients resorting to litigation to try and speed up transactions, for example where a minority shareholder has an action against a majority shareholder and is trying to force the sale of his shares by aggressive threats of litigation.”

Just three working days left until all becomes clear but for many it is three days far too few.

National Association for Law Placement conference next week in London

Major, Lindsey & Africa (MLA), one of the the world’s leading legal search firms and Pirical have announced that the first ever Lateral & Graduate Recruitment Summit will be held by the National Association for Law Placement (NALP) in London on Tuesday of next week at Goodwin Procter’s London office, 10-15 Newgate Street. The event is jointly hosted by Goodwin and Weil, Gotshal & Manges.

 NALP  aims to bring together legal recruiting professionals, law school career service officers, and other legal career professionals from across the United States and Canada so its arrival in the UK marks an interesting step. During the event the challenges and opportunities facing law-firm recruiters in the UK will be scrutinised by a series of panel discussions featuring industry leaders. Employment trends in the market as well as AI and the law and DE&I initiatives will all be discussed.

“Bringing industry professionals together for this event will prove to be an invaluable resource providing a platform to discuss the issues that law firms and legal search professionals are currently facing,” said Nathan Peart, Executive Director at MLA. “We are especially excited to bring NALP’s wealth of US expertise to this first UK event, offering an international perspective that will serve to benefit our UK clients.”

According to Chris Griffiths, Head of Sales at Pirical, “There is nothing like it in the UK and to be a first to market educating our clients is a wonderful opportunity to deepen our relationships with law-firm recruiters.”

 For further information go to MLA NALP UK (mlaglobal.com)

Sexual Harassment Figures Understated says Irwin Mitchell

The number of complaints (not to mention press and social media stories) regarding sexual harassment have been rocketing but even those recorded in Employment Tribunal decisions do not reflect the real scale of the phenomenon according to Irwin Mitchell.

Lawyers at the firm say that while there has been a seven per cent increase in sex-related related employment tribunal decisions so far this year this is far short of what is really happening in the UK’s workplaces.

From this weekend onwards the Worker Protection (Amendment of Equality Act 2010) Act 2023, mandates employers proactively to prevent sexual harassment from occurring in their workplaces by anyone (not just co-workers but the man or women who comes in off the street). Employers facing a claim, could fall foul of an additional uplift on compensation unless they’ve done enough to prevent sexual harassment.

“Although the percentage of claims has increased and looks to be rising further, the numbers are still low compared to the actual number of workers who experience sexual harassment,” said Jenny Arrowsmith, Employment Partner at Irwin Mitchell. “For instance, a 2023 TUC poll found that 2 in 3 young women have experienced sexual harassment, bullying, or verbal abuse at work. There are other studies which also highlight that the problem is widespread pointing to the suggestion that these figures are likely to be the tip of the iceberg.”

Designing Out Crime at Leeds Law School

Amidst the debate about bulging prisons and the need to cut crime (especially shop-lifting) Leeds Law School has made an interesting appointment as its new Director of Research.

Professor Rachel Armitage has spent the past three decades making major contributions to crime prevention and public safety thinking. Her unique contribution, though, is her focus on projects which have been aimed at reducing crime through environmental design with a view to shaping planning policies at all levels.

Armitage’s CV includes being a member of the Home Office National Burglary Taskforce and the National Vehicle Crime Working Group. She has also published several books on the subject including Crime Prevention through Housing Design (2013), Retail Crime (2018), and Re-building Crime Prevention through Environmental Design (2019).

Now, in her new role as Director of Research, Armitage will “Support initiatives that reflect the school’s dedication to real-world solutions and its commitment to producing graduates who are equipped for the legal profession in Leeds and the wider region.”

About Re-building Crime Prevention through Environmental Design it was said, “Crime Prevention Through Environmental Design (CPTED) is a practice-oriented approach to reduce the risk of offences such as burglary and fear of crime by modifying the built environment. [This book] explores and extends the common ground between CPTED and situational crime prevention – another traditional approach in the field of crime prevention and security – via the latter’s evolution into the field of crime science.” 

Maybe worth a read and published by Taylor & Francis it’s a steal at £159 a copy.

LEGAL COMMENT OF THE WEEK

TOPIC: The claim that Germany has become a central location for the storage of boats and engines eventually used in illegal immigration Channel crossings

COMMENT BY:  Liz Barratt, Head of Immigration, Bindmans

“This worrying report is yet another reminder of the risks facing people trying to reach the UK safely. Nearly 200 migrants are known to have drowned on dangerous Channel crossings in the last 6 years – the real figure may be much higher. Sadly the UK, along with other European countries, approach the issue from a border control angle rather than trying to tackle the causes that force people to flee their home countries and make such perilous journeys. These causes include war, persecution by States and non state actors as well as global inequality. These are not easy questions to answer but the questions should be asked rather than approaching the issue at the end stage : when the boats arrive or as this report shows sadly do not make it. If the UK government is genuinely committed to reducing numbers crossing the Channel, then the fastest way to do this would be to create safe, legal routes for genuine refugees in need of protection.”

TOPIC: Proposals that the water industry could consider abolishing regulator Ofwat among other measures to reform the sector, after a public outcry over bills, bonuses and sewage pollution.

COMMENT BY: Tom McNeill, Partner, BCL Solicitors 

“It’s a good idea in principle: the Government’s initial position appeared to be (and may still be) to refashion the criminal law into a bludgeon to overcome regulatory decision-making of the past half century.

A key reason for ongoing pollutions of our rivers and seas is the deliberate decisions by regulators and politicians to keep down customers’ bills or otherwise not fund the infrastructure needed to meet the standards which the public now apparently demands.

Threat of criminal prosecution will not magically make available to the water companies and responsible managers the billions needed.

Regulation, including criminal enforcement, in relation to such systemic issues cannot properly be considered in isolation from the central issue of funding.”

TOPIC: The latest  Government announcement regarding compensation for the infected blood scandal. This confirms that applications are now open for £100k interim payments to some of the estates of victims whose deaths have not yet been recognised (previously only surviving victims and some widows on support schemes have been entitled to interim payments).

COMMENT BY: Des Collins, Senior Partner of Collins Solicitors (and legal adviser to some 2000 victims and families involved in the infected blood scandal)

“Whilst the Government is keen to stress that this is the first time this group will be compensated and that it expects to make payments by the end of the year thus fulfilling its obligations under the Victims & Prisoners Act, this statement is somewhat disingenuous and there are many concerns which remain unresolved.

“This sweeping announcement belies the fiendishly complicated system that many victims will now encounter.  According to the Regulations, approved by both Houses this week, applications will only be accepted if the personal representative of an estate already has a grant of representation (Probate or Letter of Administration). Most of those personal representatives with a grant will, in any event, need dedicated legal support to navigate the complexities of probate which include their own legal obligations to the beneficiaries and any mistakes for which they may be personally liable. Personal representatives have a legal obligation to distribute an estate in accordance with the will or the rigid intestacy rules and those Rules have not changed.

For those who may be able to apply for a grant, simple applications usually take several months to get through the Probate Office and more complex applications significantly longer.

A more significant issue, however, is the number of estates (many of which are more than 30 years old) where no grant was obtained (often because there were no assets), or where the original personal representatives have long since died, or are no longer in practice, or are now unable to take on the responsibility. Unfortunately, it is still not clear whether and/or how independent legal and financial assistance will be provided, despite the Government’s acceptance of both Sir Brian and Sir Robert’s recommendations.  This simply adds insult to injury and causes significant and unnecessary distress to an already traumatised community.

“We believe our affected clients will go from elation to bitter disappointment when they realise the practical steps involved. Their struggle for financial recognition and justice will go on, despite the Government claiming that long-promised compensation is now a reality.”

TOPIC: The decision of the High Court in London to issue an order that Yahya Assiri, a pro-democracy and human rights activist, can serve his claim on the Kingdom of Saudi Arabia regarding the targeting of his mobile devices and their infection by Pegasus and QuaDream spyware,

COMMENT BY: Monika Sobiecki, Partner, Bindmans LLP (which acts for Assiri)

“This is a huge moment for Yahya Assiri’s case, where the High Court has accepted our evidence that Yahya has a reasonable prospect of winning his claim against the Kingdom of Saudi Arabia, and thus has granted permission for the claim to be served out on the state. The High Court has thus sent a powerful signal that states cannot shroud their conduct with secrecy and avoid accountability for the transnational repression of dissidents.”

TOPIC: The success of the two survivors of the Manchester Arena bombing in winning a High Court harassment case against a former television producer who claimed the attack was staged.

COMMENT BY: Hanna Basha, Partner, Payne Hicks Beach

“It is incredibly rare for the court to find that a defendant has abused media freedom. The judge sent a strong signal that conspiracy theorists would not be tolerated in the UK courts.  It is a significant step forward in tacking the real harm caused by misinformation.” 

TOPIC: This week’s judgment in the Court of Appeal on the Infrastructure Services Luxembourg vs. Spain case 

COMMENT BY: Jehad Mustafa, Partner, Farrer & Co

“This is an important case as it lies as the intersection of public international law, EU law and English law.  The Court of Appeal’s judgment makes clear that the registration of International Centre for Settlement of Investment Disputes (ICSID) awards in England is not open to challenge on State immunity grounds, although State immunity remains an important consideration for the enforcement and execution of the same awards.

 “Had Spain [and Zimbabwe] been successful, it would have provided States with a major opportunity to challenge the validity of ICSID awards, and would have given investors looking to enforce those awards, a further obstacle to pass.  

 “Spain’s decision to pursue this matter in the Court of Appeal appears to have been attempt to open up another front, by requiring the English Courts to allow it the opportunity to challenge the jurisdictional basis of the ICSID awards made against it at the recognition stage.  Had Spain succeeded, it would have been a significant development.  

 “Interestingly, the Court of Appeal’s judgment relies heavily on the approach of other countries to similar issues.  The Court of Appeal noted how the courts of Australia, New Zealand, the United States, France and Malaysia have all interpreted the ICSID Convention, and found the similar approach of those States to be “of considerable persuasive force.”  The Court of Appeal praised the approach of the High Court of Australia in particular, which has already handed down judgment against Spain for the very same award, and its approach stands in contrast to other recent English Court decisions, which have declined to follow the approach of the courts of other States, even where the facts and underlying treaties have been similar.

 “Ultimately, this case is another setback to Spain in its ongoing challenges to the awards made against it.  However, I doubt that this will be the end of the story.”

APPOINTMENTS OF THE WEEK

FORSTERS

Tracy Evlogidis is to join Forsters as a Partner to provide a significant boost to the firm’s Immigration offer. Ranked in the Legal 500’s “Hall of Fame” she has been recognised as a “Leading Individual” in various Chambers & Partners directories based on over 25 years’ experience heading immigration practices at Withers and previously at Harbottle & Lewis, Speechly Bircham (now Charles Russell Speechlys) and Morgan Lewis.  

With a significant track record of delivering successful results for complex citizenship and residency applications Evlogidis has worked closely with the Home Office while being regularly consulted on policy and legislative proposals.

 ‘The recent change in Government and generally emotive mood around UK borders have pushed immigration issues towards the top of the business agenda,” she says.  “Post Brexit we have a pretty challenging set of circumstances both for corporates and high net worth individuals and against this backdrop Forsters felt like absolutely the right place from which to serve my clients.” 

CARTER-RUCK

Tom Cameron is joining Carter-Ruck as an International Arbitration partner Formerly with White & Case LLP’s International Arbitration team and having practised in Paris and London, Cameron is an experienced international disputes lawyer working with contracts from a wide array of different governing laws and both civil-law and common-law jurisdictions. He has represented clients in numerous high-value commercial arbitrations, as well as in disputes under investment treaties.

 While spanning numerous industries (including energy, metals/mining, construction, technology, telecoms, manufacturing, pharmaceuticals, and private equity) Cameron has particular expertise in disputes in the energy sector (oil and gas and renewables) and has regularly represented some of the world’s largest energy companies in sensitive, high-value disputes for many years. He also has substantial experience in disputes about pricing and valuation.

‘Tom’s arrival builds on and strengthens our International capability as we continue to deliver a wide range of dispute resolution services to multinational companies, sovereign states, global media networks, international banks and UHNWs.,” said Cameron Doley, Carter-Ruck Senior Partner.

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