Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
8 November 2024
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: A LEGAL FIRST?
There is just one final, intriguing (and scarcely believable) twist in the Trump election story and one which will certainly constitute a legal precedent
What will the felon face when he comes up for sentencing for his various convictions towards the end of the month?
It has been mooted that a nominal one day in jug might be sufficient to make the point that no-one, not even a President Elect, should get off scot-free. But prison reformers will normally argue that anything less than six months imprisonment is entirely pointless.
So maybe the only apt punishment would be a couple of days of unpaid community service – in Washington, in January, clearing up after the inauguration.
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– Can’t Get No AI Traction?
– Hermer Talks Tough on Ukraine
– Sounds Good to Burges Salmon
– Kirkland & Ellis Digs Deep for Tour de Law
+ LEGAL COMMENT OF THE WEEK
on the Church of England, the Budget, tackling fraud, higher education fee hike, transparency in the family courts.
+ APPOINTMENTS OF THE WEEK
at Russell-Cooke and Clarke-Willmott
LEGAL DIARY OF THE WEEK
Can’t Get No AI Traction?
With the letters AI now running through business discussion like a seaside rock there is a growing gap between organizations’ aspirations to implement the new technology and their actions to do so. ‘Laws of AI Traction’, a new report just out from Dentons, examines why.
“AI is near the top of every boardroom agenda, but there is a significant gap between ambition and action,” said Dentons’ UK, Ireland and Middle East CEO Paul Jarvis. “We asked organisations what they thought their spending on and revenue from AI would be in three years’ time, with most predicting a marked increase in both areas. This suggests that they are pausing investment decisions by a matter of years, rather than months, indicating the extent of uncertainty in the market.
“While most business leaders recognise AI’s potential to transform their business, almost two-thirds of them do not have an implementation roadmap in place.
“With the stakes so high, action to deploy AI needs to rapidly catch up with ambition and optimism. Even though fragmented and rapidly changing regulations across the world are having a chilling effect on AI investment levels, our view is this lack of consistency needn’t cause delay.
“‘AI Traction’, which we distinguish as clear strategic thinking and effective risk management by implementing a robust governance framework, can support positive and progressive AI adoption, unlocking the many benefits this technology promises.”
AI Traction consists of three key dimensions, claims the firm:
- Corporate agility – building strategic and operational capacity to quickly adapt and respond to the opportunities offered by AI;
- Workforce transformation – preparing the workforce for the changes wrought by AI; and
- Digital resilience and data management – implementing sufficiently scalable digital infrastructure and sound data governance for rapid and safe transformation, and a robust data strategy.
Using this three-dimensional lens approach Dentons’ offers some key lessons. Find out more here file:///C:/Users/Owner/Downloads/Laws_of_AI_Traction.pdf
Hermer Talks Tough on Ukraine
Following events in the US this week the LegalDiary team decided to revisit this year’s Bingham Lecture on “The Rule of Law in an Age of Populism” given by Lord Hermer KC, the Attorney General, a couple of weeks ago.
Although it attracted a lot of comment at the time the points he made about Ukarine are worth reflecting on further as President-elect Trump sets out to make good on his promise to stop the war in ‘a single day’ and, what’s more, get it sorted by the time he takes office in mid-January.
“I have dedicated my professional life to fighting for justice and accountability, and nowhere was the need for that more apparent than in my recent visit to Ukraine,” said Hermer. “Despite the unimaginable suffering that the people of Ukraine have endured, they remain clear-eyed about the importance of the international rule of law and accountability. I – and the whole Government – remain steadfast in our support for Ukraine, on the battlefield and in the courtroom. This includes support for work towards establishing a Special Tribunal on the Crime of Aggression against Ukraine. But these systems, and the promise offered by international law, only work when we work in partnership with our friends and partners around the world.”
So which ‘friends and partners’ dis Hermer have in mind? Presumably not the people he described as, “Leaders who see politics as an exercise in division; who appeal to the ‘will of the people’ (as exclusively interpreted by them) as the only truly legitimate source of constitutional authority. Their rhetoric conjures images of a conspiracy of ‘elites’; an enemy that is hard to define, but invariably including the people and independent institutions who exercise the kind of checks and balances on executive power that are the essence of liberal democracy and the rule of law.”
So maybe a bit of a conundrum there. But no doubt the legendary diplomatic skills of Foreign Secretary Lammy will find a way.
Sounds Good to Burges Salmon
The once-thriving music biz in the UK has been going through a torrid time in recent years with venues closing down in droves and earnings on the slide. In schools too music has been taking a bit of a battering.
So it is good to report that Burges Salmon has stepped in to do its bit to stem the decline via its pro bono backing for the Bristol Beacon, a music charity which aspires to be ‘one of Europe’s best, most accessible, performance and music education venues and the UK’s first carbon neutral concert venue’ Target date?2030.
With such an ambitious remit it is no surprise that lawyers have a big part to play. So on a pro bono basis the legal aspects critical to Bristol Beacon’s operations and redevelopment have been taken on by a multi-disciplinary team of experts from across the firm. Commercial, employment and real estate advice have all been part of the mix over recent years including notably for the venue’s grand reopening last year.
On top of that the Burges Salmon lawyers have also undertaken activities such as running a workshop on music rights for young emerging talent. “The support received from Burges Salmon meant that we were able to deliver one of the most ambitious arts regeneration projects in the UK,” said Simon Wales, CEO at Bristol Beacon. “Their support has enabled us to continue to expand our creative learning programmes reaching over 30,000 young people every year, most recently by providing pro bono legal advice following our appointment by Arts Council England to lead the West of England Music Hub in partnership with West of England Music and Arts. The ongoing partnership we have built with Burges Salmon ensures that many more people in our community will benefit from life changing musical experiences.”
Bravo!
Kirkland & Ellis Digs Deep for Tour de Law
The figures are now in from last month’s Tour de Law fund-raiser and it can be revealed that the cracking sum of £165k was raised for Breast Cancer Now – not bad for two days of pedalling on the spot. Mind you, the participants from barristers’ chambers and law firms up and down the land did manage to traverse the equivalent of 12,618 kilometres so full credit to all involved.
As ever with lawyers there was a degree of competition involved and it was Latham & Watkins which came in well ahead of the peleton having clocked up 868 kilometres (which is just under a quarter of the length of the real life Tour de France).
“It is a fantastic event for a fantastic cause,” said Sam Newhouse, Partner and Vice Chair of M&A and Private Equity at Latham & Watkins. “It brings our whole office together for two days – and helps to raise significant funds for a very worthy charity.”
Not only did Latham & Watkins clinch the ‘Go the Distance’ Award, they also generated £18,842 for the charity.
However there is another way to come out on top in the Tour de Law and it was the route followed by Kirkland & Ellis who rode off with the ‘Star Fundraising’ Award for having wound in the remarkable sum of £58,778 in sponsorship – the most a Tour de Law team has ever raised since the event first climbed into the saddle in 2012. (In fact, since then Tour de Law has has raised over £1.1 million for world-class breast cancer research and life-changing support).
Want to be a contender? Register your interest for next year at tourdelaw@breastcancernow.org
LEGAL COMMENT OF THE WEEK
TOPIC: The allocation to the UK Serious Fraud Office of an extra £9.3mn to improve its case management and evidence handling, as part of the government’s attempt to crack down on financial crime.
COMMENT BY: Katie Wheatley, Head of Crime, Regulatory and Fraud, Bindmans
“ In times of strained public finances this extra funding clearly demonstrates the Government’s confidence in Nick Ephgrave QPM , SFO’s Director, to lead the SFO in the fight against financial crime. The Government will expect to see a return on that investment in faster and more consistently successful outcomes. Convictions will lead to sentences for those responsible as well as the prospects of recovery of substantial financial penalties via DPA’s, fines and confiscation. It is interesting this announcement comes hot on the heels of the publication of the Home Office Guidance to organisations on the new ‘Failure to prevent fraud’ offence which has set the clock ticking for corporates to work on fraud prevention procedures that will provide them with a defence to failing to prevent fraud committed by their employees.”
COMMENT BY: Kathleen Harris, Managing Partner, Arnold & Porter
“There is an obvious tension between the Governments aims at de-regulation and increased enforcement by the Serious Fraud Office. The Agency, in recent times, appears to have shifted its focus from dealing with the highest levels of alleged offending and re-focused itself on scams targeting UK investors and consumers. In some senses that approach is correct, but there must always be the recognition, particularly given the increase in cyber involvement in offending, thatany funding should be used to address the global approach to preventing offending harming UK citizens and broader economic interests. Some may say there is no difference between the two but unless the policy effects delivery, the funding will be under–utilised.”
COMMENT BY: Lucy Blake, Partner, Jenner & Block
“In his first year as director of the SFO, Nick Ephgrave set ambitious plans to make the SFO “the pre-eminent specialist, innovative and collaborative agency” leading “the fight against serious and complex fraud, bribery and corruption”. Ephgrave’s plans include “exploring incentivisation options for whistleblowers” and using covert powers to build compelling cases quickly. These big plans are likely to necessitate increased spending. It remains to be seen whether Ephgrave’s proposals for incentivising whistleblowers would require further budget.
It is well known that disclosure continues to challenge the SFO. It remains a huge undertaking, absorbing 40% of its staff and 25% of its budget. Additional funding to improve the SFO’s “case management and evidence handling capabilities should help lighten the load.
Formal reviews commissioned to address extensive criticisms of the SFO in 2022, highlighted “systemic problems of real concern” within the SFO, such as low morale, high staff turnover, concerns with staffing and resourcing, and inadequate technological capabilities. While money will support Ephgrave’s efforts to improve the SFO’s position, money alone is not the solution and Ephgrave will have significant work to do in reinvigorating his staff.
In the first year of Ephgrave’s leadership, the SFO has seen a five-fold increase in dawn raids, five investigations launched, and more than 15 arrests, and 10 individuals charged on 27 counts of fraud, bribery or corruption. The early indications are that Ephgrave is breathing new life into the SFO. Bolstered by an increased budget, these actions suggest the SFO under Ephgrave will be a force to be reckoned with.”
TOPIC: The independent review which has revealed that the Church of England concealed the actions of John Smyth QC, who inflicted severe physical, sexual and psychological harm on young victims during the late 1970s and 1980s.
COMMENT BY: Alan Collins, partner in the sex abuse team at Hugh James, who is representing a number of the victims
“We welcome the report, which makes for sobering reading and is remarkably frank in pointing at the Church of England for its myriad failures that led or contributed to Smyth evading justice.
Smyth was supported in his so called evangelical Christian endeavours by the Church and those influential in it and societally. He of course was a QC of some prominence and was allowed to trade on his position and his connections. He was very much an abuser abusing in plain sight, who was supported and apparently protected for many years. What is made worse is that knowledge of his abusive behaviour stemmed back many years, and it was known by senior people in the Church who failed to act or were it seems ineffectual or half heated in their dealings when confronted with allegations and complaints.
The Church could be accused fairly or unfairly of not treating the allegations of abuse with the determined seriousness that was justified. Its problem is that it knew and failed for some years to act as any competent body would by reporting to the police, and by taking its safeguarding responsibilities with the necessary seriousness. As the report suggests there was a minimisation of the seriousness.
Victims and Survivors have been let down in the worse possibly way. The Church now has an uphill struggle of convincing survivors and victims as well as the Country that it will do right by them. By visibly atoning for what it has done, and by delivering justice – albeit very belated to those that it has harmed. Actions will invariably mean more than platitudes.”
TOPIC: The recent expansion of the reporting pilot which aims to increase transparency in the family courts.
COMMENT BY: Rachel Fisher, Partner at Stowe Family Law
“Since the reporting pilot was introduced almost two years ago, the importance of transparency in the family justice system has increased in prominence, and permanence. The latest expansion of the pilot, following on from changes in January and July 2024, is another welcome step.
From this week, accredited journalists and media bloggers will be permitted to access both public and private law cases in all 19 pilot areas, where only the 3 original pilot courts have trialled private law access since July.
The rapid change in this area shows the success of the pilot scheme so far. This week also offers an opportunity for designated judges to take part in discussions and talks to offer their thoughts and feedback in aid of a ‘Reporting Week’. This is welcome, and I anticipate my fellow professionals will be keen to hear these talks, and to share their experience of the pilot so far.
Moving forward, it is crucial that the family justice system allows itself to be opened to more scrutiny and transparency, to improve efficiency and, importantly the experiences of those going through the system. Although clients may be concerned about the presence of reporters, it is important to reassure them that there are strict rules in place for reporters.
Certainly, there have been circumstances where clients have given consideration to, or have in fact withdrawn their applications due to discovering that the press have sought to be in attendance at their hearing which could have a detrimental impact on the outcome of their case so it is really important that they understand the process around press attendance and reporting to provide them with reassurance and advice on this at the outset of their case that this is a possibility.
With the pace of change in this area, I hope it will not be long before we see a national expansion and implementation of transparency access.”
TOPIC: The government’s announcement that tuition fees will rise by 3.1% to £9,535 next year.
COMMENT BY: Nathalie Jacoby-Danesh, Partner in the Higher Education team, Browne Jacobson
“Raising tuition fees in line with inflation has been one of the biggest government policy priorities for universities as they continue to grapple with significant financial pressures resulting from a cocktail of high inflation, frozen fees and falling student numbers.
“While the Education Secretary’s promise to finally raise fees for the first time in a decade, together with a modest increase in maintenance grants, is welcome, the new amount fails to plug the gap with higher education costs, which is estimated at about £12,500 per student.
“Therefore, universities must continue their drive to maximise their own assets. Success in commercialising research rests upon the development of an innovation lifecycle strategy that is aligned with research strengths, ensures intellectual property is effectively recorded and protected, while keeping an open mind on the best routes to monetising knowledge.
“We expect closer collaborations between institutions to take place, ranging from shared services to formal mergers. We would anticipate institutions to collaborate increasingly in large metropolitan areas or regions across the tertiary sector, or along subject specialism lines.
“With an estimated 40% of higher education institutions to be in budget deficit in 2023/24, restructuring could also become necessary in some cases.
“It will be vital that universities are proactive in their communications with students to offset any impact this could have on their mental wellbeing. Today’s publication by HEPI showed that one-third of students worry about the financial health of their university.
“At the same time, universities need to be attuned to rising fees creating increased student expectations. It’s vital that universities ensure now that student contracts are aligned with CMA guidance and OfS requirements regarding consumer protections.”
TOPIC: The impact of the October Budget statement on the retail, hospitality and leisure (RHL) sector
COMMENT BY: Amanda French, a partner and head of retail and leisure, Clarke Willmott LLP
“The majority of our clients will be left considering the significant impact of the National Insurance contributions (NIC) increase, the decreased NIC threshold, and the increases to the National Living Wage and National Minimum Wage. For an industry with a large number of part-time lower-paid employees, the changes to the NIC result in them paying NICs on earnings above £5,000, representing a cost of no less than £615 per employee, in addition to the increased wage costs.
“In addition, the current temporary 75% business rate discount for retail, hospitality and leisure businesses, available since 2020/21, will be replaced with a less beneficial 40% discount, up to a cash cap of £110,000 per business for 2025/26.
“For some businesses they will see their business rates nearly double on some properties next year and this may be unsustainable. Albeit it has been confirmed that the temporary nature of this discount, reviewed on an annual basis, will cease and will become permanent in April 2026.
“Good news came in the form of a cut to draught alcohol duty, although alcohol duty rates on non-draught products will increase in line with RPI from February next year.”
APPOINTMENTS OF THE WEEK
RUSSELL-COOKE
Conor Brindley has joined Russell-Cooke as a partner in the corporate tax department. Previously with the Law Tax team at EY as well as Magic Circle and other Big Four firms Brindley has more than twenty years of tax experience. He will now work across transactional teams to ensure that tax advice is integrated into advice to clients at all points in their life cycle, from start-up to exit.
Having acted for a range of clients from start-ups to listed companies, Brindley has previously developed a broad practice with a wide range of experience across both corporate and real estate tax matters. He has regularly advised on the tax aspects of mergers and acquisitions, disposals, joint ventures and reorganisations. And within real estate he has provided tax advice to developers, occupiers and investors on their UK property transactions.
“Conor brings considerable depth of experience to the team, which will be invaluable as we grow our corporate tax capabilities.,” said Matt Garrod, Deputy Senior Partner and Head of Real Estate. “His breadth of expertise will bolster our ability to assist clients across the full spectrum of tax issues and throughout the transaction process.”
CLARKE WILLMOTT LLP
Tim Williamson has joined Clarke Willmott LLP as a regulatory partner in the firm’s Southampton office. Formerly with Foot Anstey Williamson grew up in Southampton and graduated in law from the University of Southampton. He is a member of the Rugby Union Safety Association, Football Safety Officers’ Association and the Health and Safety Lawyer’s Association.
Williamson has particular expertise in sport, ports and harbour authorities, retail, the space sector, agriculture, developers and SMEs and the Energy, Infrastructure and Natural Resources sector. He works with businesses and individuals to reduce the risk of regulatory intervention in areas including fraud and white collar crime, police prosecutions, sports governing bodies and spaceport operators and other businesses in the space sector.
“It’s great to welcome Tim to the team,” said Kelvin Balmont, chairman of Clarke Willmott and head of the firm’s Southampton office. “He has an unmatched breadth of experience and knowledge in a range of industries and works to provide the most specialist solutions for his clients. This includes helping them respond to changes in their regulatory landscape and reducing the risk arising from such developments, as well as representing them when faced with an investigation by a regulatory body and/or when threatened with sanction.”
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