Edward Fennell’s LEGAL DIARY

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

March 8 2024

Editorial contact: fennell.edward@yahoo.com

Image courtesy of the University of Glasgow

Asking herself the rhetorical question this morning on BBC’s Thought for the Day ‘Why do we still need an International Women’s Day’, the writer Anne Atkins supplied the blunt answer ‘Afghanistan’. Not so long ago there were women in significant roles in the country – not least lawyers. No longer.

Meanwhile a few years ago a celebrating successful candidate for the role of Senior Partner at an absolutely top City firm quietly admitted, “I never thought I would be elected. Why? Because I am Jewish.” His naive interlocutor replied, “Nonsense – you’re a great lawyer and no-one cares about that sort of thing any more.” How wrong could one get!

And then there is Lady Rita Rae (pictured), the senior Scottish judge, who has revealed today that she not only faced resistance because she was a woman but also because she was a devout Catholic (although at least as an Italian by background – as opposed to Irish – she was not a ‘f*****g Fenian’).

Not much to celebrate then (well, just a little).

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Courting Failure

– KP Law – Coming to get You

– Quantum Leap Needed in the Law

– Sick to Death of IPP

CONTRIBUTED ARTICLE OF THE WEEK

Cyber Flashing – What is it? Scott Primmer explains

LEGAL COMMENT OF THE WEEK

on Sexism in the City, he Budget, Amazon and trade marks, AI and copyright, and the declining recruitment of ethnic minorities

APPOINTMENTS OF THE WEEK

at Hodge Jones & Allen

Courting Failure

Amidst all the post-Budget discussion of winners and losers it became clear that the consensus amongst the pundits was that the courts system would be top of the list to feel the pinch.

But there was hardly anything new about this. A survey out this week fromthe Property Litigation Association has exposed just how much under-investment in the county court system has taken place in recent years with a consequent impact, in particular, on property lawyers.

According to the survey

  • Nearly all respondents experienced difficulties contacting the court by telephone following the removal of counter services at the courts and the switch to a centralised call centre.
  • 98% of respondents have experienced county court delays with issuing or processing claims, applications and court orders or delays in applications being heard.
  • These delays result in confusion, uncertainty, wasted costs, and, in some cases, litigants “giving up”, impacting access to justice.

Anyone with recent experience of both opposed and unopposed lease renewals will know just how long it can take to progress these matters through the county courts,” said Paul Tonkin, Chair of the Property Litigation Association’s Law Reform Committee and Partner at Hogan Lovells.

Not only does this create uncertainty for landlords and tenants but, in the case of opposed renewals, court delays can hold up much-needed development.”

Meanwhile Lauren King, Senior Knowledge Lawyer at BCLP LLP and member of the Property Litigation Association’s Law Reform Committee, added, Property owners and occupiers are disillusioned and frustrated with the delays, inaccessibility and inefficiency of the court system. Access to an effective, reliable civil justice system to enable parties to enforce their property rights is crucial to promote confidence in the property market and can also act as an effective deterrent to ensure compliance with legal obligations in the first place.” 

For ‘property’ read pretty much everything else.

KP Law – Coming to Get You!

Andrew Nugent-Smith

Adverts for mega-claims – notably against motor manufacturers – led by law firms now feature regualrly in the press. But it’s not just cars which are the source of discontent – these claims can stretch from workers’ rights and data breach to privacy, investment fraud and financial products mis-selling, and, of course, competition law.

But it needs specialist skills and depth of resource to take on these cases. So the announcement that Keller Postman UK is going to merge with Lanier, Longstaff, Hedar & Roberts to form a high-powered specialist collective redress law firm is an important move in the market. Under the slimmed down, zippy title KP Law the new, merged firm announced that with ‘A commitment to excellence, and a passion for justice, we represent our clients against some of the world’s largest and most powerful corporations’.

They are already shaking in their boots.

“This merger adds new product liability and competition law expertise to our existing workers’ rights, data breach and privacy, financial products and investment fraud and mis-selling practices,” said Andrew Nugent Smith formerly Managing Partner of Keller Postman UK and now the managing partner of the new firm. “In Tom Longstaff and Duncan Hedar, we gain two stellar collective redress lawyers with the ability to develop and progress collective redress cases, and we are incredibly excited by the opportunity to collaborate with The Lanier Law Firm in the US.”

The track record of the two firms is already impressive with a long litany of awards and guide listings. And the list of previous scalps is notable – Volkswagen, Uber, British Airways, Ticketmaster, and Equifax etc. etc. Looks like they can only go from strength to super-power.

Quantum Leap Needed in the Law

Adding to the growing volume of comment on the impact of AI on the law and, in particular, its role in tracking down abuses of copyright, Dr James Griffin, from the University of Exeter Law School, has highlighted the impact of quantum computing suggesting that it could lead to an “exponentially” greater number of re-uses of copyright works without permission. Writing in the journal Intellectual Property Quarterly, Griffin said, “Quantum computers will have sufficient computing power to be able to make judgement calls as to whether or not re-uses are likely to be copyright infringements, skirting the boundaries of the law in a way that has yet to be fully tested in practice.

“Copyright infringements could become more commonplace due to the use of quantum computers, but the enforcement of such laws could also increase. This will potentially favour certain forms of content over others.”

According to Griffin, existing artworks will be altered on a large scale for use in AI-generated artistic works. ‘Enhanced computing power will see the reuse of elements of films such as scenes, characters, music and scripts,’ he added.

As a result of this a ‘quantum paradox’ is developing. There are likely to be more infringements possible whilst technical devices will simultaneously develop to prevent any alleged possible or potential copyright infringements. Content will increasingly be made in a manner difficult to break, with enhanced encryption.

“Meanwhile, due to the expense of large-scale quantum computing, we can expect more content to be streamed and less owned; content will be kept remotely in order to enhance the notion that utilising such data in breach of contractual terms would be akin to breaking into someone’s physical house or committing a similar fraudulent activity.”

Looks like we are just starting out on a mind-blowing, precedent-setting legal journey. Truly this is the new legal Wild West.

Sick to Death of IPP

Thomas White, centre with his son, his (left) sister and Lord Blunkett
(right with White’s grown-up son)

In the wake of the Post Office scandal we are now probably hardened to the reality that crazy abuses of justice are commonplace under the watch of the Government and that whether through torpor or complacency nothing gets done. Until, that is, a critical event occurs.

We may be seeing that in the long running saga of Imprisonment for Public Protection (IPP) by which convicts can see no end to their incarceration. Introduced by Lord Blunkett when he was Home Secretary it is now regarded as a horror-show even by Lord Blunkett himself (as reported recently in the LegalDiary). Yet despite this some individuals are still stuck in the loop. Included amongst them is Thomas White – now in prison for 12 years after stealing a mobile phone – due to mental health difficulties brought on in part by his IPP status. In other words it is a vicious, repeating circle..

White had the misfortune to be given a two-year minimum jail sentence under an IPP just months before this type of sentence was abolished. Yet a decade on he cannot be released. To his credit Lord Blunkett has now given his support to help the family to get Mr White transferred to a hospital where he can access crucial mental health support.

 “My family has now lived for 12 miserable years trapped by this IPP sentence – it is hellish,” said Clara White, sister of Thomas White. “The only apology we have had in the last 12 years is from Lord Blunkett himself. The relentless nightmares of not knowing if my brother will die in prison by suicide are exhaustive. I pray to God we are not next in line to get a call from custody to say my brother has taken his life. I pray no family gets that call. Sadly, many families have already received that call, and will continue to do so in the future as the death rates from this horrific sentence increase.”

 According to IPP campaign organisation UNGRIPP, at least 90 IPP prisoners have committed suicide with the number feared much higher due to the complexities of measuring deaths in the community. The House of Lords is set to debate a series of amendments to the Victims & Prisoners Bill on 12 March 2024, including an amendment, proposed by Baroness Fox of Buckley, which would commit the Government to resentencing IPPs.

Cyber Flashing – What is it? Scott Primmer explains

Monday of next week will see the first sentencing for cyber-flashing. This is the first time that anyone has been convicted in England and Wales for such a crime.  Nicholas Hawkes, 39, of Basildon, admitted at Southend Magistrates’ Court to two counts of sending a photograph or film of genitals ‘to cause alarm, distress, or humiliation’ the Crown Prosecution Service said.

The facts were that the defendant sent unsolicited photos of his erect penis to a 15-year-old girl and a woman on February 9. The woman took screenshots of the image on WhatsApp and reported Hawkes to Essex Police the same day.

Cyber-Flashing , or the offence of sending an unwanted sexual image contrary to S.66a online Safety Act 2023, came into force in November 2023. It has not taken long for prosecutions to start coming before the courts. This is perhaps not a surprise. Research by Professor Jessica Ringrose from 2020 found that 76 percent of girls aged 12-18 had been sent unsolicited nude images of boys or men.  If found guilty, perpetrators face up to two years in prison and entry on the Sex Offenders Register.

The offence requires the following to be proven:

A person commits an offence where they intentionally send or give a photograph or film of any person’s genitals to another (s. 66A(1)). They must either:

  • Intend that the other will see the genitals and be caused alarm, distress or humiliation (s. 66A(1)(a)) or;
  • Send the photograph/film for the purpose of obtaining sexual gratification and be reckless as to whether the other person will be caused alarm, distress or humiliation (s. 66A(1)(b)).

Our main piece of sexual offence legislation is the Sexual Offences Act 2003. Needless to say, the technology has advanced considerably since 2004 and the new behaviours that arise from the advancement of technology often cannot be addressed by the old legislation.

So the new offence of “Cyber Flashing” is an ongoing attempt by the government to create criminal offences which keep up with the pace of technology and the numerous ways it facilitates sexual offending.  S.15A of the Sexual Offences Act – Sexual Communication with a child and the recent offence of ‘Upskirting’ are similar such offences that have been added to the list of criminal offences to adapt to new offending via modern technology.  

Scott Primmer is a senior solicitor at Reeds Solicitors LLP

Anecdotally, we still hear from women in financial firms of all sizes who consider that barriers to progression remain and that it can be harder for women to be recognised, especially after periods of family leave, when it can be more difficult to maintain client relationships which are crucial to progression within a firm.

Asking for salary history – and basing salary offers on that information – risks perpetuating historic pay gaps and particularly discriminates against women, ethnic minority groups, and people with disabilities. Salary history bans have been adopted in the United States, and research there shows that the gender pay gap has reduced in states who have adopted these bans.   

Our general experience is that non-financial misconduct and in particular sexual harassment is being taken more seriously by firms and complaints are more likely in the current environment to be raised, escalated and investigated.

NDAs are still commonly used within settlement agreements on an individual leaving a firm and in some – though by no means all – cases are desirable for all parties, including the victim of harassment (who may want a firm to keep confidential the allegations that the victim has raised). In any event, NDAs will not override a firm’s regulatory obligations to provide a regulatory reference and, where appropriate to, disclose misconduct to a new employer.

This means that hiring firms will be aware of any findings of misconduct before taking on new staff, and where they still decide to make a hire notwithstanding a previous conduct issue highlighted in a reference, would be well-advised to ensure that the individual undertakes appropriate training to address any concerns that may have been flagged in the reference.

In addition to this report, firms ought to be aware of new legislation coming into effect in the Autumn, which will impose a duty on employers to take reasonable steps to prevent sexual harassment of employees in the workplace. This will require organisations to take proactive action to reduce the risk of sexual harassment occurring in their workplace.”

TOPIC: The frequency with which AI models produce content which is copyrighted (for background see https://www.cnbc.com/2024/03/06/gpt-4-researchers-tested-leading-ai-models-for-copyright-infringement.html)

COMMENT BY: Dr Ilia Kolochenko, Partner & Cybersecurity Practice Lead at Platt Law LLP

For most general-purpose LLMs (Large Language Models), it is technically impossible to conduct training without using copyrighted materials: high-quality and copyright-free material is an extremely rare combination. While to train an LLM that would produce good and low-error results, you commonly need a huge volume of high-quality training data.

Per se, there is nothing wrong with utilizing copyrighted content for LLM training – if you have the copyright owner’s permission. Unfortunately, quite some GenAI vendors not only ignore the legal and ethical requirements to obtain such permission, but put great endeavor to keep information about their training data sets and their provenance highly confidential. Worse, when scrapping copyrighted data from the Internet, most data brokers and GenAI vendors also violate terms of services that expressly prohibit data scrapping and its eventual use for any purposes including AI/ML training. This opens the door for many other causes of action for plaintiffs, ranging from breach of contract to unfair competition.

This research will likely bring formidable support to the now-pending lawsuits against GenAI vendors for copyright infringement, moreover, we can expect the number of such lawsuits to balloon. Users of GenAI solutions should also be careful and talk to their lawyers, as they can be the next target of aggrieved copyright owners. While lawmakers will probably also consider enacting new legislation or supplementing the existing one with mandatory requirements to transparently disclose the provenance of AI training data and to demonstrate compliance with copyright law.”

TOPIC: The reduction in the recruitment of ethnic minority candidates last year by leading US law firms

COMMENT BY: Tom Hanlon, Director at Buchanan Law

 “The data supports the general consensus that the legal industry is lagging behind other professional services industries when it comes to D&I.”

“Although there is undoubtedly a sentiment towards progressing D&I initiatives, looking at this data, there appears to be more talk than action.”

“D&I is becoming more of a talking point every month with candidates at all levels, particularly entry-level attorneys. Progress in these areas is a non-negotiable requirement from candidates when considering an employer. Currently, it seems that candidates and employers are moving in opposite directions.”

TOPIC: The UK Supreme Court’s recent ruling regarding Amazon and trade mark infringement

COMMENT BY: Cassandra Hill, Partner and Head of IP Enforcement, Mishcon de Reya

“The Supreme Court’s ruling has provided clear direction on what amounts to ‘targeting’ within the context of advertisements and offers for sale of goods on a retail website and when this will amount to trade mark infringement in the UK in cross-border internet sales.  This is welcome news for brand owners and licensees who operate their business on a licensing basis to ensure that they can enforce against any encroachment on their operational territories.

“In its judgment, the Supreme Court unanimously dismissed Amazon’s appeal and determined that the promotional content and sales offers complained of on Amazon’s US website targeted UK consumers and therefore constituted the use of Lifestyle Equities’ trade marks within the UK (and the EU), thereby infringing those marks. Despite the website’s .com domain and its apparent US focus, the Court found that the offers were targeted at the UK market. This was evidenced by several factors: the messages on the landing and subsequent pages offering to deliver the goods to the UK, specifying which of the goods could be shipped to the UK and a ‘review your order’ page which offered to sell goods to a consumer with a UK address, with UK delivery times and the option to pay in GBP. Although prices and shipping costs were default displayed in US dollars on Amazon’s website, the Court concluded that the advertisements and search page results were clearly informing UK consumers that Amazon would facilitate the shipping of the items to the UK.

“The Supreme Court refused to opine on whether products would infringe if they were sold and delivered into the UK where there had been no targeted advertising and offers for sale as it did not arise in the circumstances of this case and they said that the case law on this point (the CJEU decision in Blomqvist v Rolex) did not provide a sufficiently detailed description of the underlying facts for the Supreme Court to form a reliable view (despite the Court of Appeal having found that products in this scenario would infringe). This may therefore be an issue to be resolved in a future case.”

TOPIC: This week’s Budget statement from the Chancellor

As the UK’s national hub for data science and AI research, any boost to funding for the Alan Turing Institute will likely yield positive results for the UK as it will help to attract and retain leading academics in the space and help to upgrade specialised computing and infrastructure resources.  As a charity, the institute receives various sources of funding as well, primarily from its founder universities and grants from research councils, but this could encourage greater involvement and collaboration with the private sector, which would be very positive.  

If you compare the UK with other countries then on a number of measures we actually appear to be holding ground on AI, even punching above our weight.  It will be difficult but essential to keep pace, however countries like the US and China have much deeper pockets. Closing the skills gap will be a challenge. Recent reports have highlighted this as a key concern against the need for more comprehensive skills training and education, in order to build a larger talent pipeline.  

One aspect to address would be to bring in joined up and thoughtful immigration policies which don’t keep changing the rules in order to attract and retain global talent.  Another thing would be to improve the availability of tax credits and grants to encourage rebate sector R&D, and a third would be to increase investment in developing infrastructure, perhaps through the creation of high performance computing clusters.”  

Any increase of expenditure into the Family Justice System is to be welcomed. However, it needs to be targeted where it is really needed, such as increasing access to the court system and facilitating cases coming to court more quickly than they do at the moment. That means making the online portal slicker and recruiting more judges and providing more courts so they can sit and hear cases.

Whilst making this additional money available it must be spent strategically and in that regard, I hope the Government will discuss its options with all interested stakeholders including family lawyers and family mediators.”

 “The money announced for family courts and criminal justice today is welcome, but it is a drop in the ocean in terms of what the justice sector really needs to get back to working order after years of underinvestment. Court buildings are crumbling, solicitors and barristers are burned out, and victims and defendants are left in the backlogs. Justice delays lead to injustice.

On the day that the Senior Presiding Judge rightly announced a push to hear the 181 rape cases that have been delayed for over two years, it is vital that the system is properly funded so that public confidence in justice can be restored.”

The Budget was notable for the lack of focus in how Britain transitions towards a net zero economy compared to recent years and this perhaps sets the tone for a General Election in which green issues move further down the agenda.

However, there was no rowing back on previous net zero pledges and the Government remains committed to phasing out natural gas from our energy mix.

There has been a lot of discussion about whether it will be renewables, such as solar and wind, or nuclear which dominates the future grid and the Chancellor made it very clear the focus will be on nuclear, with a particular prioritisation of small modular reactors (SMRs).

Yet there still needs to be a discussion about where SMRs will be located and, for the communities based nearby, whether they will be acceptable alternatives to renewable infrastructure, which has sometimes received local challenges.

Moreover, it’s our experience that those against nuclear energy are very active and organised in their opposition to its deployment and any planning applications could get bogged down in legal challenges for many years.

It’s therefore vital the Government swiftly follows its SMR competition with a detailed plan for how it will successfully introduce this new technology to our grid.”

HODGE JONES & ALLEN

Lyndsey Gordon-Webb (above) has joined HJA as a partner in the Asbestos team. Previously Head of Disease Litigation at Watkins and Gunn, (where her team represented clients who suffered from a wide range of complaints, including mesothelioma and other asbestos-related complications), Gordon-Webb has extensive experience dealing with complex disease cases. She has represented hundreds of claimants pursuing compensation in unitary and complex multi-party actions in the UK and internationally. 

She also represents members of the Armed Forces for a variety of health complaints including hearing loss, PTSD, and non-freezing cold injury. With strong family links to the British Army this is an area of law of special personal interest.

“Lyndsey’s experience will be invaluable to our team as we continue our work to ensure those impacted by asbestos can get the help they need,” said Isobel Lovett, Head of the Asbestos team. “Her passion for justice and placing her clients at the heart of her work will serve her well at Hodge Jones & Allen.”

HODGE JONES & ALLEN

Vanessa Friend (above) is re-joining HJA as a partner and Head of Mediation & Alternative Dispute Resolution (ADR) in the Family Law team. 

Formerly with Stowe Family Law, Friend’s experience encompasses all areas of family law with a particular focus on the financial issues arising from relationship breakdown, pre-marital agreements, and leave-to-remove children’s cases. She is listed in the Legal 500 (2023) and is regarded as an “excellent negotiator”s and is also a Resolution trained mediator.

“We are so pleased to welcome Vanessa back to Hodge Jones & Allen,” said Jacqueline Major, Head of the Family Law team. “She will be a fantastic addition to our team, as we continue to provide the highest quality service to clients with the focus being on negotiation and settlement.”

Vanessa Friend said, “I am delighted to be re-joining Hodge Jones & Allen as a Partner in the Family Law team. The team has a great reputation for their dedication to supporting clients and I look forward to being a part of a team with strong values at the core of their work.”