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

15 November 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Legal Tech Shedding Light on Exports

We are just at the end of International Trade Week and last evening the Chancellor expressed her disappointment at the pathetically weak growth in the economy. The Governor of the Bank of England, meanwhile, implied the need for renewed economic ties to the EU.

Where does the legal sector lie in this? The London courts are, of course, an exports earner. But legal technology too is starting to make its contribution. For example in the spotlight this week has been Luminance, a start-up by a team of Cambridge mathematicians and AI experts who latched on to the potential of AI in transforming the legal industry’s approach to handling mountains of documentation.  

“Luminance has been a global business since day one thanks to our language and jurisdiction-agnostic capabilities and Europe’s dynamic market has always been central to our global strategy,” said the company’s CEO, Eleanor Lightbody who has overseen the company’s impressive growth over the past two years and a 50% rise in the headcount.

“It’s incredible to see Luminance’s success in Europe and its continued expansion in the legal sector,” said the Minister for Exports, Gareth Thomas. “The European market offers big demand for these skills and we’re encouraging all businesses to take advantage of that.”

The UK ceased to be the workshop of the world a century ago. But it might still come to host some of the world’s leading legal tech businesses.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– Who Can you Trust? – Next 100 Years Heilbronn Lecture

– Human Rights Academic Recognised

– AI Thrives on Life Science says Arnold & Porter

– Three’s Up at Thackray Williams

+ CONTRIBUTED ARTICLE OF THE WEEK

The Implications of the New EU DORA Regulation and Operational Resilience for Financial Services by Jonathan Armstrong

+ LEGAL COMMENT OF THE WEEK

on banning under-16s from social media, the Assisted Dying Bill, the status of costs lawyers, the Which? vs. Apple action

+ APPOINTMENTS OF THE WEEK

at LAWRENCE STEPHENS and PILLSBURY

LEGAL DIARY OF THE WEEK

Who Can you Trust? – The Next 100 Years Heilbronn Lecture

Hot ticket for next week – in fact, tickets have already sold out – is for  barrister Flora Page who will be speaking as part of ‘The Next 100 years’ Heilbronn Lecture series on the theme of ‘No Choice but to Trust – The Predicament of the Powerless.’ 

Page’s lecture will examine the delicate dynamics of power in ‘a world where trust is both a precious commodity and a daily necessity’. She will explore how those without power navigate their realities and trust’s crucial role in their lives.

Having enjoyed a wide-ranging career starting at Clifford Chance and then going on to the Law Commission, the University of Law, and the Financial Conduct Authority Page’s personal claim to fame is that she played a key part in overturning the Post Office convictions in Hamilton and others. And the fight goes on. Now with 23ES Chambers she represents sixteen former Post Office workers in the Horizon IT Inquiry, including Teju Adedayo, Lee Castleton, Tracy Felstead, Seema Misra, and Janet Skinner.

Somewhat poignantly this comes in the wake of the news of the death of another trail-blazing barrister Lisa Buschof Cornerstone Chambers who has been described as “One of the most significant unsung heroes in the Post Office scandal” and was also involved with some of the clients that Page represents.

Meanwhile Page is now a member of the Legal Services Board and has recently resumed her PhD research at University College London. If you are lucky enough to have a ticket for her lecture then you’ll enjoy a fascinating evening.

Human Rights Academic Recognised

Image courtesy of Amicus

The USA’s addiction to the death penalty is puzzling to most of us on this side of the Atlantic but the tragedy of death row also has the power to attract activists dedicated to mitigating its impact. One of the leading campaigners in the UK is Professor Jon Yorke, Director of the Centre for Human Rights at Birmingham City University (BCU), who this week received the Andrew Lee Jones Award at the 2024 Amicus Champion for Justice Awards held at the Old Bailey Hall.

The Andrew Lee Jones Award is given to those who have demonstrated exceptional and extended commitment to the fight for justice on death row and is named after Andrew Lee Jones who was tried and executed for murder in Louisiana in 1991 despite a lack of clear evidence. Amicus was founded a year later to help others in similar situations.

Professor Yorke started working at the Oklahoma Indigent Defense System in 1996 and the Federal Public Defenders Office in 1997 and has been involved with Amicus for almost three decades having served as joint editor of the Amicus Journal, and as an Amicus Trustee.

“It is a great honour to receive an Amicus Champions of Justice Award,” said Professor Yorke, who has advised the United Nations and European Union on international human rights law. “I have had the immense privilege of working with remarkable people at Amicus and around the world – and both Amicus and BCU have helped build the foundation of my career. Together, we have worked to help preserve human dignity across the globe.”

Professor Yorke campaigned publicly against Alabama’s use of nitrogen gas inhalation to execute Kenneth Eugene Smith at the start of this year.

AI Thrives on Life Science says Arnold & Porter

The adoption of artificial intelligence (AI) by biopharmaceutical, digital health, diagnostics, and medical device companies is growing according to a new report published this week by Arnold & Porter. Also highlighted are the increasing governance and compliance needs as companies seek to get a grip on the risks associated with AI technologies, particularly in areas like data privacy, cybersecurity, and intellectual property.

Some indication of the rapidity of the advance is revealed by the insight that while 75% of respondents to the survey started AI implementation less than two years ago almost nine out of ten of companies which are currently integrating AI plan to fully deploy these tools within the next two years. “This reflects a significant acceleration in AI adoption,” comments Arnold & Porter.  “As AI becomes more embedded in life sciences operations, its role in patient care and diagnostics is expected to grow.”

The survey suggests that AI-enabled diagnostic tools, clinical trials, and AI-assisted treatment plans will soon become standard across the healthcare industry. “However, given that regulators are already signalling heightened scrutiny of AI use from a compliance perspective, companies must address governance gaps to ensure safe, effective, and compliant use as they progress with AI integration.”

Unsurprisingly the survey also exposed rising concerns over AI-related intellectual property issues. Nearly three-quarters of respondents expressed significant concern about the potential for AI to introduce new IP challenges within the next year. “As AI-driven innovations continue to reshape the industry, life sciences companies are increasingly vigilant about protecting their breakthroughs,” points out Arnold and Porter. 

For more go to: The Convergence of Life Sciences and Artificial Intelligence: Seizing Opportunities While Managing Risk | Featured Topics | Arnold & Porter

Three’s Up at Thackray Williams

As law firms grow is the role of Managing Partner too much for just one person?

Thackray Williams, the London and South-East firm, seems to think so. As from next year when the current Managing Partner, Sean Sanders, steps down he will be replaced by not one, not two but three successors!

The firm has been through a transformation recently putting the emphasis on its commercial work and undertaking much more of what it describes as ‘holistic legal solutions for both private and commercial clients’. All of this is better suited to a different management structure and those involved in the new three-person set-up all have board experience.

“Vikki Herbert, who heads the Real Estate sector, will take responsibility for business development, risk, compliance and client service,” explains the firm. “Anthony Macey, who heads the Private Wealth sector, will assume responsibility for the firm’s financial operations, performance and business analysis. Emma Thompson, who heads the Employment and Corporate & Commercial sectors, will also lead business development as well as strategic recruitment.”

The intention is that by taking over as joint Managing Partners they will be able to provide Thackray Williams with the benefit of their collective, complementary skillsets and experience to sustain the momentum to deliver on their ambitious plans.

“Being part of the board has given us the chance to see what we are good at and develop those skills, as well as how we complement one another,” explains Vikki Herbert. “Having been part of the board during such a transformational time for the firm also means we come with plenty of experience of running things, including effectively delivering change management.”

‘Two’s company but three’s a crowd’ as the old saying goes and triumvirates (at least in Shakespeare) do not always end well. Let’s hope that Thackray Williams bucks the trend.

CONTRIBUTED ARTICLE OF THE WEEK

The Implications of the New EU DORA Regulation and Operational Resilience for Financial Services: by Jonathan Armstrong

In a new era of asymmetric warfare and rising international tensions the EU’s Digital Operational Resilience Act (DORA), is designed to reinforce the financial sector’s digital resilience.

Becoming effective in two months time, DORA will cover banks, insurers, and investment firms and will also apply to providers of key third-party services like cloud computing. Given that financial systems are part of critical national infrastructure, disruptions impacting these systems can have widespread consequences as demonstrated by the IT outage involving CrowdStrikeⁱ and Microsoft this year.

Requirements and Penalties

DORA will consolidate and upgrade Information Communication Technologies (ICT) risk requirements throughout the EU financial services sector to ensure that a very wide range of participants in the sector are subject to a common set of standards to mitigate ICT risks, including cyber security risks. Given its concentration on supply chain resilience however, it will have an impact much wider than financial services.

EU Member States will be responsible for establishing the penalties and remedial measures under DORA, which can apply to both natural and legal persons. They can also apply these measures to a legal entity’s management body and other responsible individuals, plus choose to establish criminal penalties for breaches.

Impact on UK businesses

Though DORA does not apply to UK firms, UK financial regulators prioritise operational resilience with a similar framework. UK firms must:

• Identify critical business services and set tolerance levels for disruption.
• Map dependencies across people, technology, and resources.
• Conduct scenario testing and apply lessons learned from disruptions.
• Develop communication strategies to mitigate disruption impacts.

The UK’s operational resilience rules, effective since March 2022, will be fully enforceable by March 2025. Previous fines, such as TSB’s £48.65 million for IT failures, reflect regulators’ commitment to stringent oversightⁱⁱ.

The Next Steps

Organisations in the DORA regime or providing services to those that are will need to consider how to meet responsibilities under DORA. This is likely to be a significant project and will include the following steps:

• Conduct gap analysis to determine compliance needs.
• Train relevant staff on operational resilience.
• Strengthen incident response and horizon scanning capabilities.
• Assess board expertise, potentially recruiting as needed.
• Review and update third-party contracts to ensure compliance.
• Map critical functions and test new processes robustly.

Financial services firms are required to have in place sound, effective and comprehensive strategies, processes and systems that enable them adequately to comply with operational resilience requirements. Organisations should seek specialist advice to ensure they fully understand how DORA and the UK rules apply to them.

Jonathan Armstrong is a Partner at Punter Southall Law

LEGAL COMMENT OF THE WEEK

TOPIC: The Assisted Dying Bill

COMMENT BY: James Lister, Partner at Stevens & Bolton

“The Assisted Dying Bill should reassure many in that it details a regime that will be amongst the most restrictive anywhere in the world. However, there are two immediate concerns: capacity assessment and access. The assessment of capacity for a decision like this is wholly new territory and comes with questions as to how the court will certify that a patient is free from influence or coercion. The number of assessments required will come with a cost and I fear that this may well prevent access to the regime for some, if not many.

“The Bill proposes two medical assessments followed by a Court application, then two further assessments, which will obviously take time to coordinate and work through. Rightly, there will be questions about whether our Court system, already over-burdened as it is, can cope with making these time-critical decisions and if it can, the question is raised as to what other processes might be slower or delayed as a result.”

COMMENT BY: James Lister, Partner at Stevens & Bolton

“The Assisted Dying Bill should reassure many in that it details a regime that will be amongst the most restrictive anywhere in the world. However, there are two immediate concerns: capacity assessment and access. The assessment of capacity for a decision like this is wholly new territory and comes with questions as to how the court will certify that a patient is free from influence or coercion. The number of assessments required will come with a cost and I fear that this may well prevent access to the regime for some, if not many.

“The Bill proposes two medical assessments followed by a Court application, then two further assessments, which will obviously take time to coordinate and work through. Rightly, there will be questions about whether our Court system, already over-burdened as it is, can cope with making these time-critical decisions and if it can, the question is raised as to what other processes might be slower or delayed as a result.”

TOPIC: The suggestion that children under 16 could be banned from social media under plans being considered by Government ministers.

COMMENT BY: Hanna Basha, Partner at Payne Hicks Beach

“It is widely accepted that the Online Safety Act failed to implement sensible measures to protect children online and whilst Ofcom looks at further restrictions, real pressure is building from parent lobbying groups seeking to influence the narrative. 

Statements by politicians of their intention to protect children will only be credible if real and workable solutions are proposed and implemented.  Australia has grasped the nettle and banned under 16s on social media and the UK must follow their lead.  This is the only real and workable solution to make the online world safer for children.”

TOPIC: Which? launches £3 billion action against Apple over competition law breaches 

COMMENT BY: Anabel Hoult, Which? Chief Executive

“We believe Apple customers are owed nearly £3 billion as a result of the tech giant forcing its iCloud services on customers and cutting off competition from rival services.  

“By bringing this claim, Which? is showing big corporations like Apple that they cannot rip off UK consumers without facing repercussions. Taking this legal action means we can help consumers to get the redress that they are owed, deter similar behaviour in the future and create a better, more competitive market.”

TOPIC: Costs Judge Jennifer James comments on the lack of recourse against an unregulated costs draftsman

COMMENT BY: David Bailey-Vella, Association of Costs Lawyers Vice-Chair

“Costs Judge James’s ruling highlights a significant shortcoming of the current regulatory regime. Costs has become a very specialist an area of law and it is not for those without rigorous training and oversight.

“It is hard to understand why solicitors are willing to put their costs recovery at risk by not ensuring they take expert advice from properly trained and regulated professionals. That is, after all, what they advise their own clients to do.

“We would urge the Legal Services Board to work with us and the Costs Lawyer Standards Board to ensure that situations like this – where the court clearly frustrated by the absence of any way to take action – do not occur in future.”

APPOINTMENTS OF THE WEEK

LAWRENCE STEPHENS

Dominic Holden is joining Lawrence Stephens as a Director in its Dispute Resolution department. Previously Head of Litigation at Burlingtons in Mayfair, Holden specialises in substantial civil fraud claims, as well as complex data and hacking claims and multi-national, investigatory, enforcement and asset tracing work.

With considerable experience in litigation and disputes, Holden’s appointment reflects the growth and ambitions of Lawrence Stephens in recent years, while supporting the firm’s Dispute Resolution and cross-practice expertise in complex and cross-border elements.

Notable highlights on Holden’s CV include acting for aviation magnate Farhad Azima in his long-running and high-profile litigation against Ras-Al Khaimah’s sovereign wealth fund and its advisers, international law firm Dechert LLP and its controversial former partner Neil Gerrard.

“Dominic is a truly first-class litigator with a wealth of experience in technology disputes including litigation relating to hacking and data issues,” said Matt Green, Director and Head of Blockchain and Digital Assets and Technology Disputes at the firm. “I look forward to working with Dominic closely on a range of technology related matters at Lawrence Stephens.”

PILLSBURY

Laurence Lieberman has joined Pillsbury as a partner in its London office. Previously with Taylor Wessing, where he was a senior partner in the Disputes and Investigations team, head of the Life Sciences Commercial Disputes group and the India practice head, Lieberman works extensively with international life sciences companies. This has included notably commercial disputes in the pharmaceutical and biotech industry often based in India. Royalty payments and licensing; joint venture and collaboration agreements; marketing approvals and market entry for medicines; distribution and supply of products; and regulatory and compliance investigations and breaches have all featured in his work.

“As clients expand into new markets and across borders, their need for seasoned lawyers who can help them navigate complex international disputes and investigations only becomes more acute,” said David Dekker, Chair of Pillsbury. “Laurence fills that need and more, bringing particular experience with a number of important industries and jurisdictions, and reinforcing the strong litigation team already in place, in London and globally.”

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