Edward Fennell’s Legal Diary – Edition 41

January 15, 2021

Friday 15 January 2021 Edition 41

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

SHORT THOUGHT FOR THE WEEK

– SO WHAT ARE ‘UK VALUES’?

There has been widespread condemnation this week of David Perry QC for agreeing to act in Hong Kong for the prosecution of human rights activists including distinguished figures such as Martin Lee (known as the former British colony’s ‘father of democracy’). Lord Falconer of Thoroton, the ex-Labour Lord Chancellor said that Perry ‘could not continue in that role and remain consistent with the values of the UK.’

Meanwhile Mike Lynch, the boss of Autonomy, is at risk of being extradited to the US despite the Serious Fraud Office deciding that there was nothing worthy of prosecution in his case. This has strong echoes of the NatWest Three case when Andy Burnham, ex-Labour Home Office Minister and now the Mayor of Manchester, despatched to America three British subjects who had seemingly done nothing wrong under UK law. Among many others Nick Clegg spoke in their defence. So how exactly are these extraditions ‘Consistent with the values of the UK’ – especially when compared with the British Government’s inertia over Anne Sacoolas (the American woman alleged to have been driving the car which killed motorcyclist Harry Dunn) ?

“As the US enters a new administration under Biden, perhaps there is an opportunity to correct this system,” suggests Bambos Tsiattalou of specialist criminal defence firm Stokoe Partnership Solicitors.

One can but hope.

The LegalDiarist

In this week’s edition

–THE LEGAL DIARY OF THE WEEK

+ Brick Court hits One Hundred

+ Leppard changes his spots to Black Cube

+ Discriminatory Technology

+ Deborah Rhode RIP

– LEGAL PRO BONO STORY OF THE WEEK

More domestic abuse victims than ever helped by NCDV

LEGAL ANALYSIS OF THE WEEK

Is there a role for litigation in the NHS’s Covid-19 response?

+ LEGAL QUOTE OF THE WEEK (from the House of Lords)

The legal cost of medical negligence

– LEGAL CAMPAIGN OF THE WEEK

Use the law to finish off fake news

– APPOINTMENTS OF THE WEEK

– PODCASTS AND BLOGS OF THE WEEK

from FORSTERS

LEGAL DIARY OF THE WEEK

Brick Court Hits One Hundred

Brick Court Chambers, one of the top sets in the Temple, is committing itself to raising £250,000 for charity as a way of marking its centenary year. The primary focus of the “Centenary Challenge” will be social mobility, with £100,000 each being raised for the Sutton Trust and IntoUniversity – charities that are working to improve the representation of under-represented groups in both higher education and in the workplace. Their work will be more important than ever in 2021.

“Whilst our principal aims are deliberately wider than the legal profession, the need remains great within the legal sector too, and Brick Court will also be raising £50,000 for the Access to Justice Foundation and Advocate (formerly the Bar Pro Bono Unit),” said a spokesperson for the chambers. It will also be raising £50,000 for the Access to Justice Foundation and Advocate (formerly the Bar Pro Bono Unit).

The set traces its origins back to 1921 when William Jowitt, one of the pre-eminent commercial practitioners of his day and later Lord Chancellor (in the post-war Attlee government), established chambers of his own at 1 Brick Court in the Middle Temple. In recent years it moved to a new home at 7-8 Essex Street.

Among a number of products linked to the celebrations will be a history written by Charles Hollander QC, a centenary podcast series featuring former and current members of chambers in conversation and

Centenary ‘panel debates’ on topics of general interest.

Leppard changes his spots to Black Cube

Black Cube, the corporate investigations agency, has pulled off a major coup by recruiting to its board Adrian Leppard CBE (above) who was the national UK policing lead for cyber and economic crime for five years before becoming Commissioner of the City of London Police in 2016. With his extensive experience investigating the most serious national fraud and cybercrime affecting the UK, Leppard is a key figure within London’s financial centre and has a strong network of relationships across banking and industry.

Commenting on his new role with Black Cube, Leppard said, “It is a fact that corruption and dishonesty exists in the corporate sector, and in some parts of the world it has unfortunately become almost commonplace. Unless these practices are challenged, they grow to become endemic, influencing large parts of society. Law enforcement is often ineffective in these areas but people who have been defrauded or victimised deserve to be defended.

“The search for the truth in these environments is challenging and costly but I have been struck by the level of professionalism I have seen within the operations at Black Cube. Their lawful methods are conducted with the same level of diligence and integrity that I have seen previously in my role in law enforcement.”

Given London’s uncertain future as a financial centre in the post-Brexit world it will be fascinating to see which path the war on fraud now follows.

Discriminatory Technology?

A new report from Hogan Lovells has highlighted that increasing reliance by businesses on technology – especially artificial intelligence – is making them vulnerable to accusations of bias and discrimination. Research for the report How to prevail when technology fails, canvassed the views of 550 business leaders to discover how companies might mitigate the legal fallout from technology incidents.One of the findings was that the lack of awareness about issues relating to bias meant that 45% of businesses surveyed globally, and nearly 40% in the UK, do not check technology supplied to them for racial and gender bias.

Stefan Martin, partner at Hogan Lovells, said, “The use of AI in employee hiring decisions or in the provision of access to goods and services creates significant legal risk. We have already seen cases brought under the Equality Act 2010 where businesses have inadvertently discriminated against protected groups through the use of flawed AI. Businesses need to be alive to the risks that exist in this area. They also need to take active steps to assess those risks and to protect themselves from them when technology fails or is shown to be biased in its use or application. It is illegal to make hiring or lending decisions based on race, gender or sexual orientation, yet algorithms make assumptions based on the data sets they are trained on, which are not always sufficiently diverse.”

Mind you human beings are also still likely to fail this test. As reported earlier this week, a middle aged male applicant for a post at Guy’s and St. Thomas’s NHS Trust was rejected – despite being the top performer in the selection process – on the grounds that he was ‘nothing like the young woman’ who previously held the job. He received £7k. in compensation.

For more go to: https://litigationlandscape.hoganlovells.com/litigation-landscape/home/

Deborah Rhode RIP

Human rights lawyers on both sides of the Atlantic are mourning the death earlier this month, aged 68, of Professor Deborah Rhode, the Ernest W. McFarland Professor of Law at Stanford Law School and America’s most frequently cited scholar in legal ethics.

Regarded as being one of the contemporary giants in her field she was particularly well know for her book, In the Interests of Justice: Reforming the Legal Profession. At the heart of many of the ethical dilemmas facing lawyers was, she said, a fundamental conflict of interest. “The clash between lawyers’ responsibilities as officers of the court and advocates of client interests creates the most fundamental dilemmas of legal ethics. All too often, the bars resolve this conflict by permitting over-representation of those who can afford it and under-representation of everyone else.”

LEGAL PRO BONO STORY OF THE WEEK

More domestic abuse victims than ever helped by NCDV

With anxieties growing daily about the impact of the Covid lockdown on domestic violence the National Centre for Domestic Violence reports that it has helped, free of charge. 4165 victims of domestic violence in England during 2020.

Unsurprisingly this figure is 50% higher than NCDV’s previous record set in 2019 when the organisation was able to help 3049 victims and more than twice the figure from 2018.

Every month NCDV receives about 8000 calls from people suffering from, or at severe risk of, domestic abuse, including controlling behaviour. Most of these callers, though by no means at all, are women who have been referred by the police and other domestic abuse support agencies. NCDV’s ability to help many thousands of victims secure civil law ‘Non Molestation Orders’ quickly is an extremely effective counter to domestic abuse: if abusers breach the terms of the Order it constitutes a criminal law offence punishable by up to five years in prison.

“This pro bono effort goes right to the heart of our purpose as an organisation,” said Mark Groves, the NCDV chief executive. “Without the quite extraordinary dedication of our pro bono team many thousands of victims would simply not get the legal support they need and deserve.

“From the outset our standing policy has been to make no charge whatsoever to any victims who reach out to us. But those callers who cannot afford a solicitor and who cannot get legal aid funding quickly still need to get vital legal protection in place.

“It is when these victims find they don’t qualify for legal aid and simply cannot afford a solicitor that we can step in and help them pro bono.”

For more on NCDV go to @ncdv.org.uk

LEGAL ANALYSIS OF THE WEEK

Is there a role for litigation in the NHS’s Covid-19 response? asks Nicola Wainwright, JMW Solicitors

The Covid-19 pandemic has brought staff shortages within the NHS into sharp focus. Those shortages have been made worse by staff being off sick or becoming burned out and patient numbers escalating to record levels.

The quality of patient care during this pandemic is being severely affected even though staff are doing their absolute best. It is not only affecting patients with Covid-19, but also those with other serious, potentially life-threatening conditions.

At the end of 2020, I commissioned a YouGov survey of UK healthcare professionals to look at the role of litigation in medical decision-making. It revealed that many decisions about patients’ care are being determined by staffing levels and the availability of NHS resources, rather than patients’ best interests.

In cases I have worked on, staff shortages have contributed to patients not being seen when they should have been, necessary surgery and/or treatment being delayed, reviews being rushed, important information being missed, and key elements of care not being provided.

Explanations needed—

Patients will be grateful to staff members and teams, who they can see are doing their best in unprecedented circumstances. However, that does not mean they will not want answers as to the role resourcing and systemic failures played in any failures in care.

The Government has suggested that if litigation was reduced that would help improve care, but our survey showed litigation is not actually even in the top factors affecting the care that is given. Litigation is often the only way for patients and their families to get answers.

The NHS has accepted that it can learn from past mistakes to improve care. It is important that the effects of the lack of staff and other resources on patient safety, which has been demonstrated so clearly and tragically by Covid-19, are carefully considered and learnt from so that future care and pandemic-preparedness can be improved.

For further contact: https://www.jmw.co.uk/london/people/nicola-wainwright#:~:text=Nicola%20is%20a%20specialist%20clinical,out%20of%20our%20London%20Office.

BUT MEANWHILE from yesterday in the HOUSE OF LORDS

Medicines and Medical Devices Bill

Debated on Thursday 14 January 2021

report day 2

Lord Hunt of Kings Heath

(Lab) [V]

“My Lords, I want to come back to the debate on clinical negligence…

“We have reached a very serious position, with an exponential rise in clinical negligence costs. Twenty years ago, contingent liability was £3.9 billion; it is now £83 billion. Even allowing for inflation, I hardly think that we have become 20 times more negligent over that period. Indeed, the Minister, Nadine Dorries, told the House of Commons in a Written Answer last November:

“The continued rises in clinical negligence costs are eating into resources available for front-line care”.

“It is not delivering for patients and their families, either. There are huge delays in getting cases settled and huge lawyers’ fees, in a quite remarkable situation where the NHS ends up paying damages in 80% of litigated clinical negligence claims. There is something wrong in the way we deal with these cases.

“There have been endless reviews over the past 20 years, but precious little has happened. Seventeen years ago, an NHS redress scheme was unveiled by the then Chief Medical Officer, Sir Liam Donaldson. Legislation followed in 2006 but, 14 years later, it has yet to be implemented—and I doubt it ever will be. Since then, there has been much debate about the sustainability of Section 2(4) of the 1948 Law Reform (Personal Injuries) Act, which essentially promotes increased costs because it provides that there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the NHS. In other words, the NHS tends to pay twice.”

So there!

LEGAL CAMPAIGN OF THE WEEK

USE THE LAW TO FINISH OFF FAKE NEWS

The end of the Trump regime might signal a radical new approach by Governments to cleanse the general media of fake news. University of Exeter legal experts are now arguing that restrictions on freedom of expression to reduce the spread and adverse impact of fake news are inevitable. Their research has shown such restrictions can be introduced legally, and must be introduced by the government rather than social media platforms in order to protect the public and democracy.

Dr Rebecca Helm and Professor Hitoshi Nasu from the University of Exeter Law School have analysed different regulatory responses to fake news and associated misinformation – information correction, content removal or blocking, and criminal sanctions – to see which of these methods is likely to be effective in reducing the harmful effects of misinformation and compliant with existing law.

The study describes how traditional methods of information correction and removal or blocking of fake content may not be effective in combating misinformation due to influential psychological biases. These biases, motivated cognition and confirmatory bias, mean that once a person has been exposed to misinformation which supports their existing beliefs they are likely to endorse this information and once this has happened it can be hard to convince them the information is not true.

Criminal Sanctions? ——

For this reason, Dr Helm and Professor Nasu argue the best way to reduce the harmful effects of fake news is likely to be to prevent its creation in the first place, and that criminal sanctions may be the most effective way to do this. Criminal sanctions for the deliberate creation and spread of fake news may therefore be appropriate when used carefully and to protect the public.

The study says criminal sanction in this context can be justified when used for specific cases, with precision, combined with safeguards to protect freedom of expression by ensuring that the accused or convicted have the opportunity to prove the truthfulness of their information.

Dr Helm said: “The recent situation in the USA, where riots were fuelled by unproven allegations relating to election fraud, is indicative of a wider trend in modern society, where certain types of expression involving misleading information may be challenging rather than enhancing democracy

“The spread of misinformation is having a distorting impact on the democratic decision-making process as well as having serious negative effects on public health, national security, and public order.

“Effective action must be taken now to protect society and to ensure citizens can make choices in line with informed preferences rather than misleading but psychologically compelling misinformation.”

Professor Nasu said: “The growth of social media has brought manifold problems as well as benefits to modern societies. One of the biggest challenges to the government is to decide how to strike an appropriate balance between combating fake news and respecting freedom of expression’.

The study warns that although criminal sanction may be an effective way to combat fake news, this does not mean that it should be used widely due to the chilling effect it has on the socially beneficial free flow of information.

The full article of this study can be accessed through the University of Exeter website at https://ore.exeter.ac.uk/repository/handle/10871/124088

APPOINTMENTS OF THE WEEK

RPC has hired Tom Purton as a senior Partner in the firm’s expanding Commercial practice. Formerly with Travers Smith, Purton co-founded and led the firm’s Commercial, IP and Technology Department for ten years. He has a wealth of experience across retail, leisure, real estate, financial and business support services.

Arc Pensions Law has appointed Kris Weber as its new Legal Director for its London office. Kris joins from Slaughter and May, where he was a solicitor in their pensions team. Kris has over 25 years’ legal experience, advising both trustees and employers on the full spectrum of pensions law issues and has been a partner at several firms including Charles Russell Speechlys and Wedlake Bell.

Dentons has appointed Paul Jarvis as CEO for its UK, Ireland and Middle East region. A banking and finance partner based in the firm’s Abu Dhabi office, where he will remain as he takes on his new role of CEO, Paul joined the firm as a trainee in 1999 and has served as Middle East Managing Partner since 2016.

Enoch Evans LLP has appointed Graham Beesley as the firm’s new practice director. Graham has had twenty years of senior finance and operational experience at law firms in the North West of the country. Most recently, Graham worked for Liverpool-based Bermans where he was a practice manager and board member with responsibility for the firm’s core business support services.

PODCASTS AND BLOGS OF THE WEEK

from FORSTERS

PODCAST BREAKING GOOD

We strongly recommend the new Forsters’ podcast Breaking Good as an innovative and accessible approach to the complexities of family law. Broadcaster Marcus Brigstock does an excellent job as an intelligent layman asking sensible questions of Forsters team of family lawyers led by Jo Edwards.

The secret, of course, lies in getting the right balance between providing enough detail to make the listener genuinely better informed without overloading them with so much that they turn off. With the light touch of many BBC Radio 4 consumer programmes Breaking Good does this very neatly. So definitely worth a listen – even if you are not planning a divorce.

Marcus Brigstock with Jo Edwsrds of Forsters and guest

You can listen to episodes of Breaking Good here, as well as subscribe on your favourite podcast services.

BLOGS

Leasehold Enfranchisement Government Statement – 7 January 2021 by Damian Greenish

The Law Commission published its Report on enfranchisement valuation – ’Report on options to reduce the price payable’ – in January 2020 and its comprehensive Reports on enfranchisement, commonhold and right to manage in July 2020. On 7 January 2021, MHCLG issued a Press Release setting out initial government thinking on those Reports (or at least certain elements of them).

What is Capital Gains Tax (CGT)? By Elizabeth Small and Olly Claridge

CGT is a tax on the gain in value made when an individual disposes of a capital asset such as a residential property. Elizabeth Small Oliver Claridge discuss.

Flexible working from home and the second home abroad by Elizabeth Small

The long-cherished dream of many people, i.e. cashing in the South London three-bed semi and buying the gorgeous villa with sea views (and good broadband) before retirement, is now a tangible possibility – or is it?