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

22 November 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Opening locked gates through the law?

Abuse of its dominant position with regard to online search advertising is the charge that will be levelled by collective redress law firm, KP Law, acting on behalf of Roger Kaye KC between now and Christmas. Who knows what the outcome will be but it will be a test case of how far the law can be used to re-set what might be perceived as an unfair market.

Conversely the Government has been using the argument that ownership of agricultural land has been abused unfairly as a way of avoiding death duties. The row that has erupted has hinged largely on the claim that the Chancellor, in changing the law on inheritance tax, does not understand the economics of small scale farming.

To be regarded as legitimate laws cannot just be based on abstract principles. Locked gates can either protect or restrict. Practical reality needs to be the final judge.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– An independent Commission with teeth needed to reform legal profession, argues law professor

– Knowing your legal audience is key to social media success, says new report

– Pre-Nups for Grown-Ups

– Yes, Charity Begins with a Will

+ CONTRIBUTED ARTICLEs OF THE WEEK

Inheritance Tax on Farmers: Do the Figures Add Up? asks Tom Gauterin

Motherhood and professional sport: The Rights and the Risks by Sarah MacLarty

+ LEGAL COMMENT OF THE WEEK

on IHT reforms for agriculture, the Captain Tom Foundation case and the proposed social media ban on under-16s.

+ APPOINTMENTS OF THE WEEK

at Osborne Clarke and SA LAW

LEGAL DIARY OF THE WEEK

An independent Commission with teeth needed to reform legal profession, argues law professor

This year’s Hamlyn Lectures by Professor Moorhead of the University of Exeter Law School were as hard-hitting as might have been expected in the aftermath of the Post Office scandal. But according to Moorhead it wasn’t just the Post Office’s abuses which have cast a shadow over the legal profession lately. Oligarchs along with the threats to national security posed by professional enabling, alleged SLAPPs, NDAs, corruption and phone hacking have all added to the roster of critical threats. “There is a need for ‘concerted action’ to tackle system-wide failures,” Moorhead declared as he warned also of a culture of ‘excessive aggression’ in legal work – suggesting things are legal that are likely not to be legal including misleading and abusive handling of legal matters.

So where is the hope of a way out of this mess?

“We have to change the way lawyers think and behave,” he said. “We have to put complete integrity and particular care not to mislead at the front of our thinking. We should turn away from lauding amorality and guard against harm.”

Driving through such a cultural change might be easier said than done, so some practical tool is required.

“An independent commission is [what’s] needed,” he said, “to improve integrity and effectiveness and tackle serious issues with honesty in the legal system.”

Such a commission would need to work with government, the professions, the courts and regulators and be strongly led with a mandate to address a programme of reform. Well, one might say a little cynically, “Good luck with that!”

Knowing your legal audience is key to social media success, says new report

Law firms are in a state of muddle, it seems, about how to best exploit social media for marketing purposes. According to  TikTok or TikNot? Law firms in the social media age, the10th annual ‘white paper’ produced by First4Lawyers most social media channels – which enable clients and others to share experiences – were considered highly unlikely to generate new business. Yet despite this apparent scepticism four out of ten firms still believed that a strong social media presence was among the factors most likely to influence potential clients.

As to that provocative opening question TikTok or TikNot? the answer seems to be clearly ‘Not’. A mere 11 of the 100 firms questioned were on the platform and very few regularly posted content there. By contrast 75 firms were on Facebook, 96 on X and a full house of 100 on LinkedIn. (Although one might wonder just how long X is going to retain its high level of support give recent developments in the USA).

“A firm’s social media presence is an extension of its reputation, but it requires significant investment of time and resources to be successful,” commented Qamar Anwar, managing director of First4Lawyers. “You have to really understand your audience, their preferences, what platforms they engage with, and the type of content they want to see. Only when you have that authentic relationship will they engage and, in turn, promote you to other potential clients.”

It was significant that search engine optimisation (31%), email marketing (27%) and event sponsorship (23%) were regarded as the three most effective ways of reaching out to audiences with the professional network LinkedIn coming in at fourth.

“It doesn’t matter how often you post if you’re not reaching the right people,” added Anwar. “It’s about defining and then building your tribe – people interested in particular legal news, advice and commentary. Most law firms have not yet got to grips with this, which is why they are seeing minimal return on investment.”

Pre-Nups for Grown-Ups

Sadly several of the LegalDiarist’s married friends have split up recently – and these are people not necessarily in the prime of their lives. But maybe it should have not been too surprising. Divorce among ‘seniors’ seems a growing social trend. And with it comes the subsequent search for love ‘one last time’.On the upside, however, with age comes a certain degree of canniness which is giving rise to the popularity of ‘Grey-nups’ according to Vandana Chitroda,(left) Partner and Head of Family Law at BDB Pitmans.

 And that means it is the children of the re-marrieds who are promoting the idea.

“Pre-nuptial agreements have for quite some time been considered essential when younger couples get married and look to protect assets or a future inheritance,” says Chitroda.“But now, those getting married for the second, third and even fourth time, and often well into their 70s, are seeing a pre-nup – the grey-nup – as a critical part of their marriage planning. People are living longer and finding love and companionship much later in life, and they typically bring considerable wealth and assets to that relationship. Where they have children from previous marriages, they are looking to protect that wealth and the grey-nup provides that security.”

Grey-nups will focus on the assets that each brings to the new relationship and how they will be treated should the relationship fail, adds Chitroda. They will also consider assets that are purchased together, much in the same way as a standard pre-nuptial agreement.

 “Where they perhaps differ is that they will often address the cost of healthcare in later life and the death of a spouse. We often see grey-nups and Wills prepared together to reflect those wishes.”

So where there’s a will there is certainly a way to a grey-nup.

Yes, Charity Begins with a Will

Meanwhile, also on the themes of wills, the reforms to inheritance tax announced by the new Labour Government have been provoking demonstrations in Whitehall on a scale (if not level of violence) which almost reminds one of the Poll Tax farrago in the last century.

However, the organisation ‘Remember A Charity’ has put an entirely different slant on what to do with one’s money after decease. Led by Clare Stirzaker,(left) Private Wealth Partner at Boodle Hatfield, ‘Remember A Charity’ is a consortium of UK charities working to grow the legacy giving market

“Helping private clients consider and implement their charitable legacy is a privilege for any adviser and definitely the part of my job that I enjoy the most,” said Stirzaker. “The aim of this committee is to address how we can better enable our colleagues and peers to raise and discuss this important topic with clients. I very much hope that our efforts and collaboration drive changes across the wealth management industry, supporting higher levels of legacy giving whilst also unlocking potential lifetime giving too.”

A ‘Private Client Advisory Committee for Legacy Giving’has been set up by Remember a Charity to guide the consortium’s work

“to equip wealth advisers with the knowledge and resources they need to inspire and support high net worth clients in achieving their philanthropic goals, growing high value legacy giving.”

The creation of the committee is the result of the consortium’s recent research into the role of wealth advisers in growing legacy giving which revealed that the appetite for supporting clients in achieving their charitable legacy was high, but that relatively few advisers outside the will-writing sphere routinely advised clients on the topic. Thanks to the new committee that might change – along with a big nudge from His Majesty’s Government.

CONTRIBUTED ARTICLES OF THE WEEK

Inheritance Tax on Farmers: Do the Figures Add Up? asks Tom Gauterin

Although it was good to hear Steve Reed, the Environment Secretary, suggest last week that the Government is listening to farmers, this week’s protests would suggest otherwise with the extent of their concerns yet to be fully understood. As the entire cost of APR (agricultural property relief) is around £400m, this represents barely 2% of the ‘black hole’. It also seems to underplay the extent to which farmers are themselves (very hard!) ‘working people’.

“If the Government’s aim was to prevent wealthy individuals buying up farmland as an IHT strategy, it might instead have looked at abolishing APR for landlords, rather than imposing it on working farmers. As is widely known, farmers rarely make significant a significant profit – or even any profit – and are constantly at the mercy of natural factors beyond their control. The current proposals seem not to take account of this. By way of example – if a farmer and his wife own a farm worth £5million, of which (say) £500,000 is the value of the farmhouse, this would mean they are farming (at a ballpark value of £10,000/acre) around 450 acres of land.

“If that farm was then subject to APR at 20% on the excess over the allowances of the couple (i.e. everything over £1million each, making £2million total), that would give a tax bill of 20% x £3m =£600,000. Even if this was paid in (interest-bearing) instalments over ten years, this means finding an extra £60,000 income every year – which just about every farmer would consider miraculous – or selling 60 acres of land. In my example, that’s around 13% of the farm. As every farmer will also tell you, farming increasingly relies on economies of scale to be viable.

“It’s true that this will not affect smaller farms, but even a good-sized farm of 450 acres (the average farm size in Britain is around 200 acres) is not by any stretch a big agribusiness, or able to generate sufficient extra income to maintain its integrity. Given the relatively low cost of APR to the Exchequer, it would be good to see a proper consultation on this which may help the Government target this better than it seems to be at present and prevent further resentment building up. APR (IHT in general, in fact) needs reform, but the current proposals fail to achieve the government’s aims while also alienating a large part of the farming community.

“I think the issue here is that the government hasn’t understood how thin the margins even quite large farms run on are. The idea of a ‘small family farm’ ignores the reality that even for a farm two or three times that average size, it’s not being run at a large profit, so funding a hefty tax bill is all but impossible without selling some of the land. The government might more easily achieve its aims by reviewing the availability of APR for landlords.”

Tom Gauterin is Director at Freeths 

Motherhood and professional sport: The Rights and the Risks by Sarah MacLarty

In recent years, successes of high-profile athletes and mothers such as Serena Williams, Shelly-Ann Fraser-Pryce and Jessica Ennis-Hill have demonstrated that elite sport and having a family need not be mutually exclusive.

The entitlement to a risk assessment for pregnant elite sportswomen in the UK is a critical aspect of protecting their health and ensuring that they can balance their careers with motherhood. While the physically demanding nature of elite sports presents unique challenges, employers are legally obliged to conduct thorough risk assessments and take action to mitigate any risks.

By providing appropriate support, modifying training programs, and offering alternative work when necessary, professional sports clubs and organisations can ensure that pregnant athletes are protected while continuing to participate safely in their sports, and thereafter support their active return after maternity leave.

Professional players will normally be engaged on standard form professional playing employment contracts with their employer club. The status of funded athletes has been challenged – notably in the case of Jess Varnish v British Cycling where the Employment Appeal Tribunal determined that she did not qualify for ‘worker’ status.

UK employment legislation mandates that employers must assess workplace risks to all employees, including those who are pregnant, new mothers, or breastfeeding. This applies equally to any employed elite sportswoman. Specifically, when an employee notifies her employer that she is pregnant, the employer must:

1. Assess the risks to the health and safety of the athlete and her baby.

2. Take action to remove, reduce, or control any risks identified.

3. Provide reasonable adjustments or alternative work if necessary.

For elite sportswomen, this risk assessment is critical, as their roles involve intense physical activity, exposure to potential injury, and a need for specialised training environments, with optimum nutrition, strength and conditioning, and rehabilitation from injury.

Failure to provide an adequate risk assessment or failure to take appropriate action based on the assessment can lead to claims of discrimination under the Equality Act 2010, which prohibits discrimination against women on the grounds of pregnancy and maternity.

Employers who fail to fulfil their obligations may face legal consequences, including employment tribunals or claims for unfair dismissal or discrimination. A breach of duty of care could also give rise to a personal injury claim.

As awareness around pregnancy and maternity rights grows in the world of elite sports, it is essential that employers and stake holders work together to ensure that all female athletes receive the leading medical support and employment protections they are entitled to under UK law. This will not only help safeguard their health but also encourage a more inclusive and supportive environment for women in sport.

Sarah MacLarty is a senior associate on the employment team at Clarke Willmott LLP

LEGAL COMMENT OF THE WEEK

TOPIC: Proposed reforms to IHT for farmers

COMMENT BY: Iwan Williams, partner in the Tax, Trusts & Succession team, Michelmores LLP

“As farmers descend on Westminster today to voice their frustration and anger over the government’s restriction of Agricultural Property Relief (APR) for inheritance tax (IHT), many have highlighted accelerated gifting by ‘potentially exempt transfers’ in the hope of surviving 7 years as a way of mitigating the effect of the new rules.

“The use of potentially exempt transfers remains a powerful estate and succession planning tool for many farming families and businesses, no doubt.

“However, to be effective for IHT, any outright gift (a potentially exempt transfer) would need to be ‘with no strings attached’. The donor would not be able to retain an interest in the property given away, otherwise the gift would potentially be caught by the IHT ‘gift with reservation of benefit’ rules, rendering it ineffective for IHT purposes. Given the changes to APR, many farmers will need to carefully consider how to balance their estate and tax planning with retaining sufficient income and capital for retirement – and that will be far from easy for many.”

TOPIC The problems at the Captain Tom Foundation.

COMMENT BY: Vanessa Williams, partner and specialist in charity law, Excello Law

“The 30-page report published this week following the two-year inquiry into Mr and Mrs Ingram-Moores’ trusteeship of the Captain Tom Foundation is damning in its findings. It highlights the need, especially in charities with few trustees where there is little or no check and balance, for there to be a clear distinction between the personal interests of the trustees and the interests of the charity and its beneficiaries.

“The temptation to get carried away on the wave of a successful high-profile charity can be great, and what may start out as a small blurring of the lines can soon amount to significant misconduct and/or mismanagement of the charity. In the case of Mr and Mrs Ingram-Moore, the report found that they received significant personal benefit, and in so doing, they diminished the inspirational work of Captain Sir Tom Moore who gave so much to so many.

“Let us hope that Mr and Mrs Ingram-Moore will now make reparation to the charity and to the memory of an incredible man who regardless of their actions deserves his place in the hearts of the nation.”

TOPIC: The proposal that children under 16 could be banned from social media under plans being considered by the Government

COMMENT BY: Iona Silverman, IP Partner, Freeths

“We know that children lie about their age on social media. Although age-checking technology is improving, there needs to be clarity about how the Government will implement any new online safety legislation, and what the sanctions for non-compliance will be. We’re told that the Government will strengthen the powers of Ofcom, the regulator, to protect children, but it needs to go further: Ofcom will need power to levy substantial fines to ensure the legislation has any impact at all. 

The Government has said that it won’t make it mandatory for schools to ban children’s access to their phones while at school. This will divide opinion, with parents saying schools should do more, and schools saying they don’t all have the resource to implement a nationwide ban. Whatever your personal opinion, the consequence is that some schools will allow children to use their phones at school with little to no oversight. 

Overall, the proposed changes are a drop in an ocean-sized problem. Once banned from social media (if indeed the ban is effective), teenagers will find a new way to access content which may be harmful. The Government needs to think bigger: this is a problem that requires a cultural shift, and also requires legislation to be one step ahead of, rather than behind, technology.”

COMMENT BY: Mark Jones, Partner, Payne Hicks Beach

“The Technology Secretary has announced the launch of a study to explore the effects of smartphone and social media use on children, to help bolster research and strengthen the evidence needed to build a safer online world. This is of course encouraging, but the risks are widely known. Recently we have seen the NSPCC report that Snapchat is the most used social media platform for grooming. Ofcom have recently consulted on protecting children from harms online (consultation closed on 17 July 2024) . We already know the risks ( sexualised and violent content, trolling, sexual abuse and so on), so is a study of any real value or should the government instead focus its energy on dealing with the risks?

Recently we have seen Australia announce that that it will ban under 16’s from social media platforms. This week, Roblox has announced that it will ban under 13’s from messaging each other unless they have verified parental comment.

Keeping children safe online is vital. Regardless of the outcome of this government study, time is running out for platforms before the duties under the Online Safety Act start to bite next year.”

APPOINTMENTS OF THE WEEK

OSBORNE CLARKE

John Lineker is joining Osborne Clarke as a Partner in the firm’s IP Disputes Practice. Previously with Fieldfisher he has also been a Partner at Dentons and Taylor Wessing. Specialising in IP disputes involving trade marks, copyright, designs, and confidential information Lineker has acted for clients in some of the most high-profile IP disputes in recent years including Sky v SkyKick where he led the team acting for SkyKick at all stages of the litigation up to the UK Supreme Court.

“Having successfully delivered impressive revenue growth year on year over the last five years, we continue to expand our IP Disputes team,” said Arty Rajendra, Partner and Head of UK IP Disputes at Osborne Clarke. “We’re excited to work with John who is a well-established and respected name in the IP world. With a wealth of experience acting in high profile IP litigation and as a market leading practitioner, John will further strengthen our UK IP Practice.”

Lineker responded. “I’m pleased to be joining Osborne Clarke’s high-growth IP Disputes team. I look forward to supporting the team in winning new work and ensuring clients continue to receive strategic IP disputes advice.”

SA LAW

Yezdan Izzet has joined SA Law as a Partner and Head of Property Dispute Resolution. Previously with JPC, where she was head of dispute resolution it is intended that Izzet will have an important part to play in continuing to drive the expansion of SA Law’s Property Dispute Resolution team.

Izzet’s client base includes developers, commercial entities and individual landlords and homeowners (freeholders and leaseholders) and she has particular expertise in advising on complex property disputes involving airspace and rooftop developments, and right to light issues. She advises on all aspects of property litigation, including commercial/residential landlord and tenant, possession, overage, breach of contract and misrepresentation, boundary, trusts of land, property professional negligence as well as management disputes.

“SA Law’s property dispute resolution department has an excellent reputation in the property sector, and I have long admired the achievements of the team and the outcomes they’ve achieved for clients,” said Izzet “I am looking forward to leading the team into a new era of opportunity and growth.”

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