Edward Fennell’s LEGAL DIARY
Diary news, commentary, insights, appointments and arts from the legal world
July 22 2022 Editorial Contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK – A MEMORABLE LORD CHANCELLOR?
The battle for the keys to No. 10 is being fought out in the gutter of economics but at some point, surely, the law must feature in the contest (even if only as a last minute squiggle in the margin of the candidates’ hustings crib).
It’s difficult to assess what Mr Sunak might have to say but with Ms Truss we have eleven months’ of ‘lived experience’ when she was the Lord Chancellor back in 2016/2017.
In the interests of objectivity the Financial Times was consulted on what it had said when she handed back her robes. The report was blunt. It reminded readers that Lord Thomas, the Lord Chief Justice, had told a committee of MPs that he had been “very disappointed” at Ms Truss’s failure to defend judges following attacks in the press, describing her actions as “constitutionally absolutely wrong”. Lord Thomas also attacked Ms Truss for a “complete misunderstanding” of reforms to cross-examination of vulnerable witnesses in rape trials. “He had been forced to write to all judges to clarify that measures to spare witnesses live cross-examination in rape trials were for children, not adults as Ms Truss had said.” Examining other controversial aspects of her career at the top of the legal tree the FT observed that that “Ms Truss has overseen a number of contentious decisions — notably plans to raise legal fees payable after death by up to £20,000, even after a parliamentary committee said the increases were unlawful.”
So ‘unconstitutional’, ‘misunderstanding’ and ‘unlawful’. Looks like a continuity candidate.
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– Farrer’s Shouts ACTION in the Thames Valley
– A Giant Step for ESG Justice?
– Preparing Better for Last Rites
– Court Records: Who knew?
+ CONTRIBUTED ARTICLE OF THE WEEK: THE IMPORTANCE OF ‘FULL AND FRANK’ DISCLOSURE by DEBORAH JEFF
+ LEGAL COMMENT OF THE WEEK on SLAPPS, the Data Protection Bill, holiday pay for variable hours employees, the Financial Services and Markets Bill
+ APPOINTMENTS OF THE WEEK at Lowry Legal and Pillsbury
+ E-VENTS
+ LEGAL DIARY OF THE WEEK
Farrer’s Shouts ACTION in the Thames Valley
Suddenly London is being ringed by new film studios. According to The Times this week the Sunset Studios at Waltham Cross should be shooting by 2025 while thanks to Farrer & Co theShinfield Studios development is now ‘set to bring Hollywood to the Thames Valley’.
“The four temporary stages that opened in November 2021 are already let to major high-end TV, streaming and film companies,” declared the firm. “Work on a further 14 stages is now well advanced.”
So when the credits are run look out for the Commercial Property, Banking and Corporate teams at Farrer’s who acted for Shinfield in securing debt finance of £261m from Cain International. This has enabled them to take on a new 199-year geared lease from Reading University, the freehold owner of the wider Thames Valley Science Park site.
Farrer’s also acted for Shadowbox Studios in connection with the UK aspects of private equity firm Silver Lake’s US$500 million investment in the business which builds and operates soundstages for TV & film productions including at Shinfield. There are now further plans to use the new funds to develop existing projects in Atlanta, London, and Los Angeles to meet global demand from content producers.
“We are delighted to have supported our client in a flagship project that showcases the film-making talent and facilities on offer both in the Thames Valley and across the UK, as well as the market’s appetite for participation in the film industry,” said real estate, partner Mark Gauguier.
Break out the popcorn now.
A Giant Step for ESG Justice?
The firepower available to ESG (environmental, social and governance) campaigners has just been expanded with the announcement that PGMBM, the law firm with UK/US Dutch and Brazilian offices, has sealed the deal on a £100m litigation funding partnership with alternative investment firm, North Wall Capita.
“The investment will be used by PGMBM to address the growing demand from consumers and other victims of injustice to seek recourse against corporates,” comments Elena Rey, Partner at Brown Rudnick who led the firm’s team in completing the arrangement. “This deal is thought to be the largest investment in a UK claimant law firm to date. This was a complex structure, which included a framework for the type of cases that this investment can be used to fund.”
Tom Goodhead, the Welsh-raised barrister and PGMBM founder (and inspirational force) declares that while he believes in capitalism, transnational corporations need to be held to account for breaches of their ESG obligations. This month, for example, the firm secured a landmark, unanimous judgment from the Court of Appeal that allows over 200,000 victims of the Mariana Dam failure, Brazil’s worst ever environmental disaster, to seek redress against the world’s largest mining company, BHP, in the Courts of England and Wales.
Meanwhile in November 2020, Brown Rudnick launched the Litigation Funding Working Group, which now has over 90 members to develop model documents and earlier this year it hosted London’s first ever Litigation Funding Conference, attended by over 300 funders, lawyers, brokers, investors and other entities from the litigation funding eco-system. All-in-all ESG is clearly taking off – and fast.
Preparing Better for Last Rites
Lime Solicitors and its charity partner, the Anne Robson Trust, have launched a new campaign encouraging the public to speak with their ‘loved ones’ about their wishes after they die. According to a recent poll just one third of people report that they had discussed the topic with family members. Even among those aged 55+ the figure stands at only 37%. In the light of this it is, maybe, no great surprise then that the number of inheritance disputes is rising. “Will disputes that proceed to a final trial can put huge financial strain on clients, potentially escalating to sums in excess of £100,000, in additional to the emotional pressure.,” comments Lime Street.
That is why the ‘Let’s Talk About the End’ campaign intends to raise awareness of the will-making process and encourage people to start talking earlier. ““End of life wishes have been a taboo subject for too long and not talking about them can result in heartbreak and financial loss for bereaved families. The current law does not allow the court to dispense with the formalities of a will, irrespective of the circumstances, even when it clear that the terms of their will (or the intestacy) rules do not reflect their wishes,” says Andrew Wilkinson, Head of Inheritance Disputes at Lime Solicitors. “We think that such a provision should be brought into law, but even that is not the answer alone. Everybody should have a will in place.”
Meanwhile the Anne Robson Trust provides support for those facing death. “We help NHS hospitals across the country to set up teams of ‘end of life’ volunteers who sit with dying patients,” explains Liz Pryor MBE, CEO and Founder of the end-of-life charity. “These amazing volunteers have made over 10,000 visits to patients in their last days, many of whom have no other visitors at all.”
The Anne Robson Trust can be contacted on 0808 801 0688.
Court Records: Who knew?
According to research published yesterday by the The Legal Education Foundation the making available of information from court records to commercial organisations is unpopular with the public and risks undermining confidence in the justice system.
The research detailed in “Justice data matters – building a public mandate for court data use”, shows that a large percentage of people are uncomfortable about tech companies, credit-rating agencies and insurance firms being permitted unrestricted access to court data and that most people want ‘robust, independent, and transparent’ controls to limit it. Many people are also unhappy about the application of artificial intelligence and predictive analytical tools and the risks which they pose to equality.
“The public’s faith in the justice system is low and the lack of clear limits and controls over the access to and use of court data risks further undermining trust,” says Reema Patel, co-author of the report. “Yet our work with the Foundation demonstrates how, with effective governance that secures public consent, data-sharing has the potential to help improve the justice system and narrow inequalities.”
CONTRIBUTED ARTICLE OF THE WEEK
THE IMPORTANCE OF ‘FULL AND FRANK’ DISCLOSURE by DEBORAH JEFF
The importance of honest, transparent financial disclosure on divorce was demonstrated in a case that made headlines in recent weeks.
Anthony Cooke was found by the criminal court to have altered email valuations of the family home by estate agents, reducing the value of the home by £5,000 in the hope he could buy out his wife’s share at a suppressed price. He went on to produce such amended valuations as part of his financial disclosure statement, signing a statement of truth accordingly. The fraud was discovered when Mrs Cooke asked for copies of the valuations from the estate agents directly.
This is a classic case of trying to be clever with financial disclosure that backfired spectacularly.
There are clear warnings on the documents he will have signed in the divorce at the time, advising of the consequences of not making honest disclosure, i.e., contempt of court which is punishable by fine and ultimately imprisonment. He would likely have escaped detection if the property had been transferred to him as he wished as the estate agents would no longer have any role in the case. Instead, Mrs Cooke contacting the estate agents started a chain of events for Mr Cooke that have led to his downfall financially and will impact on his future earnings. As a compliance office, his career is almost certainly over.
Mr Cooke will now serve his 7 months’ prison sentence and emerge looking for employment as well as facing the possible re-opening of the divorce settlement so his wife gets a greater share of the assets. The court will still be bound to ensure his housing and income needs are met, but likely on a reduced standard of living to reflect his conduct. He’s also likely to be ordered to pay his wife’s legal fees of re-opening the case.
Deborah Jeff is Head of Family Law at specialist reputation, media and entertainment law firm, Simkins.
LEGAL COMMENT OF THE WEEK
TOPIC: The Ministry of Justice’s package of new measures to address Strategic Lawsuits Against Public Participation (SLAPPs), in which legal action is brought to intimidate journalists, authors, and campaigners.
COMMENT BY: Mark Fenhalls QC, Chair of the Bar Council
“Action on SLAPPs is timely and welcome to curb the abuse of court proceedings by those with the power and wealth to use the justice system to intimidate others.
“This type of case is not brought to ‘win’, but rather to wear out and deter the defendant through the sheer weight and cost of litigation.
“The introduction of a new three-part test will allow for the consideration of early dismissal, and a cost protection regime will help those who are involved in these cases.
“Tackling the myriad complex challenges posed by SLAPPs will require sensitive law and policy making, as well as considering the international nature of these cases. Today’s announcement is a positive step forward and we look forward to engaging in the detail as new legislation progresses.”
COMMENT BY: Gideon Benaim, partner at Simkins
“No one disputes that cases which are genuinely abusive ought to be dispensed with at the earliest stage possible. However, it is important that a case does not become a ‘SLAPP’ simply because a journalist or publisher asserts that there is a public interest angle, even though a claimant has a legitimate reason to seek to enforce their legal right.
“As anyone who has been involved in defamation and privacy law knows, public interest justifications from the media for proposed stories are raised in almost every situation, sometimes tenuously. The key for the government in making any legislative change will be to carefully balance the various competing rights. Unfortunately, I suspect that this is easier said than done.”
COMMENT BY: Jon Oakley, partner at Simkins
“In the vast majority of cases in this area, there is a fine line to tread in terms of balancing freedom of expression on the one hand and the right to reputation on the other. Of course, abusive claims should be struck out at the first opportunity, but the reality is that they are rare in practice.
“The overwhelming majority of claims in this area are brought by those who have had their reputations harmed (if not destroyed) as a result of false allegations being published about them. In pursuing these reforms, the government must ensure that access to justice for those so affected is not curtailed.”
TOPIC: The Data Protection and Digital Transformation Bill published this week
COMMENT BY: , Jon Baines, Mishcon de Reya
“This is a complicated Bill, covering multiple different areas. Despite best intentions, it would, if enacted, still leave a patchwork of laws for companies to have to negotiate and comply with.”
“With the multiple amendments proposed in the Bill, the UK GDPR is starting to look quite different to its European cousin. And the more the two regimes diverge, the more there is a risk that the EU might question whether it still considers the UK to have an “adequate” regime for the purposes of data transfers.”
TOPIC: The ruling by the UK Supreme Court that employees who work for varying hours during only certain weeks of the year but have a contract throughout that year, are entitled to the same holiday pay as colleagues working all year.
COMMENT BY: Colin Godfrey, employment law specialist at Taylor Wessing
“In Harpur v Brazel the Supreme Court has held a simple line, agreeing with the Court of Appeal, that the amount of leave to which a worker is entitled under UK law, 5.6 weeks’ a year, should not be pro rated for those with part-year working arrangements. The result means that those working only certain weeks during the year (but who are contracted for the whole year) are entitled to the full 5.6 weeks’ paid leave, not an amount proportionate to the number of weeks actually worked during the year. The decision is particularly important for those using part-year workers including schools engaging term-time only staff and many in hospitality who engage seasonal workers under permanent contracts.
“The decision once and for all discounts the 12.07% method of calculating holiday pay which has been adopted by many employers as a practical means of calculating holiday pay for those who work irregular hours. Instead employers must provide 5.6 weeks of leave to part-year workers and pay for those days of leave at the rate of pay calculated using the workers’ average pay over the previous 52 weeks (discounting weeks when no remuneration was payable).
“Though there is EU case law to support pro-rating, the Supreme Court declined to depart from the method of calculation required by the WTR. The Court was very clear that this is the correct approach to calculating holiday pay, even if adhering to the statutory interpretation of a week’s pay might result in a part-year worker receiving a higher rate of holiday pay than other employees. The Court’s view was that a slight favouring of workers with an atypical work pattern is not so absurd as to justify wholesale revision of the statutory wording.
“The result is mixed news for employers of part-year workers. On the one hand it avoids requiring employers to adopt potentially complex calculations which would be an administrative headache. On the other, employers of part-year workers who have previously adopted a pro-rata or 12.07% approach to holiday, will find their wage bill increasing and the potential of claims for back-pay.”
TOPIC: Financial Services and Markets Bill
COMMENT BY: Miles Celic, Chief Executive Officer, TheCityUK
“The goal of this legislation must be to stimulate a regulatory culture which is agile, robust, fair, competitive, proportionate and customer-centric. All reforms should seek to maintain the UK’s reputation for high regulatory standards while preventing gold-plating. Where appropriate, they should also support the regulators in driving convergence toward global standards. Ultimately, the reforms need to provide a framework for scrutiny and accountability of the wide-ranging new powers being given to the regulators, both to ensure they meet their statutory and policy objectives and to keep track of how regulatory decisions are impacting UK competitiveness and the economy.
“Maintaining and enhancing the UK’s thriving, internationally competitive financial services sector will help ensure that it can play its full role in supporting important policy goals, like tackling climate change, addressing the cost of living crisis, and levelling up the nations and regions of the UK. We will now study the detail of the Bill, and we look forward to a constructive debate about how best to achieve this widely shared aim.”
APPOINTMENTS OF THE WEEK
LOWRY LEGAL
Michael Gregory has joined boutique high-net-worth (HNW) family law firm Lowry Legal as Partner.
Formerly with Beswicks Legal, Gregory has almost 20 years of experience advising HNW business owners, entrepreneurs and high-profile clients on a diverse range of family law matters that often involve a foreign or jurisdictional element, or complex business and family trust structures. He also has particular niche experience in surrogacy and fertility law together with extensive experience advising in cohabitation and same-sex cases. He is a Resolution accredited specialist with advanced portfolios in complex financial matters and children issues.
“In my niche practice of surrogacy and the modern family, I am seeing a sharp uptake in intended parents deciding to travel abroad for international surrogacy arrangements now that travel restrictions have lifted post Covid,” says Gregory. “Many couples who delayed their pathway to parenthood are now embarking on this journey.
In June, The Foreign Commonwealth and Development Office updated its guidance on “Surrogacy Overseas” to highlight the complex nature of these arrangements.
It is a concerning trend that some intended parents are not seeking the independent legal advice that is vital, both in the UK and in other countries, before embarking on their journeys and making surrogacy arrangements.”
PILLSBURY
Greg Hammond has joined Pillsbury in London as a Corporate partner.
He had previously held leadership roles at Dentons, Akin Gump and Eversheds Sutherland specialising in the Oil & Gas sector and handling a wide range of work including traditional M&A, joint venture, private equity, capital markets and projects matters and, increasingly, on engagements relevant to the energy transition. His client list extends across governments, international energy companies, independents, public and private corporations, private equity firms, hedge funds and commodities traders from around the world.
“Greg is a renowned corporate finance and projects lawyer who has worked on many of the world’s highest profile energy deals,” said Jeff Delaney, the leader of Pillsbury’s global Corporate practice. “His longstanding relationships and exemplary reputation will be of immense value to our leading Energy transactions practice.”
Since the start of 2019, Pillsbury has brought on or promoted more than a dozen Energy sector-focused partners in London, New York, Houston, Washington, San Francisco, Los Angeles, Tokyo, and other key markets.
E- VENTS
View email online Legal Leaders Programme – Designing and delivering a valued legal service to your organisation In collaboration with Thomson Reuters, we are delighted to bring you the third in a series of four webinars. Date: 28 September 2022 Time: 2.00pm – 3.15pm (BST) Many in-house legal functions grow organically in response to the most pressing demands at the time. Yet, this can result in a mismatch between where legal resources are focused and those areas where legal input is most needed. We will explore how you can design and deliver a legal service that is effective and valued. We will consider important issues relating to purpose, strategy and planning, operational management. value, recruitment and training and diversity. Many in-house legal functions grow organically in response to the most pressing demands at the time. Yet, this can result in a mismatch between where legal resources are focused and those areas where legal input is most needed. Please click the Accept button (below) to register for this webinar. Once you have registered you will be sent a confirmation email with full details. If you have any questions, queries or comments, please contact us at admin@legalleadership.co.uk ACCEPT |
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| Call for Evidence The Bingham Centre for the Rule of Law is supporting a major new initiative, an Independent Commission on UK Counter-Terrorism Law, Policy and Practice, chaired by the Rt. Hon. Sir Declan Morgan PC QC, former Lord Chief Justice of Northern Ireland. The Commission brings together individuals with expertise and experience of counter-terrorism law, policy and practice. The Commissioners include Professor John Denham, Sir Peter Fahy QPM, Murray Hunt, the Rt. Hon. Dominic Grieve PC QC, Alyson Kilpatrick, Dame Anne Owers, Baroness Sayeeda Warsi, Amanda Weston QC and Professor Lucia Zedner. Details of all 15 Commissioners can be found here. The Commission’s analysis and recommendations will be informed by discussion and dialogue with a wide range of stakeholders, including academic experts, civil society groups, policymakers and practitioners. In conducting its review and formulating its recommendations, the Commission will take into account laws, policies and practices in jurisdictions within and outside the UK. The Commission’s Call for Evidence covers several issues including the conception and definition of terrorism; criminal offences related to terrorism; counter-terrorism policing powers; the use of administrative and executive measures in counter-terrorism; measures for countering terrorism financing; digital technologies and counter-terrorism; the Prevent Strategy and counter-radicalisation policies; prisons, reintegration and rehabilitation; review, oversight and accountability of counter-terrorism laws, policies and practices. The Commissioners would welcome your thoughts, ideas and proposals in response to any of the questions in the Commission’s Call for Evidence. The deadline for submission of responses is 15 November 2022. Details of how to submit your response are in the attached Call for Evidence document. There is further information about the Commission on our website. If you have any questions, please do get in touch with Tufyal Choudhury, our Senior Research Fellow on Security and the Rule of Law, via email t.choudhury@binghamcentre.biicl.org |
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