20 December 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: The Year of Starmer?

Do barristers make good Prime Ministers? With Keir Starmer most likely to be in office until 2029 that will represent twelve years of barrister leadership of the country in the 21^st century.

Effective barristers are able to make the most of a good argument whichever side they happen to be on. But it does not, necessarily, reveal much about their judgement. However brilliant Blair might have been his legacy will always be haunted by a disastrous decision over Iraq. So far Starmer has made poor judgements over the economy and even his advocacy skills seem rusty.So it remains to be seen how well he can handle in detail the big issues next year which will really test his mettle. Right now the jury of the British people seems unconvinced. Time to bring something inspirational out of the hat?

The LegalDiarist

+ LEGAL DIARY OF THE WEEK

– Christmas Cheer from Irwin Mitchell

– Their Way at Burgess Salmon

– A Christmas Horror Story

– HF Attracts External Investment

+ CONTRIBUTED ARTICLE OF THE WEEK

The Profile of a Successful General Counsel by Tanja Albers

+ LEGAL COMMENT OF THE WEEK

on home-schooling, the BDW vs. Ardmore case, BT’s big win over bills, financial remedies and divorce, devolution in England and medical reporting of road accidents.

+ APPOINTMENT OF THE WEEK

at Browne Jacobson

LEGAL DIARY OF THE WEEK

Christmas Cheer

With ‘Freezing This Christmas’ by Sir Starmer and the Granny Harmers now looking a major contender for this year’s Xmas Number One the question is, what can law firms do about it to make things better for everyone else?

The Irwin Mitchell Charities Foundation (IMCF) has responded in the true spirit of the season by announcing backing for two organisations committed to supporting those most in need and who will benefit from the firm’s annual winter donations

The sums involved are not to be sniffed at. The Trussell Trust and Crisis will each receive £75,000 to support key projects aimed at helping to relieve suffering among the hungry and those facing homelessness this winter.

“We are really grateful to the Irwin Mitchell Charities Foundation for supporting our Money Matters Project,” said Zoe Pate, Head of Corporate Partnerships at Trussell. “Your support allows us to be there for people in their hardest moments, ensuring they get the best advice and support. Food banks are a vital lifeline to people left without enough to live on, but they’re not the solution. We need to make sure people have enough money. By providing people on the lowest incomes with advice today and ensuring they can access the right support in the future, we make it a lot less likely someone will need a food bank again.”

Meanwhile the donation to Crisis  will provide three months of funding for two of its key areas – funding specialist homelessness and housing advisors in England and the team of ‘Strength and Asset’ coaches in Scotland and Wales.  Rob Halkyard, Director of Fundraising and Marketing at Crisis, said, “We are incredibly grateful that the Irwin Mitchell Charities Foundation will be supporting Crisis this winter. Every year, we work with thousands of people as they begin to rebuild their lives away from homelessness. But we’re only able to do this because of the incredible support from organisations like the Irwin Mitchell Charities Foundation, with their support we will help more people to end their homelessness.”

Kate Rawlings, a Trustee of the IMCF, said, “We’ve chosen to support Trussell and Crisis with specific projects, recognising that some core initiatives that will make a lasting positive impact on people’s lives, need a bigger investment. These are well respected organisations, with a strong track record and we’re looking forward to working with them to understand the impact these donations generate.” 

Do It Their Way at Burges Salmon

On the theme of law firm charitable activity it is good to report that Burges Salmon continued its fruitful relationship last week with the Bristol Beacon by raising £15,000 in aid of its charitable theme – Fairer Futures for Young People – at the firm’s talent show.

A packed audience was entertained with music, singing, magic, stand-up comedy acts and more including, momentously, the firm’s Senior Partner, Chris Seaton, giving what is described as ‘a moving rendition’ of Frank Sinatra’s My Way just ahead of retirement next year.

The money, which was raised through ticket sales, donations, auctions and a raffle, will now be distributed to a number of charities and community groups across Bristol and Edinburgh to support education, health and wellbeing and social mobility projects and help tackle homelessness and food poverty amongst young people.

“Responsible Business is part of life at Burges Salmon,” says Kevin Kennedy, partner and Chair of Burges Salmon’s charity committee. “Our talent show was a huge success and a fantastic display of Burges Salmon’s culture at its best, with our people coming together to put on a truly remarkable event and gathering in mass to support our hugely talented and brave performers with great encouragement. Our collective efforts meant we were able to raise a phenomenal amount to support our charity partners and we’re proud to contribute to the inspiring work they do across our communities to support young people realise their full potential.”

A Christmas Horror Story

For her last missive of the year Dana Denis-Smith, the CEO and Founder of Obelisk Support asked ChatGPT for its predictions of the three biggest trends for the legal sector in 2025.

So was it inspired wisdom or mere solipsism which prompted device to respond

1. Widespread Adoption of Artificial Intelligence (AI) and Automation

2. Increased Emphasis on Legal Tech and Digital Transformation

3. Client-Centric and Flexible Legal Services?

“What struck me was the almost gleeful tone each took,” commented Denis-Smith. “Here I am, the best-known piece of AI technology in the world, confidently predicting a future in which me and my kind have come to dominate everything. I have no doubt that ChatGPT’s number one prediction is likely to prove extremely accurate, but it hardly fills me with joy when I look ahead to 2025 and beyond.”

It certainly looks like a Day of Reckoning is coming very fast upon us with AI. It is, you might say, the enemy within – at least as far as original creatives are concerned. The horrible fear is that writers, designers, composers are feeding the very beast which will destroy them.

So with the UK Government’s latest consultation now announced on copyright material and how it can be used to train AI what is the best way forward?

“To foster innovation without undermining creators’ rights, any reform must prioritise transparency and enforceability,” said Ralph Arrate, Partner, Data Protection, AI & Cyber Security, Spencer West LLP. “ AI firms should be required to disclose the datasets used for training, ensuring compliance with copyright law. Simultaneously, streamlined licensing mechanisms—perhaps through collective licensing or standardised agreements—could enable creators to benefit financially while supporting AI development.The outcome must strike a balance: protecting the rights of creatives, incentivising AI firms to innovate responsibly, and ensuring legal certainty for all parties. This consultation is an opportunity for the UK to lead globally, crafting a framework that respects intellectual property while unlocking AI’s transformative potential.”

Fine sentiments but one suspects that on the Dark Web no one hears you scream – at least not for a lawyer.

HF Attracts External Investment

In a move which illustrates how significantly the ownership structure of UK law firms is changing, HF (which specialises in the insurance and commercial sectors) will gain, subject to regulatory approval, a significant strategic investment by CBPE, a UK based private equity firm.

The goal is to provide HF with the capital needed to accelerate its growth strategy and ‘firmly establish the company as the leading technology-driven legal services provider to insurance companies and corporates’.  

Structured as a limited company so as to create an all-employee share scheme the HF workforce will roll over the majority of their investment, to support innovative technology and the development of its people.

“Our continued growth over the past few years has naturally attracted interest from outside investors,” said Ronan McCann, HF’s CEO & Managing Partner. “However, it was always crucial for us to work with an organisation whose values and culture align with ours, making CBPE the perfect partner for us.  We’re excited to be stepping into the future with them, their proven track record in the professional services and financial services markets and dynamic approach will fast forward our ability to grow and invest in our innovative technology, our service offering and our people.”

Richard Thompson and Naveen Passi (Partners of CBPE), commented, “HF is differentiated through its ability to combine highly technical ‘lawyer led’ services and trusted advice with a technology led approach to higher volume work.” 

Looks like a winning formula.

CONTRIBUTED ARTICLE OF THE WEEK

The Profile of a Successful General Counsel by Tanja Albers

In today’s business environment, the role of a general counsel (GC) extends far beyond traditional legal ability. As we’ve heard in many conversations over the years, the general counsel is no longer just “the lawyer in the room”. While being a capable lawyer is fundamental, it’s only the starting point. To effectively lead an in-house legal team and advise the C-suite, a successful GC should possess a blend of strategic vision, analytical prowess, leadership capabilities, and exceptional interpersonal skills.

Strategic Vision

A successful GC must have a strategic vision that aligns legal strategies with broader business goals. This comes from the relationships, trust and confidence they’ve built with the executive team, board of directors and functional heads. It involves understanding the company’s goals and crafting legal frameworks that support and drive decision making. The ability to foresee potential legal challenges and opportunities, and to integrate this foresight into the company’s strategic planning, is crucial.

Analytical Skills

Strong analytical skills, including the ability to dissect complex legal issues, interpret regulations, and anticipate the implications of legal decisions on the business, are indispensable. Analytical acumen enables GCs to give insightful advice that balances legal considerations with business realities.

Leadership Skills

The GC needs to navigate the grey spaces, operate in pressured situations, and lead during those key transition points. This role requires the ability to inspire and lead a legal team, build consensus among diverse stakeholders, and navigate the intricate dynamics of corporate governance. This can be an uncomfortable place to sit. However, the benefit of the GC role is to identify where the tensions are, to see how they play out and to be prepared. They can then step into a role of mediator to allow for clearer conversation. Effective leadership also involves mentoring junior lawyers and fostering a culture of continuous improvement and ethical practice.

Relationship Building

Building and maintaining strong relationships with key stakeholders is essential. A GC must be adept at influencing and driving buy-in from the board, executive team, and external partners. This requires a deep understanding of stakeholder perspectives and the ability to communicate legal concepts in a clear and compelling manner.

Communication Skills

Exceptional communication skills are a hallmark of an effective GC. Is your internal brand consistent? How do you show up and how clear is your messaging? This includes the ability to articulate a clear vision, convey complex legal information in an accessible way, and advocate for the company’s interests both internally and externally.

Cultural Awareness and Emotional Intelligence

High levels of cultural awareness and emotional intelligence (EQ) are vital. A GC must navigate diverse cultural contexts and understand the nuances of interpersonal dynamics – enabling them to resolve conflicts, and lead with empathy and integrity.

Key Requirements for Success

To succeed, a GC must act as a bridge between various stakeholders, ensuring that legal considerations are integrated into all aspects of the business. Proactivity is key; predicting challenges and acting as a problem solver rather than merely a decision maker sets top GCs apart. A focus on outcomes, staying updated with legal and industry developments, and building trust through integrity are critical.

The role of a GC is multifaceted, requiring a blend of legal expertise, strategic insight, leadership, and strong interpersonal skills. By embodying these attributes, GCs can effectively navigate the complexities of their role and contribute significantly to their organisation’s success.

Tanja Albers is a Partner, Major, Lindsey & Africa

LEGAL COMMENT OF THE WEEK

TOPIC: Home-schooling in the light of the Sara Sharif murder case

COMMENT BY: Rachel Frost-Smith, Legal Director in the Family team, Birketts

“Decisions about schooling should be made by all those with parental responsibility for a child and in the absence of an agreement the court will decide. If one parent wishes to home school a child and the other does not then the court will make a decision based on what it considers to be in a child’s best interests by reference to the welfare checklist in the Children Act 1989. The court will make a specific issue order.

 “When a child attends school then there is an opportunity for regular oversight of the child’s welfare by adults outside the family. If there are safeguarding concerns about a child then there are established channels for these to be raised through.

“Whilst there are circumstances where it may not be in a child’s best interests to attend school; particularly where a child has special characteristics and requires additional support, smaller class sizes and so on, in general school provides an opportunity for a child to develop skills in addition to any academic teaching.

“If a child is home schooled then there should be oversight by the local authority not only of what a child may be learning academically, but of their welfare and development.

“It is hoped that the comments of the judge in this case will prompt an examination of the role and responsibilities of local authorities in relation to home schooled children.”

TOPIC: BDW Trading Limited v Ardmore Construction Limited in which BDW was able to revive a stale contractual claim – making it susceptible to adjudication – because of Ardmore’s deliberate concealment of missing cavity barriers.

COMMENT BY: Mark Pritchard, Partner, Howard Kennedy (who lead the team representing BDW)

“This is a hugely significant ruling for the construction industry as a whole and for any parties engaged in housebuilding. We now have clarity that both claimant housebuilders and their defendant contractors can refer to adjudication all the building safety cases which have threatened to clog up the courts for the next ten years or more.

“The decision is consistent with public policy, as the government looks to release pressure on the courts system by directing certain types of cases away to other forms of dispute resolution. Moreover, it reflects the recent development of case law in relation to adjudication business where, through cases such as Murphy v Mayer, Aspect Contracts v Higgins and Bresco, the Courts have sought to extend the ambit of adjudication.

“Crucially this ruling has confirmed that a party to a construction contract, who can bring an adjudication at any time, may do so after the usual contractual limitation periods expire.”

TOPIC: BT’s success in defeating the £1.3 billion collection action claim brought on behalf of landline customers as the UK Competition Appeal Tribunal (CAT) rules that prices charged for specific services were excessive but not unfair. 

COMMENT BY: Mohsin Patel, Director and Co-Founder at litigation finance broker Factor Risk Management.

“Given the CAT’s finding that BT’s prices exceeded the benchmark significantly and persistently, this will be a bitter pill for the class representative, his lawyers and backers to swallow. Inevitably, they will be considering the judgment carefully and considering potential grounds for appeal. Therefore, there may still be some light at the end of the tunnel.

“For many, it will be deeply regrettable that the first full opt-out trial to be heard in the CAT has failed. However, this should not detract from the fact that there has been a number of recent high-profile settlements in favour of consumers, which indicates that the CAT regime is creating a positive impact overall and affording redress where previously there was none.”

TOPIC: The Law Commission’s scoping report on financial remedies in divorce and dissolution which was published this week

COMMENT BY: Judit Kerese, Associate, Stowe Family Law

“The Law Commission’s scoping report into Financial remedies on divorce and dissolution published after much anticipation on 18th December, providing an investigation into the existing legal framework.

The main issue identified by the report is that the wide discretion the court has encourages subjectivity across judges and cases. Every case is treated uniquely, so people can be given different advice about outcome expectations. The overarching argument is that this uncertainty is promoting dispute rather than settlement.

The report has been widely welcomed in the family law community as a helpful summary of the issues professionals in the industry face day-to-day. Although no two cases are ever the same, the report’s recommendations for potential models of new legal frameworks would provide better expectation of a fair outcome and more certainty in what can be a tense and stressful time for individuals and families.

Whilst the report focuses on frameworks for financial remedies, i.e., how couples divide assets upon divorce, it touches on other areas of family law that could, and, in the eyes of many family lawyers, should, be considered for reform, including consideration of conduct in financial cases (particularly domestic abuse), and the treatment of pensions on divorce.

Perhaps most interesting for couples, however, is the discussion of pre and post-nuptial agreements. Pre and post-nups are not currently legally binding, but can have decisive weight in court if prepared correctly, and each party has received independent legal advice. However, the report recognises that the current treatment of nuptial agreements is subjective, even if the couple intended for it to be binding.

The Law Commission revisit the option of a “Qualifying Nuptial Agreement”, mentioned a decade ago in their 2014 report. Such an agreement would not only hold weight in court, but be binding to the parties providing it adhered to the criteria and legal framework. This would mean more certainty in an increasing number of financial disputes, and even reduce the number of couples needing to go to court, although notably nuptial agreements can be diverged from in order to meet the needs of each individual.

It is hoped that the government will consider the report with an interim response shortly, as well as a full response in due course. I hope that with a cohesive framework in place, couples would be able to move through divorce more amicably than the current uncertainty allows for, ensuring they are fully aware of what a fair outcome would be.”

TOPIC: The English Devolution White Paper.

COMMENT BY: Peter Ware, Head of Government, Browne Jacobson

“The scale of these sweeping reforms chimes with the government’s assertion this is a ‘devolution revolution’, which has potential to transform local government into a simpler, more efficient system.

“The creation of strategic authorities and enhanced powers for elected mayors should ensure that every region has a seat at the table nationally, while also removing complexity and duplication in a system that has become a complicated patchwork of arrangements. If the general public and businesses have a better understanding of how local government works, they will be more likely to engage with it.

“Although government will hope that the creation of strategic authorities will streamline local decision-making, this won’t automatically be the case and will require lots of work to ensure efficiencies are delivered.

“Local voices must also not become ignored. Like with the updated National Planning Policy Framework that establishes a ‘stick’-led approach to new development, it’s crucial that communities feel their views are heard in decisions affecting their lives.

“District, borough and indeed all councils must therefore work hard when considering their proposals for local government reorganisation to ensure the localities currently covered by districts and boroughs are adequately represented in new unitary authorities.

“Collaboration between new strategic authorities and their elected mayors will also be vital. In some cases, unitary councils and regional councils will be split across different geographies, as will some district and boroughs.

“With the government imposing mandatory housebuilding targets on each area, authorities must work together where new developments and associated public infrastructure will impact on neighbours.

“More broadly, while Whitehall is obviously keen on driving efficiency in this reset, it mustn’t forget that the true essence of devolution is supposed to provide a bespoke approach to each area’s specific set of opportunities and challenges.

“By standardising governance, powers and funding, there’s a risk of over-simplification in how we tackle very complex and fast-changing issues.”

TOPIC: The MoJ’s response to the consultation on Revisions to the Medical Reporting Process for Road Traffic Accidents Claims 

COMMENT BY: Andrew Wild, Head of Legal, First4InjuryClaims

“It beggars belief that the MoJ has taken 14 months to respond and yet still can’t give a date as to when fixed costs will be uprated in line with inflation.

“MROs play an important role in helping injured claimants get access to justice and their fees, like all fixed costs, should be reviewed regularly to ensure the sustainability of the market.

“There has not been an increase since 2014 so any progress, however slow, must be welcomed, but I hope it will be sooner rather than later.

“The OIC has previously said that medical reports not being uploaded to the portal in the volumes expected is thought to be the main reason for settlement delays, so anything that may speed up that process, which currently stands at more than 320 days, should be a priority.”

APPOINTMENTS OF THE WEEK

BROWNE JACOBSON

Phil Pugh is joining Browne Jacobson as a partner in the corporate team in the firm’s Cardiff office. His appointment reflects the success of the Welsh practice with the headcount having tripled since 2023.

Previously with Acuity Law Pugh more than 15 years of experience and specialist experience in technology, healthcare and education sectors. He has acted on a wide range of high value and cross border transactions including recently advising on the sale of a Premier League football club to an American consortium.

“This year marks a significant moment for our corporate practice strategy. Richard Cox, Partner and Head of Browne Jacobson’s corporate team. “We took the decision to expand our teams across the UK and Ireland and, in doing so, we’ve significantly enhanced our capability to navigate complex domestic and international transactions across our key sectors. Our rising directory rankings and robust financial performance validate our approach, and we are excited about the positive impact Phil will bring to the team and our expansion in Cardiff.”

We hope that you have found this edition of the LEGAL DIARY interesting (and even useful). If so, please circulate it to colleagues.

As to next week – Very Best Wishes for Christmas but we shall continue to tick over during the holidays so please continue sending your diary-type stories, legal comment and insights plus latest appointments to fennell.edward@yahoo.com