Edward Fennell’s LEGAL DIARY

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

October 7 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: LAWYERS AS CATALYSTS OF ENTERPRISE?

Economically it looks like things are going to get a lot worse before they get better. But with drive, they WILL get better. And maybe lawyers – or at least law firms – should be playing a bigger role in stimulating, supporting and sustaining that process by lending a hand pro bono to new and growing businesses.

This week we feature the Anthropy event taking place in early November at the Eden Project in Cornwall in which the the legal and professional services group Ampa  group is taking a key role. We also cover Cooley’s support for the Tech Nation’s Upscale programme and an announcement has also been made this week about the Harneys Tech Accelerator Program. So lawyers can do more than passively provide their professional services. They can help jump-start the market as well.

The LegalDiarist

+ LEGAL DIARY OF THE WEEK

– Missing Whiplash Claims? Then spice them up

– Lawyer in Eden

– Enhanced Insights at Ropes

– Cool Tech Sponsorship

+ CONTRIBUTED ARTICLE OF THE WEEK

AUTO- ENROLMENT REFORM GIVES EMPLOYEES A CHOICE

by RHIANNON BARNSLEY

LEGAL COMMENT OF THE WEEK on the Law Commission’s proposals to update the Arbitration Act 1996 and surprise impact of ‘No-fault’ Divorce

LEGAL APPOINTMENTS OF THE WEEK at 11KBW, Serle Court, Quillon, Eversheds Sutherland’s

LAW DIARY OF THE WEEK

Missing Whiplash Claims? Then spice them up

Fraudsters are a creative bunch. As soon as the law blocks them off one way they come up with another ruse.

For example, whiplash claims were notorious for decades for being open to fraudulent abuse until recent reforms damped them down. But now they are resurging – but with a twist. According to HF, the specialist insurance industry legal services firm, there has been a sharp increase in the number of claims for non-whiplash injuries as claimants take advantage of a loop-hole to get bigger compensation payouts. While the amount of compensation for whiplash had been reduced there are additional awards available for other injuries. HF says that it is now ‘seeing alarming trends in claims data of increasing numbers of claims involving non-whiplash injuries, something that was rarely seen prior to the reforms and which could potentially cost the insurance industry multi-millions if not addressed’.

According to Jared Mallinson, Partner and Head of Counter-fraud at HF, almost 67% of claims (Official Injury Claims Data April-June 2022) of whiplash are now accompanied by injuries to wrist, leg, arm, chest, and to mental health. Using data from HOLT, an HF fraud assessment service, in 2020 around 70% of the claims assessed were whiplash only claims. That number reduced to 63% in 2021 and 45% in 2022. Since the start of the year, HF has seen non-whiplash injuries increase by around 46%.

“One has to question the source of such a marked increase in non-whiplash injuries being claimed, and whether those claiming such injuries falsely are alive to the potential consequences of making fraudulent claims,” said Mallinson.  “Whilst a lot of focus has understandably been on how to value such mixed claims over recent months, insurers also need to consider appropriate challenges to this new trend and the application of strategies to defeat unmeritorious and exaggerated claims outright.”

Lawyers in Eden?

Spot the speakers at Anthropy

While the old-style Davos is starting to look a bit jaded there is hope that the UK can develop its own grand forum for re-generation and fresh thinking at Anthropy, which will take place 2-4 November at the Eden Project in Cornwall.

Given current conditions – politically, economically and socially – any opportunity for a re-start must be welcomed. Anthropy founder John O’Brien MBE describes the event as a ‘launchpad for change’, which will offer an opportunity for an ‘ecosystem of leaders’ from all sectors to share thinking about ‘ambitious and progressive’ solutions to the challenges facing the UK.

Featuring a number of big names from a cross-section of British business, academia and civil society – including, for example, Eden Project founder Sir Tim Smit, London mayor Sadiq Khan, Cobra Beer founder Lord Bilimoria, prima ballerina Dame Darcey Bussell, shadow chancellor of the exchequer Rachel Reeves MP, and EY UK managing partner Hywell Ball – lawyers too should also be on the billing.

In fact, legal representation comes in the shape of the legal and professional services group Ampa whose CEO Sarah Walker-Smith will be speaking at various sessions throughout the three days, as well as chairing Ampa’s own spot.“We are delighted to be helping shape the first-ever Anthropy, which brings diverse experiences together to discuss how we can move forward together as a nation,” said Walker-Smith. “The long-term perspective of business transcends short-term political considerations and as business leaders, we can – and should – lead the way to ensure business is both purposeful and profitable, benefiting our people, clients, communities and the environment.”

NOTE: Ampa, includes law firm Shakespeare Martineau, consumer law brand Lime Solicitors, planning consultancy Marrons Planning, uninsured loss recovery experts Corclaim, cyber security company CSS Assure, Sussex law firm Mayo Wynne Baxter, and strategic advisory consultancy Coadax.

For more on Anthropy go to https://anthropy.live/home

Enhanced Insights at Ropes

It’s pretty cool – but non-U – at the R&G Insights Lab

The law, as the saying goes, is an ass – but only when it fails to take account of the complex human factors entailed in many disputes. Ropes & Gray has been pioneering a new approach thorugh its R&G Insights Lab which is believed to be the legal industry’s first—and only— analytics and behavioural science consulting practice.

To supplement its skill-base Ropes has just appointed  Nitish Upadhyaya ( image above) as the new Director of Behavioral Insights within the team. Upadhyaya is a trained behavioural scientist, with an MSc in Behavioural Science from the London School of Economics but he started his career in the law industry as a litigation lawyer advising clients on complex financial services cases. As a result, he can bring to his new role a knowledge of applied behavioural science frameworks while also appreciating the complexities of applying behavioural insights in legal contexts. The expectation is that he will play a critical role in continuing to grow the Lab’s behavioural science practice in areas like compliance, ethics and risk, and organizational culture. 

“Nitish’s unique background as both a legal innovator and behavioral scientist will rapidly accelerate the Lab’s ability to deliver our clients creative, human-centred solutions,” said Zach Coseglia, co-founder and leader of the Lab. “Clients increasingly demand that we join them in the hunt for better ways, particularly when addressing areas of risk that involve human behavior and organizational culture.  Nitish’s experience and training as a lawyer and behavioral scientist—and his previous work as a leader in the space of user-centric design—is what’s needed to deliver.”

Cool Tech Sponsorship

Another example of a law firm acting as a catalyst to promote new enterprises and growth comes from Cooley which is the legal partner of Tech Nation’s Upscale programme The goal is simple – help the UK’s fastest-growing tech companies overcome growth challenges and scale faster. Strikingly among the 35 companies which will constitute the next Upscale cohort nearly half have women founders.

“Tech Nation’s Upscale programme makes an enormous contribution to the success of the UK as a preeminent global tech hub,” said Aaron Archer, co-head of Cooley’s emerging company and venture capital practice in London. “We are proud to have coached and mentored a huge number of the UK’s most promising tech companies through our long-standing partnership with Tech Nation and are excited about working with the Upscale 8.0 cohort.”

Meanwhile Chris Coulter, a London-based Cooley partner and member of the firm’s diversity committee, added, “These firms will help lead the way for the many women tech startup entrepreneurs coming behind them.”

CONTRIBUTED ARTICLE OF THE WEEK

AUTO- ENROLMENT REFORM GIVES EMPLOYEES A CHOICE

by RHIANNON BARNSLEY

Rhiannon Barnsley

Nobody is thinking about auto-enrolment reform at the moment. Quite frankly, people are more concerned about how they are going to afford to put the heating on this winter or how they are going to pay their mortgage. Understandably, of course. However, this shouldn’t be used as an excuse by those with the power to make reform to continue pushing auto-enrolment reform to the back of the agenda.

The current auto-enrolment regime is too constricted. It needs to apply to more people. There is a bill currently in the Commons which aims to extend auto-enrolment to include 18+ year old employees and reduce the “qualifying earnings” threshold – that is earnings on which pension contributions are paid.

Although this is a step in the right direction it doesn’t go far enough. Minimum contributions also need to be examined, as does the £10,000 minimum earnings threshold. The current minimum contributions aren’t enough, especially when comparing the minimum 3% of salary employers must contribute to the equivalent employer contributions for those with defined benefit pensions – such as those received by employees in the public sector.

With the state pension age increasing, many employees with defined contribution only pension arrangements may find that they are having to work longer than planned because the amount in their DC pension pots is not enough. It is no secret that DC pensions are less generous than their DB counterpart. Although life expectancy has decreased slightly in the last couple of years, individuals with DC only arrangements may struggle with relatively small pension pots that are meant to last them for 20+ years.

Some may say that at a time where people are struggling to pay day-to-day expenses, they need the money right now rather than contributing part of their salary towards their pension.

But auto-enrolment doesn’t force people to save for their retirement – it is a choice. Employees deserve to be allowed to make that choice and receive what are essentially “free” employer contributions to their pension. Expanding auto-enrolment gives more employees that option.

Rhiannon Barnsley is an associate at Arc Pensions Law

LEGAL COMMENT OF THE WEEK

TOPIC: The Law Commission’s proposals to update the Arbitration Act 1996

COMMENT BY: Joel Seager, partner at Fladgate LLP, specialising in international arbitration, civil fraud and commercial litigation

While stakeholders continue to support the common law position that arbitration should remain private and confidential, the Commission has provisionally concluded not to propose the codification of the law of confidentiality.  Similarly, relying on the existing rules on arbitrator impartiality, the Commission does not propose that an express duty of independence for arbitrators should be introduced, but instead proposes to codify the common law rules so that arbitrators will have a continuing duty to disclose any circumstances leading to justifiable doubts about their impartiality.  The limited right to appeal to the court to overturn an award due to incorrect application of the law (section 69) is also not proposed to change. Overall the proposals are reformative but measured.  They seek to make arbitration more efficient and fair while not upsetting a winning formula. 

TOPIC: No-Fault Divorce

COMMENT BY: Caroline Elliott, partner and family law specialist at  Roythornes Solicitors

No-fault divorces are currently in their infancy but the new law seems to have made no real difference for the majority of cases which will still rely on legal representation to sort out children and money issues.”

Explaining to clients that they cannot now apportion blame, defend the case or seek costs from the other person has been an unexpected part of the new system. As lawyers we thought people would welcome the reduction in acrimony that no-fault divorce aims to provide, but it seems that some people feel cheated of the opportunity to tell the court what went wrong.

COMMENT BY: Andrew Woolley, Senior Partner at Woolley & Co

It’s concerning to see the apparent fall in the number of couples protecting their finances when they divorce. It suggests many UK citizens may be misinformed about how protected they are under the new divorce laws, and are becoming complacent because of it. Couples who are making joint divorce applications must be aware that they do not offer automatic financial protection nor guarantee the absence of financial disputes.

TOPIC: The surge in divorce enquiries

COMMENT BY: Sebastian Burrows, Managing Partner at Stowe Family Law,

The pandemic put many a marriage on the rocks, and the subsequent cost of living crisis pushed them over the edge. Essentially, this upsurge in marital breakdowns is symptomatic of the times we are living in. The effect of the cost-of-living crisis on relationships cannot be underestimated; even in the best of times, financial tensions are often cited as the reason behind a divorce enquiry. This is particularly true when a person feels their current lifestyle can no longer be maintained. 

 In the current climate, couples who decide to separate face the challenge of resolving their finances against a backdrop of spiralling costs and uncertainty, which is piling on the pressure. For cases that end up in the family court, the main priority (after the children) is the needs of both parties and when assets are limited, this becomes more challenging, and the definition of people’s needs will need to become more conservative.

Sound communication – which forms the bedrock of any healthy marriage – can be difficult to maintain over the years and without it, external forces are proving too strong to withstand.”

APPOINTMENTS OF THE WEEK

THE BAR

11KBW

Campaigner, writer, academic – and barrister

Professor Philippe Sands KC (above) has joined 11KBW. One of the best known members of the bar today, Sands has appeared before the European Court of Justice; the International Court of Justice; the World Trade Organisation dispute settlement organs; the International Tribunal for the Law of the Sea; the International Criminal Court; and the Special Court for Sierra Leone as well as countless arbitrations. He is also well-known academically as Professor of Public Understanding of Law at University College London, and Samuel and Judith Pisar Visiting Professor of Law at Harvard Law School. He is President of English PEN and on the board of the Hay Festival of Arts and Literature.

The author of significant books on international law he has also written on broader subjects including, most recently’ The Ratline’ (2020).“I am excited to be joining 11 KBW, an outstanding chambers with a serious commitment to further developing its profile in my fields of public international law and international sports arbitration,” he said.

SERLE COURT

Jennifer Meech (above) has joined Serle Court this week as a full-time member.

Well-known as an experienced chancery commercial barrister (especially in the areas of insolvency, company and property litigation) Meech regularly acts for public companies, SMEs and individuals, and is experienced in acting for clients who are in the public eye.We are thrilled that Jennifer has decided to join chambers,” says Kathryn Purkis, Chambers Director. “Jennifer is a fantastic advocate with a strong reputation for dealing with complex chancery commercial disputes. Her practice fits perfectly with Serle Court’s offering and specifically enhances our commercial litigation, insolvency, company and property litigation teams.”

Meech was chair of the Insolvency Lawyers Association Associates’ Network Committee for several years and is now a member of that organisation’s Technical Committee, in addition to being a member of the Chancery Bar Association, R3 and International Women’s Insolvency & Restructuring Confederation. She also sat on the Property Bar Association committee for several years and was the instigator of that Association’s annual essay prize.

LAW FIRMS

QUILLON LAW

Nicola McKinney (above) has joined Quillon Law as its new commercial litigation partner. Previously a barrister at Mayfair firm Grosvenor Law and at 4 King’s Bench Walk, McKinney has had nearly 20 years’ experience as a litigator with specialising in complex commercial and cross-jurisdictional disputes, particularly fraud and breach of trust claims. She is highly experienced in executing and advising on worldwide freezing orders and other forms of interim relief.

Her extensive multi-disciplinary background has included working on the most complex cases,including simultaneous criminal and civil disputes, coordinated legal and media attacks, and multiple proceedings ongoing in several jurisdictions. She has acted for and against foreign governments and government institutions, and in cases regularly involving reputational and political sensitivities. She is also called to the Bar in The Bahamas and has advised in relation to Bahamian Law. 

Quillon Law has grown from one to seven fee earners in the course of the past year and receives high-profile instructions from a strong, global referral network. McKinney’s appointment reinforces Quillon’s commercial disputes and fraud platform as it seeks to expand its brand.

EVERSHEDS SUTHERLAND

Martin Sandler is joining Eversheds Sutherland as a partner in its Financial Services practice group. He was previously at EY where he was an Associate Partner and Lead Financial Services Regulatory Partner but his career has ranged widely across private practice (including Berwin Leighton Paisner and Bird & Bird) and in-house for ten years at Bank of America Merrill Lynch where he was head of EMEA equity counsel. He has extensive experience in the regulation of asset management, banking, wholesale markets, transactions and markets infrastructure. He also has significant experience in wealth management, payments, fintech and crypto, consumer finance and insurance regulation.

“I’m thrilled to welcome Martin to the firm,” said Michaela Walker, Partner and Head of Financial Services, Eversheds Sutherland. “He is a highly regarded, experienced professional who brings an intrinsic understanding of the level of service excellence and legal technical competence our clients have come to expect. His arrival strengthens our financial services practice and enhances our team’s ability to meet the increasingly complex needs of our clients.”

E-VENTS

Revisit ESG Conference: Recordings

Photo Credit: Evgenia Eliseeva.

Want to revisit what you heard or couldn’t make the event? We are very pleased to release the full plenary conference videos from our event, Reimagining the Role of Business in the Public Square, held on Thursday, September 15, 2022. You can access all the public portions of the day on the Center on the Legal Profession’s YouTube page or by clicking the button below. You also view a snapshot of photos on our website.
 Watch the entire conference here.
We will also be preparing a conference readout, including substance from the afternoon’s concurrent thematic groups—and we will be in touch in the coming weeks to share more. Stay tuned!
 View photos from the conference here.
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