Edward Fennell’s LEGAL DIARY

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

October 21 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: DO WE YET GET IT?

‘Severe issues with the main computer network for the Ministry of Justice have led to cancelled hearings and other problems in the courts system over the past few days,” reported the Legal Action Group. That was back in 2019 – and things have hardly improved since. Meanwhile this week Dame Meg Hillier MP, Chair of the Public Accounts Committee, said: “The prison and probation service is reliant on outdated technology that is swallowing taxpayers’ money just to stand still. The existing system is at constant risk of failure.” 

Although British problems are particularly bad they are not unique. A couple of years agoa virus shut down Philadelphia’s online court system, bringing network access to a standstill. ‘The problems started unexpectedly: suddenly, no one could seem to access the system to file documents,’ reported a US journalist at the time. 

So we are right to be nervous as we become increasingly dependent on IT to drive legal processes. But it could get worse. According to the data presented by US IT consultancy  Atlas VPN 49% of IT professionals believe innovation in AI presents an existential threat to humanity. So, somehow between the incompetence and potential malevolence of our IT systems the lawtech whizzkids need to get a grip. Or are our computers already too clever by half?

TheLegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Getting Ready to Rumble in Manchester

– Institutional Racism in the Justice System: Who knew?

– For One Night Only – CELL OUTS

– Mansfield Rules the Waves

– Compliance Among Licensed Conveyancers

+ CONTRIBUTED ARTICLES OF THE WEEK

– Family lawyers need to understand how menopause impacts relationships and careers, says HELEN YOUNG

– The reasons for the low take up of joint divorce applications explained by JOANNA TOLOCZKO

SEND ( Special Educational Needs and Disabilities) is an ‘access to justice’ issue and the legal community is helping through pro bono support, explains EMILY FOGES

+ LEGAL COMMENT OF THE WEEK on the Independent Inquiry into Child Sexual Abuse and National Menopause Day

+ APPOINTMENT OF THE WEEK at Osborne Clarke

+ E-VENTS

LEGAL DIARY OF THE WEEK

Getting Ready to Rumble in Manchester

A new force is surfacing on the UK’s activist law scene with the appearance of Lanier, Longstaff, Hedar & Roberts LLP in Manchester. The invention of two barristers Tom Longstaff and Duncan Hedar, both of Exchange Chambers, working in conjunction with Mark Lanier (founder of the Texas-based The Lanier Law Firm) and his colleague Kevin Roberts, the new firm aims to bring group legal actions against companies in areas where, it is said, UK lawyers have often struggled. These are likely to include pharmaceutical and product liability actions as well as well as competition litigation.

The new firm will be an ABS and is already recruiting. It expects to have around 15 staff by the end of its first year and to announce its first case within the next month.

“We see the UK as an emerging market for the work we do,” said Mark Lanier. “The same injustices that we’ve seen in the US have affected people in the UK too and so we want to provide the same representation. The misuse of power is certainly not just an American phenomenon.”

Meanwhile according to Kevin Roberts, “Many firms have swerved certain cases, such as product liability and pharmaceuticals, because they require significant know-how and resource to run. Lanier, Longstaff, Hedar & Roberts will have both. This is a great opportunity for us to combine my and Mark’s knowledge of the business of class actions with Tom and Duncan’s legal expertise and understanding of the UK market.”

Should be one to watch.

Institutional Racism in the Justice System: Who knew?

Hot on the heels of further revelations of racism in the Metropolitan Police comes a report by experts from The University of Manchester and barrister Keir Monteith KC that there is also extensive racial bias among the judiciary . A survey of 373 legal professionals revealed that 95% of them believed racial bias plays some role in the processes or outcomes of the justice system with 29% saying it played a ‘fundamental role’.

A majority of respondents had, it seemed, witnessed one or more judges acting in a racially biased way towards a defendant in their decision-making with Asian and Black people the most common targets of judicial discrimination.

Ironically these findings are almost completely at odds with the outcome of the five-year strategy launched by Lord Chief Justice Lord Burnett of Maldon which was designed to enhance equality and diversity in the judiciary This, it is said, did not consider the issue of racism or even mention ‘racial bias’. The Manchester researchers found a profound disparity between the conclusions of the strategy – that the justice system is basically fair and that progress has been made – when compared to the widespread views and experiences of the legal professionals whom they had surveyed.

“Racism in the justice system has to be acknowledged and fought by those at the highest level, but at the moment there is complete and utter silence – and as a consequence, there is no action to combat racial bias,” said Keir Monteith KC. “It is impossible to have diversity and inclusion if the system itself unfairly discriminates. There has to be a hard reboot to protect and revitalize the rule of law and civil rights for all citizens – a good start would be to follow the recommendations in our report.” 
 
Professor Leslie Thomas KC, who wrote the report’s Foreword added that, “Our judiciary as an institution is just as racist as our police forces, our education system and our health service – this is something that cannot be ignored for any longer,” 

The report is available to view at https://documents.manchester.ac.uk/display.aspx?DocID=64125.

For One Night Only – CELL OUTS

Worth going along to the Pleasance Theatre, London next Friday, the 28 OCTOBER for CELL OUTS by Harriet Troup and Ella Church, a pair of ex-Prison Officers turned abolitionist theatre makers. Between them they have created what they call an autobiographical dark comedy exploring life working behind bars – the brutality of what Prison Officers face, prisoners are forced to endure, and the sacrifices people make to survive. 

Here’s what the critics say:

A ‘hilarious, gut wrenching and eye opening show about the criminal justice system’, (Heather Jeffery, 5*s) ‘Cell Outs’ is a true story.

 (★★★★★ London Pub Theatres, ★★★★★ Medium, ★★★★ The Reviews Hub, ★★★★★ LondonTheatre1

And for further information on the company, the work it does and future tour dates go to https://www.glasshousetheatre.co.uk Book Tickets

Mansfield Rules the Waves

While there are concerns about racial prejudice among the judges in the UK, Kennedys is now able to boast that it has achieved Mansfield Certification Plus in both the US and the UK in its first submission year.

Meanwhile, for its part, Clifford Chance has achieved Mansfield Rule certification in the United States for the sixth year running. It has also achieved it in the UK at first time of asking.

 The Mansfield Rule is a 12-month certification process that measures whether law firms have met certain equality targets. These include considering at least 30% women, racial and ethnic minorities, LGBTQ+ lawyers, and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions.

Meg Catalano, US regional managing partner and global board member at Kennedys said that the firm has always been committed to D&I. “But participating in Mansfield provided both a structure and a mechanism for accountability that allowed us to move beyond words to concrete action. It was a turning point for all of us and has allowed us to continue to identify concrete goals for the future.”

For his part Michael Bates, the Clifford Chance Regional Managing Partner for the UK said, “Part of the firm’s strategy is to change the rules, and through Mansfield we are identifying areas where we can do just that. It is supporting our work to increase representation across Clifford Chance, and this undoubtedly will benefit us and our clients, through diversity of thought and advice.”

 Sarah Twite, Senior Wellbeing Manager who led Mansfield Certification for the UK added, “Key for us was the clarity of communication around what we’re trying to achieve. The 30% diverse rule is memorable, impactful and clear. It has enhanced our approach and focus on how we are progressing against our targets.”

Compliance Among Licensed Conveyancers

There are interesting signs coming from the Council for Licensed Conveyancers (CLC) that it will be increasing its efforts to encourage firms and lawyers from other parts of the legal profession to switch to CLC regulation. What is particularly striking about this move is that the Chair of the CLC is Dame Janet Paraskeva who, at an earlier point in her career, was the Chief Executive of the Law Society – so she knows a thing or two about what’s involved.

Meanwhile the CLC has just closed its consultation on refreshing its ethical principles and strategic objectives while also opening a new consultation on Continuing Professional Development. (See the CLC website).

The CLC has been going through a process of ensuring that it is a ‘proportionate regulator’. Against a background of the COVID crisis chief executive Sheila Kumar said,“We were very clear with our advice that firms should not take on more work than they could cope with, and the message seems to have got through. At the same time, we are working on ensuring that, when we do have to take regulatory action – and we’re talking about a small number of such actions relative to the number of firms and set in the context of the huge number of transactions CLC lawyers handle – we use the most appropriate of the range of regulatory interventions available to us.”

Aside from critical cases the CLC normally intervenes with a system ‘assisted compliance’ when a firm is getting into difficulties. However, as Ms Kumar points out, this timeframe is not infinite and requires a firm commitment by the practices to put things right. “We are now making more use of the other powers we have, such as warning letters and Enforcement Determination Decisions, to speed up the process where firms are not moving quickly enough.”

CONTRIBUTED ARTICLES OF THE WEEK

Family lawyers need to understand how menopause impacts relationships and careers, says HELEN YOUNG

Tuesday of this week marked National Menopause Day. While celebrities such as Davinia McCall and even HRH The Duchess of Wessex have spoken openly about their own menopause and brought the topic into the mainstream, much more needs to be done.

A survey published in The Independent in 2021 found that 65% of women felt that menopause had impacted their marriage with two thirds of respondents saying that they did not think their spouse or partner properly understood the physical, mental and emotional repercussions menopause causes. Last week, the Menopause All-Party Parliamentary Group recommended that all women are given a menopause check at the age of 45 in recognition that when left untreated, menopause can destroy relationships and careers.

To ensure the best outcomes for their clients, family lawyers need to be aware that menopause or perimenopause may be having a negative impact on their clients’ relationships and may even be the cause of marital breakdown. Practitioners need training and to be able to access information so that they are attune to the impact menopause can have. They need the confidence and knowledge to tactfully ask clients if menopause could be having a negative impact on their quality of life, their relationship and career. If the answer is yes, clients will have more faith in their legal team if they know that they are aware and understand the issues they face. They need to recognise the impact on the women experiencing the menopause and their partners/spouses who are also affected.

Equally, if family lawyers understand the challenges faced by menopausal clients, they will be in a better position to secure the best outcomes for them. For example, they may be able to secure an enhanced financial settlement if the client is unable to work or is only able to work part-time because of severe menopause symptoms.

For some time, employment lawyers have advocated menopause workplace policies and menopause champions to support women who may be experiencing debilitating symptoms. These initiatives serve to protect employers from legal claims but also ensure that valuable female talent feel supported thereby improving retention rates. Family lawyers are behind the curve. This needs to change.

Helen Young is a partner and head of the family team at Debenhams Ottaway.

The reasons for the low take up of joint divorce applications, explained by JOANNA TOLOCZKO

The Divorce, Dissolution and Separation Act 2020 which came into force on 6th April this year brought about a ground-breaking change in divorce laws by introducing what has been coined as “no fault” divorce. In short, spouses no longer have to rely on adultery, unreasonable behaviour or an extended period of separation to bring an end to their marriage. Instead, either one (sole application) or both of them (joint application) can start the process simply by making a formal statement that the marriage has irretrievably broken down.

Recent provisional statistics released by HMCTS indicate that the take up of joint applications is much lower than expected with only around one in five of all divorce applications between April and July being a joint application. Why is that, given that the new law promotes a more co-operative approach?

It is highly likely that divorcing couples who do not use solicitors to guide them through the process are unaware that they can make a joint application. Others may be unsure of the legal consequences of a joint application and may be under the mistaken impression that it could impact on the arrangements for the children and/or property and financial issues.

Teething problems with the cumbersome HMCTS divorce portal may also play a part. The joint application process involves additional steps over the sole application process in that only one spouse or their solicitor can prepare the joint application but the other spouse or their solicitor is required to check it. This additional step can lead to delays and increased legal costs.

The court fee of £593 to apply for a divorce is also likely to play a significant part in the statistics. Those on a low income can claim an exemption but with a joint application, both spouses must come within the means test to be exempt. In all probability, where one party can claim exemption, many couples will opt for a sole application.

Finally, while the new system was designed with the aim to make the divorce process less acrimonious, I suspect that some people feel cheated that they are no longer able to cite blame when they apply for a divorce. While this may be the case, the new system does allow clients to issue divorce proceedings against their spouse. For some, this may well be a salutary process.

Joanna Toloczko is a partner in the family team at RWK Goodman.

SEND ( Special Educational Needs and Disabilities) is an ‘access to justice’ issue and the legal community is helping through pro bono support, explains EMILY FOGES

Last Friday in the doctor’s waiting room I overheard a quietly desperate conversation between a young, single mother and the receptionist. Tianna’s four-year-old daughter has just started school, but that morning drop-off was almost unbearable. She knows the school can’t meet her needs. The teachers can’t cope with a child who is completely non-verbal and suffers from severe ADHD. Her notes showed that Tianna has been asking for help for two years, and yet waiting lists mean it will be September 2023 before her daughter is seen by a paediatrician for a formal diagnosis.

When my daughter was four she was already under the care of paediatricians, and the moment school decided they couldn’t support her we mobilised a complex plan involving advice from other parents and some very expensive lawyers. It was still a long and painful battle.

Around 1 in 6 children are legally entitled to specialist support in education, but only about 1 in 24 manages to secure the EHCP (Education and Health Care Plan) that unlocks it. Clearly not many families have the sharp elbows and financial resources to fight like we did.

I sat with Tianna and signed her up to Support SEND Kids, where she posted a question:

If I pay £2,500 for a private diagnosis will the Local Authority accept that as the starting point for my daughter’s EHCP?’

Within 6 hours an education lawyer working pro bono picked up her query and responded. It turns out the diagnosis is a red herring. The EHCP should be based on her needs, and her school should be able to articulate these well. Her £2,500 could be a waste of money.

This is why I became a trustee of Support SEND Kids. There are parents like Tianna in every doctor’s surgery, every school playground, every company. It is likely that 1 in 3 of your colleagues is affected. If you have the expertise to help, or indeed need help, please sign up to the platform and answer or ask a Q&A today to help all children get access to the education they are legally entitled to.

EMILY FOGES is a Trustee, Support SEND Kids

For more go to: https://supportsendkids.org/

LEGAL COMMENT OF THE WEEK

TOPIC: The report of the Independent Inquiry into Child Sexual Abuse.

 COMMENT BY: Liam Goggin, Head of Abuse Law at Simpson Millar

The report marks an important milestone in the lives of those people that we represented throughout the inquiry. It is now utterly undeniable that there have been systemic failings in the way that child sexual abuse allegations were dealt with by a number of public bodies, over a sustained period of time.

It is positive that the Inquiry has identified that child sexual abuse claims are unique, and proposals to remove limitation in these cases is very sensible, and long overdue. It is simply unacceptable, and in many cases totally unrealistic, that abuse survivors are expected to bring a case within three years of turning 18 if they were abused as a child.

 We welcome many of the Inquiry’s recommendations, and the onus is now very much on the Government to act upon them. Only then will justice truly be done for our clients, and only then will we have the reassurances needed that no child should have to suffer as so many have in the past.”

TOPIC: National Menopause Day (and a survey finding that that 7 in ten women in the UK blame the menopause for their divorce.  

COMMENT BY: Farhana Shahzady, founder of the Family Law Menopause Project and director at London and South East family law firm Family Law Partners,

This ground-breaking survey of women confirms the link between menopause and divorce and further highlights the lack of understanding within the family law profession of the impact of perimenopause and menopause. Of deep concern to me is that more than half of the respondents said that perimenopause or menopause had (or will) make it harder for them to save for retirement and/or reduce their ability to save into pensions. This means that women may face real financial hardship as they approach retirement, post-divorce/separation. It is clear that the family law profession, as in wider society, needs to appreciate the reality of menopause and that we must be better equipped to support the many clients who are profoundly affected by menopause”.  

COMMENT BY: Mike Treemer, Employment Partner at the City law firm Fladgate

 “Menopause has emerged to become a leading well-being issue in recent years and there has now been an Employment Appeal Tribunal judgment confirming that its symptoms can amount to a disability for the purposes of the Equality Act 2010.  It is increasingly on the agenda of employers and HR teams.  However, many workplaces have struggled with how to tackle the topic – there remains a general lack of awareness of the symptoms of menopause among managers and how it can affect employees.  There is also a lack of materials and resources on how to support employees experiencing symptoms. We expect this topic to continue to be a talking point for many years to come and for the law and workplace practices to adapt accordingly – similar to the evolution and recognition of mental health as a well-being topic over the past ten or 15 years.”

COMMENT BY: Moira Slape, Chief People Officer, Travers Smith

 “We want to create an environment where individuals feel confident enough to speak out about their symptoms and ask for support and adjustments at work, and where line managers feel able to have these conversations without feeling out of their depth. The key point here is educating our people so that they become familiar with our policy, know what support is on offer either as the individual affected or as a colleague, and feel able to effectively support someone going through the perimenopause and menopause and have open and honest discussions about how this might be affecting them in the workplace.

A significant portion of our people will experience symptoms and it is crucial not only for the mental health of our people, but also for the success of our business, that we create a culture where everyone feels they can ask for support, perform their roles to the best of their abilities through all stages of their careers, and thrive in an open and inclusive environment.”

APPOINTMENT OF THE WEEK

OSBORNE CLARKE

Conrad Davies (above) has been elected as the new UK Managing Partner at Osborne Clarke with effect from 1st January 2023. Currently a corporate Partner and the International Head of the Urban Dynamics Group, Davies will succeed Ray Berg, who had been in the function for eight years.

Having spent more than 17 years at Osborne Clarke, Conrad became a Partner in 2011 and was previously at Jones Day.  He helped to establish the firm’s corporate real estate practice 10 years ago and also headed up the firm’s international real estate and infrastructure sector for seven years. Prior to that he spent some time in business.

Most recently he was also appointed as International Transformation Leader for Urban Dynamics, which is focused on supporting clients as they navigate the legal impacts, challenges and business opportunities arising from the rapid changes taking place in modern cities and towns, particularly around the future of work and living, smart cities and urban mobility.

E-VENTS

BIRD & BIRD

Webinar: The DSM Directive one year on (part II) Article 15: A power shift back to the publishers? 

Wednesday, 26 October 2022
12:00 – 13:00 BST  
DSM Directive – Article 15:
A power shift back to the publishers? 

Article 15 of Directive 2019/790 builds on and follows a number of national initiatives aimed at remedying declining revenues in the press sector. Over time, the internet and new online services – such as news aggregators and media monitoring services – have been frequently indicated as being partially responsible for this phenomenon, due to the impossibility for press publishers to control and contrast unauthorised uses of press content by these subjects.In part two of our DSM Directive webinar series, we welcome voices from different markets, including the UK, who won’t transpose the Directive, Italy, Denmark and the Netherlands. 

Joining us will be guest speakers, John HaltonAssistant General Counsel, Financial Times and Karen RøndeCEO, Danish Press Publications’ CMO (DPCMO), along with Bird & Bird copyright experts, Eleonora Rosati and Clemens Molle.

 Join us for an hour of brilliant conversation and our panellist’s honest views on the DSM Directive and how its implementation is having an effect on legal issues in the media sector now and how it’s working (or not working) in different markets.


Reply to events@twobirds.com Subject Line: DSM Directive – 26 October

AND FOR NEXT WEEK

Assuming that the LegalDiarist has not stumbled inadvertently into being elected Prime Minister come this time next week then we look forward to being back with more legal diary news, comment and insights at the same time time and place.

So please continue to send your stories to fennell.edward@yahoo.com

And if you have found this edition interesting or even useful please send on to your colleagues.