Edward Fennell’s LEGAL DIARY

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

October 28 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: THE RAAB TEST

The UK feels a little less crazy that it did this time last week. A solicitor neighbour who works for a finance company said that if Boris Johnson had been back in NO. 10 by Monday evening then there would be no point in coming to work. His American investors would have dried up. That did not happen. But Dominic Raab did get a second shot at being Lord Chancellor.

As one of our ‘Legal Commentators’ (below) observes, “I hope that Mr. Raab has learnt lessons from his first tenure in that role. He must work with the profession to ensure crisis is averted.”

There is no question that Rishi Sunak is ‘serious’ about the economy. But how serious is he about other aspects of Government? The conduct of ‘Second Chance’ Raab will tell us a lot.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Burges Salmon proves its Green Credentials at the PMI’s Awards

– Bar Council Employed Bar Awards 2022 – Everyone’s a Winner

– LawTech funding available from the MOJ

– Bounce Back Loans fraud – maybe not so bad after all?

+ LEGAL COMMENT OF THE WEEK on Dominic Raab, the Belsner and Karatysz judgment and trans pupils

+ CONTRIBUTED ARTICLES OF THE WEEK

– JOINT DIVORCE APPLICATIONS – MORE PLEASE! Joanna Toloczko explains why joint divorce applications should be encouraged

– UKRAINE WAR LEAVES SURROGACY-INTENDED PARENTS IN LEGAL LIMBO reports Sarah Wood-Heath

+ APPOINTMENTS OF THE WEEK at Stevens & Bolton and Thomas Mansfield

+ E-VENTS

LEGAL DIARY OF THE WEEK

Burges Salmon proves its Green Credentials at the PMI’s Awards

The pensions industry held its Pinnacle Awards on Tuesday in the lavish surroundings of the Londoner hotel in Leicester Square and hosted by Strictly star Ore Oduba. Among the many categories devised by the Pensions Management Institute perhaps the most significant was ‘Impact on Climate – Firmwide Environmental Initiative’ which was picked up by a delighted team from Burges Salmon.

The scope of the award covers corporate behaviour including everything from energy efficiency and waste management to recycling and reducing use of non-sustainable plastics. “This is of particular importance in the context of [our] Pensions team’s advice to pensions schemes and employers in relation to ESG requirements,” said the firm.

 According to partner Richard Knight, who heads up the firm’s Pensions practice, “It is fantastic to receive our award for Impact on Climate and it’s great to see that these efforts and the combined success of the team in the past year has been recognised.”

Burges Salmon is a founding member of the Legal Sustainability Alliance and the Net Zero Lawyers Alliance. It is also a signatory to the One Planet Pledge, a member of the Bristol Green Capital Partnership Climate Leaders Group and participates in the CDP (Carbon Disclosure Project). The firm also backs ‘Trees for Life’ which supports a reforesting, conservation and rewilding project, with offsets accredited to the UK woodland carbon code. (But what’s their line, one wonders, on Bonfire Parties?)

Bar Council Employed Bar Awards 2022 – Everyone’s a Winner

Following the awards theme  we cannot disregard one of the most overlooked branches of the legal sector – the employed Bar – which also held their awards beano earlier this week.In contrast to the Pensions Management Institute, however, they veered away from any show-biz showiness and instead plumped for their home grown talent to hand out the awards – Mike Jones KC, Chair of the Bar Council Employed Barristers’ Committee, Sir Peter Gross, Master Treasurer of Gray’s Inn, and Mark Fenhalls KC, Chair of the Bar Council.

“The employed Bar is about exceptional individuals working in excellent legal teams, and through the awards we can shine a spotlight on their work, whether in the private or public sectors, or the Armed Forces,”  said Mike Jones KC.

It is certainly true that the award-winners work in a remarkably broad array of sectors. For example, John Swords, the ‘Employed Barrister of the Year in the Public Sector’ is based in NATO andplayed an active role in negotiating and drafting the NATO Summit Communiqué in June 2021. John Battle ‘Employed Barrister of the Year in Commerce, Finance, or Industry’  is a barrister for ITN and was involved in drafting the Reporters’ Charter, which was adopted by the Ministry of Justice in 2022.And Commander Caroline Tuckett RN of the Naval Legal Services – the ‘Employed Barrister of the Year in the Armed Forces’ is Lead Legal Adviser – International Law for the Royal Navy and led the debate around the legal use of autonomous warships.

Without them, one wonders, where would we be?

LawTech funding available from the MOJ

Despite the computer-driven chaos in our courts the Ministry of Justice (MOJ) is still pushing the notion of the UK’s position ‘as a ‘world-leading destination for legal services’ in relation to emerging technologies.

“The MOJ sees the growth of lawtech and innovation in the delivery of legal services as vital to a flourishing legal sector and to ensuring that UK legal services remain a leading choice for international business,” it said this week as it announced the details of a second phase of investment in the digital transformation of the UK’s legal sector.

There will be £3.016 million available to be spent over 2 years from April 2023 to March 2025 as part of the the LawtechUK programme delivered by Tech Nation. The aim behind it, explains the MOJ, is ‘to help develop a culture of innovation within the legal services sector; increase understanding of the benefits of lawtech in legal service providers of all sizes; support the development of technology which will increase access to legal services and aim to reduce unmet legal need; and help grow the economic contribution of the legal sector.’

The MOJ goes on to say that the objective to enable the UK’s jurisdictions to become the ‘foundation for emerging technologies’ and to help grow the legal sectors’ economic contribution. ‘This is because as an increasing volume of legal disputes relate to emerging technologies it is vital to the jurisdiction’s international competitiveness that English and Welsh law supports the resolution of these disputes,’ it explains.

Competition for the funding is open to applications from UK-based registered entities and the applications process opens next week on 2 November (it close on the 13^th December). To find out more get in touch at mojlawtechgrant@justice.gov.uk.

Bounce Back Loan Fraud – Maybe not so bad after all?

As you might have noticed, one of the few criticisms of Rishi Sunak that seemed to strike home in the past week (aside from the re-appointment of Suella Braverman) related to the level of fraud to which his Covid support measures were vulnerable. After all, it is widely acknowledged – notably by the National Audit Office – that the Bounce Back Loan Scheme was brought in too quickly for a fraud prevention strategy to be implemented.

But just how bad did it get? The latest figures quoted by the National Audit Office suggest that between £3.2 and £6.3 billion of the total cost of the Government’s £96.9 billion emergency Covid-19 support, was claimed in error or fraud. It was only in September 2020 that banks started to get to grips with the backlog with 150,000 ineligible claims being blocked. 

And now a suite of enforcement actions is being applied, explained Jeremy Asher, Consultant Regulatory Lawyer at Setfords this week

Firstly, the banks identify suspicious applications and use traditional anti-fraud measures such as Cifas markers after issuing default notices, closing down and freezing accounts which block access to credit and banking facilities for 6 years. “Challenging such decisions is a difficult, technical and specialist area of law,” says Asher. “Where default notices are issued repayment plans are negotiated with the banks.”

The Insolvency Service then takes the cases where it is apparent that businesses have been wound up.  “Companies House is now refusing to allow applications by companies wishing to be struck off the register which had previously applied successfully for Bounce Back Loans,” Asher explains.

In fact, back in November 2020 it had been predicted that as much as £26 billion could be lost to fraud.  So things could have been a lot worse. Maybe Rishi is off the hook.

LEGAL COMMENT OF THE WEEK

TOPIC:  Dominic Raab’s appointment as Justice Secretary.

COMMENT BY: Mark Fenhalls KC, Chair of the Bar Council

 “I have written to the Lord Chancellor to congratulate him on his re-appointment. It is essential that public confidence in law and order is restored and we are keen to work with him and his colleagues to improve the justice system and clear the backlogs in all jurisdictions. We recognise that these are incredibly difficult economic times, but justice is at the core of our country’s values and is an essential public service that must be properly maintained.”

COMMENT BY: Professor Chris Bones, Chair of CILEX

“CILEX welcomes back the Lord Chancellor and Secretary of State for Justice, and we look forward to continuing the positive and constructive relationship we built when he was last in office. We hope that he will bring some continuity to the justice system and will complete the vital work that he previously commenced to secure change that will improve the social mobility and diversity across the legal profession.

“It is crucial that we do not face any further delays to reforms, we specifically want to see the promised removal of the barriers to allow trial ready CILEX Lawyers to aid the court backlog by working as Crown Prosecutors, the removal of the final barriers to judicial appointments for lawyers from diverse backgrounds and for barriers to CILEX professionals becoming duty solicitors removed as recommended by CLAR.

“We look forward to meeting with the Lord Chancellor as soon as possible.”

 COMMENT BY:   Julian Hayes, senior partner at Berris Law

 “Dominic Raab’s return as Justice Secretary is unfortunate, and I fear does not bode well for the profession and in particular the courts and criminal justice system.

 He had failed to engage with professionals to resolve the crisis. Perhaps it reflects the ‘difficult decisions’ that the PM and Chancellor have referred to when it comes to considering cuts in public services?

 Regrettably, I do not consider that we are in good or reliable hands with this latest version of a conservative government. I hope that I am wrong and that Mr. Raab has learnt lessons from his first tenure in that role. He must work with the profession to ensure the crisis is averted.”

TOPIC: The sacking of a Primary school teacher for refusing to address a transgender pupil as a boy

COMMENT BY: Robert Lewis, Partner at Mishcon de Reya,

“Schools are being placed in an extremely difficult position on this matter. Gender reassignment is a characteristic which is protected from discrimination under the Equality Act 2010 but there is the potential for a conflict with somebody else’s religion or philosophical beliefs. Schools are left to interpret a very complicated and developing legal position and there has been no new guidance from the Department for Education taking account of recent case law. The DFE and the Equality and Human Rights Commission are due to publish joint guidance for schools next year and it cannot come soon enough.“

TOPIC: The Court of Appeal’s rulings on Belsner and Karatysz.

COMMENT BY: Jack Ridgway, Chair of The Association of Costs Lawyers

  “The decisions on Belsner and Karatysz will have a significant impact on solicitors’ retainers and how challenges to their costs are dealt with. They also presage significant reform to the costs system, not least the outdated distinction between contentious and non-contentious business in an era of pressure to resolve disputes without issuing proceedings.

 “Given the particular authority of the bench that sat in these cases, our specific hope is that the process to reform the costs provisions in the Solicitors Act 1974 will finally begin. All roads lead back here and change is needed urgently. Legal practice has evolved a great deal over the past 48 years and the regime is simply not up to the task of settling costs disputes quickly and efficiently. Without this, and despite the court looking to close down challenges to deductions from damages, we will still see plenty of cases on solicitors’ bills and retainers.”

CONTRIBUTED ARTICLES OF THE WEEK

JOINT DIVORCE APPLICATIONS – MORE PLEASE!

In the second in our series on the implications of The Divorce, Dissolution and Separation Act 2020 Joanna Toloczko explains why joint divorce applications should be encouraged

The implementation of the Divorce, Dissolution and Separation Act 2020 in April of this year gave couples the opportunity to make a joint application for a divorce for the first time, but uptake has been slow with only around one in five couples opting to make a joint application.

The decision to opt for a sole application by one spouse or a joint application by both acting together has no legal bearing on the arrangements for the children or the property and financial split, so why should joint applications be encouraged?

In my view the divorce process should not be seen as a forum for a battle between two spouses – the “applicant” and the “respondent”. Instead, it should be seen as a process involving two adults who have accepted with regret that their marriage has come to an end and are now seeking to terminate their legal relationship in a co-operative, respectful and cost-effective way. A joint application promotes that approach.

In the wake of the celebrity focus on “Conscious Uncoupling” an increasing number of couples are looking for a “good divorce” following which they can maintain a friendship and co-parent their children in a positive way. A joint application will help couples to achieve this.

A joint application for divorce can help to redress the power imbalance between the “leaver” and the “left” and pave the way for constructive negotiations over other aspects of the divorce. It has psychological and emotional benefits for both parties in that they both retain control over the process and find out about important steps in the divorce process at the same time.

There are also practical advantages. If you make a joint application, there will have to be a degree of co-operation about the provision of the marriage certificate and payment of the court fee at the beginning of the process, which may save time and money in the long run. The couple are also required to agree the factual contents of the application at an early stage which can avoid time consuming applications to amend the contents down the line.

Given the practical and emotional pros of the joint application process, family solicitors should do more to encourage clients to consider this approach.

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

UKRAINE WAR LEAVES SURROGACY–INTENDED PARENTS IN LEGAL LIMBO

Russia’s invasion of Ukraine has exposed vulnerabilities for international surrogacy arrangements, reports Sarah Wood-Heath (below)

The Russia-Ukraine war is causing immeasurable damage to millions of people living both in Ukraine and overseas. Among those affected are intended parents from the UK who had entered international surrogacy arrangements there.

Prior to the invasion, Ukraine was a popular destination for intended parents considering surrogacy arrangements. Commercial surrogacy is legal in Ukraine. The country also recognises intended parents as the legal parents of the child from birth, providing greater legal certainty for them, the surrogate and, importantly, any children.

In the past, intended parents typically travelled to Ukraine before the child was born to complete the paperwork and then registered the birth using their own names on the Ukrainian birth certificate. However, following the invasion, many intended parents find themselves unable to arrange travel to and from Ukraine. Neither can they move forward with fertility treatment using gametes stored in Ukrainian fertility clinics.

In March, the Government sought to address concerns by offering to give visas to Ukrainian surrogate mothers and their immediate family members to enter the UK for up to three years. They also agreed they would be prepared to grant visas outside the immigration rules for children already born there because of the exceptional circumstances.

While this was welcome news, until a Parental Order is granted in the UK courts, the surrogate will remain the legal parent of the child and if she is married/in a civil partnership her husband/partner the other legal parent. This means the intended parents are not recognised as parents until such an order is made. There is therefore a period of limbo where they do not have rights or responsibilities in respect of the child they are caring for.

Some UK-intended parents who still have sperm, eggs and embryos stored in fertility clinics in Ukraine may wish to transport these to another country to continue treatment. However, this involves complying with strict rules set out by the Human Fertilisation and Embryology Authority. If these conditions are not met, it may be possible to apply for special directions.

With uncertainty prevailing it is important for any intended parents to seek specialist legal advice in respect of the immigration status and family status relating to their surrogacy arrangement and seek the support that is available to help them.

Sarah Wood-Heath is a Partner in Clarke Willmott’s office in Southampton. She advises on all areas of family law including surrogacy, co-parenting, donor conception and relationship breakdown.

APPOINTMENTS OF THE WEEK

STEVENS & BOLTON LLP

Sarah Cardew (above) is joining Stevens & Bolton LLP as a Partner in its corporate tax and incentives practice. Previously Head of Corporate Tax at Irwin Mitchell, Cardew has extensive experience advising clients across the corporate, real estate and commercial tax matters. Her experience covers a broad spectrum of issues relating to mergers and acquisitions, stamp duty land tax, capital allowances, and VAT. Her views have often been sought on draft VAT legislation and she is a member of the Law Society’s VAT and Duties sub-committee.

Cardew’s arrival brings the total number of partners at the firm to 45. “We have bolstered our ‘all equity’ partnership this year with five excellent hires and two fantastic internal promotions,” said Managing Partner, James Waddell.“Sarah and her practice are a great fit for our firm and we will add strength in depth to our highly regarded corporate tax practice.”

Stevens & Bolton LLP has around 150 lawyers, approximately a third of them partners in the firm’s all-equity partnership, many of whom joined from City law firms.

THOMAS MANSFIELD SOLICITORS

Kate Rayner, formerly head of a regional office of Stowe Family Law, has joined Thomas Mansfield Solicitors as a Partner. With 25 years of experience in all aspects of family law and a specialism in financial disputes. Rayner advises high-net-worth individuals on medium-to-high-net-worth cases involving private family run businesses, shareholdings in public companies and complex trust structures. She is a trained collaborative lawyer and mediator and is a Resolution accredited specialist in advanced family matters and children law.

“Kate is a brilliant addition to our family law team, which is much in demand in our local and wider communities,” said Neill Thomas,Managing Partner at Thomas Mansfield. “Kate’s approach is perfectly aligned with our team’s focus on the constructive resolution of family issues, and her experience in alternative dispute resolution will enable us to meet a growing societal need for better support and solutions for families.”

Commented Rayner, “There has certainly been an increase in the number of divorces over the past few months and during times of financial uncertainty it is not uncommon for unhappy couples to speak to a family lawyer. Whilst there is no ideal time to get divorced I do not foresee that the number will increase and the current crisis may actually lead couples to delay getting divorced.”

E- VENTS

Policy Exchange invites you to:

Is the Immigration System working post-Brexit?

And the sign-off…..

We hope that you have found this edition of the Legal Diary interesting – and maybe even useful. If so please circulate to colleagues.

And we look forward to receiving your legal diary news, insights and contributions for next week’s edition. Please send to fennell.edward@yahoo.com