Edward Fennell’s LEGAL DIARY

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

for week ending June 3 2022

SHORT THOUGHT FOR THE DAY: ROYAL COURTS

Are the Queen’s Counsel taking today off, feet up, slippers on and enjoying a glass of fizz. And what about the residents of Her Majesty’s Prisons? Probably feeling relieved that at least they (or most of them anyway) had not been deprived of their freedom and banged up in palaces for a 70 year stretch? Then what about Her Majesty’s Inspectorates of Prisons, Probation and Constabulary? Are they out on the razz today?

Mind you, with all those street parties going on the scope for riot and mayhem is maximised. Maybe they should go easy on the prosecco. Otherwise they’ll have to start investigating themselves. Or call in Sue Gray who surely should have got at least an OBE out of yesterday’s gongs and now has a bit more time on her hands.

The Queen – or at least the concept of monarchical authority – is the lynchpin of our legal and criminal justice systems. All those sheltering under her auspices probably deserve a good day’s rest.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Lawyers as ‘Ethical Gatekeepers’ says IBA

– Sanctions? Don’t Count on Them (at least in Italy)

– OIC Delivering for Un-lawyered claimants

– Mentoring Scheme Gets backing from COMBAR

– Young Look at Baker McKenzie

– Scholarship Scheme from CILEX

+ LEGAL COMMENT OF THE WEEK from Depp vs. Heard, break clauses highlighting distress and audit reform

+ CONTRIBUTED ARTICLE OF THE WEEK

HIGH NET-WORTH PRE-NUPS: WHAT MAKES THEM STICK ?

By Katie McCann

+ APPOINTMENTS OF THE WEEK at Osbornes Law and addleshaw Goddard

LEGAL DIARY OF THE WEEK

Hot News from the International Bar – Lawyers as ‘Ethical Gatekeepers’ ?

Just published this morning. the announcement that the International Bar Association (IBA) is planning a project to examine the professional role of lawyers as ‘ethical gatekeepers’ within wider society and to help clarify their ethical responsibilities and obligations when providing legal services.

The goal is to forestall – or engage with – the increasing number of critics of lawyers but also to highlight the dangers of ‘undermining of the core values of the legal profession’. The involvement of top lawyers with the Russian regime and its acolytes is the immediate stimulus to action but the IBA points out that there have been ‘sustained charges levied against the profession in relation to perceived facilitation of illicit financial activity, enabling climate change and frustrating the achievement of the United Nation’s Sustainable Development Goals.’

It will be fascinating to see how it works out – it could be a game changer (or at least at attitude changer).

Sanctions? Don’t Count on Them (at least in Italy)

The Legal Diary team is grateful to the latest edition of Hogan Lovell’s ENGAGE Briefing for creating a mind-fog over the complications of the anti-Russian sanctions regime following the invasion of Ukraine.

The most baffling example (perhaps unsurprisingly) is the Italian procedure of asset freezing as laid down in Legislative Decree n. 109 of 2007. Hogan Lovell authors Andrea Atteritano and Giovanni Zarraare are brutal about the complexities and inconsistencies in the system – as a short quote demonstrates.

“[The] provision [about the making of payments due under a contract] creates a scarcely understandable distinction between judicial decisions and arbitral awards and could let a doubt arise with regard to the enforceability of credits arisen by means of arbitral decisions issued after the sanctions, notwithstanding the fact that the arbitral proceedings were started before the sanctions. In this regard, while a literal interpretation of the wording of the Decision could let us infer that these credits are not to be protected, a systemic interpretation – which takes into account the principle of substantive equality under Italian and EU law – should lead to the opposite conclusion.”

No wonder so many oligarchs decided to park their yachts in Italian waters. Confused? You should be.

OIC Delivering for Un-lawyered claimants

Now here’s a surprise. According to an analysis by Kennedys of the first year of operation of the Official Injury Claim (OIC) system unrepresented claimants are doing better than those with lawyers!

So far the data suggests that the OIC has not only delivered unrepresented claimants’ compensation more quickly but that – by virtue of not using a lawyer – the pay-outs are, in effect, higher.

However, warns the law firm, as the system enters its second year there might be some bumps in the road ahead. “The reforms have resulted in changes to claims management that are still bedding in,” says Kennedys. “The sector awaits the outcome of test cases that will provide some much-needed clarity on how claims that involve both tariff and non-tariff injuries should be handled – the data shows that only 11% of claims are ‘pure’ tariff cases.”

Obviously the coincidence of the new system and COVID means that it is far too soon to reach any long-term conclusions. Nonetheless, the number of claims appears to be stabilising at less than 60% compared to pre-Covid

“The most likely reasons for this are that minor claims are no longer worth pursuing given the reduced awards for whiplash, and the lack of profit for lawyers from damages-based fee agreements,” commented Ian Davies, partner and head of the motor practice group at Kennedys. “Fraudsters will also have been discouraged.”

What’s unclear, says Kennedys. is the extent to which higher-value claims are currently sitting in solicitors’ cabinets, waiting for action.

Plus there is the issue of public awareness. “Ultimately, the portal will only really deliver what it promised if people know about it and have the confidence to make their claims directly,” says the firm. “So there needs to be a real focus on improving awareness.”

Mentoring Scheme Gets backing from COMBAR

The mentoring scheme for under-represented groups at the Bar (which was set up a couple of years ago and now includes ten sets) will be taken forward by COMBAR (the association of commercial barristers) from 2022 onwards. 

The scheme pairs successful eligible candidates with practitioners for a series of one-to-one mentoring sessions.  COMBAR also hopes to organise a pupillage interview and application workshop and a social event, to which all mentors and mentees will be invited, in early 2023.

About 350 prospective applicants to the Bar have been matched with mentors so far but the involvement of COMBAR will massively increase the scope for participation with many more sets likely to be involved.

“We warmly welcome COMBAR’s involvement in the mentoring scheme,” said Brick Court’s Sarah Abram QC, a member of the committee that worked to set up the mentoring scheme. “ We are so pleased that the mentees who have participating in the first two years of the scheme have found it useful, and working with COMBAR will enable the scheme to go from strength to strength, matching more mentees with mentors.  We’re looking forward to working with COMBAR and with the 2022-3 mentees on this important project.”

Applicants wishing to participate in the scheme are requested to complete the online application form which can be found here. Application forms must be received by 4pm on Friday 16 September 2022.  COMBAR hopes that applicants will be informed as to whether or not they have been accepted onto the scheme within October 2022.

Young Look at Baker McKenzie

The University of Cardiff Law School hosted last week The Youth Justice Experiential Learning Simulation, “In My Shoes”in conjunction with Baker McKenzie in order to shine a light on the child justice system in Wales.

Maybe moving out of its comfort zone somewhat Baker McKenzie was involved what is described as an immersive ‘simulation’ programme aiming to to “reinvent” the way child advocates, child lawyers, judges, social workers, case workers, law enforcement and regular citizens, understand the systems that youth must navigate in difficult times. 

 “The simulation put every participant ‘in the shoes’ of a young person engaging with the systems that aim to address the needs of children and youth,” explained the University. “Many of these young people have experienced high levels of trauma, violence, instability, and loss. Using integrative teaching and simulations developed in collaboration with young people with lived experience, the simulation explored what it is like to move through various services and systems, including education, foster care, juvenile justice, homelessness, and more.”

Angela Vigil, Partner and Executive Director of Baker McKenzie’s Pro Bono practice said that the firm was delighted to bring the model – which it had we been developing with thought leaders in child rights – to the global stage, “This experiential learning effort is part of an effort to reimagine what youth see in the systems of justice they are forced to navigate,” she said.

 More information can be found at:  www.yexls.com

Scholarship Scheme from CILEX

The CILEX Foundation has now opened its Lawyer Scholarship and Bursary programme to new applicants. Designed to covers the cost of studying for the CILEX Professional Qualification (CPQ) and enabling participants to become a fully qualified CILEX Lawyer the programe launched last year.

Support is targeted at those under-represented in the legal profession and/or from a socially disadvantaged background. Eligible groups include young carers, those with a protected characteristic (as defined by the Equality Act 2010) previous receipt of free school meals or a history of being in care. Three of the 22 scholarships are Millicent Grant scholarships, open specifically to those from Black, Asian or other ethnic minority backgrounds.

“I spent time in care as a young adult and had a difficult family life after I left,” said Katie Thurston, one of last year’s scholarship winners. “When I saw the scholarship was open to candidates like me, I went for it. Finding out I had been successful was life changing. Over the years I had lost all faith that advancing in a legal career was possible for me as I simply didn’t have the financial means to pay for study.CILEX has opened up the prospect that I can qualify as a lawyer without a law degree and take my career as far as I want it to go.”

Sounds like ‘levelling up’ in practice.

LEGAL COMMENT OF THE WEEK

TOPIC: Depp vs. Heard

COMMENT FROM: Dr Charlotte Proudman, Barrister and academic

“When a trained High Court Judge (who knew how to handle the media) reviewed the evidence, he found Depp to have physically assaulted Heard on 12 of 14 occasions. But in the US where the court was a media circus, it became a popularity contest, which Depp most definitely won.”

TOPIC: Breaches of contract and interpretation of break clauses as companies seek to boost their finances

COMMENT FROM: Tahina Akther, barrister and co-founder at Wildcat Law

“We are increasingly being approached about breaches of contract and interpretation of break clauses in contracts, which is a clear sign that many companies are feeling the strain.

“We have also seen the number of legal challenges regarding so called penalty clauses increasing in an attempt to save money.

“The number of legal challenges is often a good indication for how businesses are faring as companies that are feeling the strain often need to resort to litigation to protect their income or reduce their expenditure.

“In fair financial climes, companies have the ability to settle bills on time or to see out contracts.

“Dither and delay is often a sign of a lack of ability to pay. Unfortunately, this appears to be the experience of our corporate clients.”

TOPIC: The Need for Audit reforms to result in right legislation, say small firms   

COMMENT FROM: Martin McTague, National Chair, Federation of Small Businesses

“It’s good to see the Department for Business, Energy and Industrial Strategy (BEIS) grasping the nettle on audit reform. As legislation is drawn up, the key to success will be making corporate Audit Committees directly responsible for reporting on payment and wider supply chain practice.

“When we were the first group to flag the ramping up of unreasonable payment terms at Carillion, six months before the company collapsed, nothing was done.

“In order for today’s measures to work, there must be inclusion of payment practices within Audit Committees’ remits. This reform would ensure a whole board awareness of payment practices. Without it, there will be more Carillions.

“Improving transparency at big corporates whilst easing unnecessary reporting burdens for small businesses is the right direction of travel.  

“It’s now a case of making sure the resulting Bill is fit for purpose as the legislative vehicle needed to make a real difference. We look forward to working with the Business Secretary Kwasi Kwarteng to ensure it does.”

CONTRIBUTED ARTICLES

HIGH NET-WORTH PRE-NUPS: WHAT MAKES THEM STICK ?

Johnny Depp and Amber Heard never had a pre-nup. But was that where it all started to go wrong? Apparently Depp reacted badly to Heard’s proposal to have one, perceiving it as her first step towards enjoying a profitable divorce. So if you are going to agree a pre-nup (which does more harm than good) it needs to be done with care explains Katie McCann

Pre nups are rising in popularity these days. My advice to clients is always…if there is any wealth to protect, why wouldn’t you get one?

They are not technically binding, despite calls from the Law Commission for legislative change. However, if they are entered into properly, the current state of the law suggests that the court is likely to ask ”why shouldn’t it be applied” in the event of a divorce?

The leading case is Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 and the practical principles to draw from this are as follows:

1. The agreement should be entered into freely and without duress.

It is no good having an agreement where one party is effectively bullied into it. This duress argument also extends to the amount of time in advance of a wedding that the agreement is finalised. Good practice is to have this signed off at least 28 days before the wedding. That means if you are thinking of having one of these agreements you should start seeing lawyers at the very latest two months before the wedding. Even the simplest of agreements can take some time to get on paper, be reviewed, tweaked and finalised.

2. There should be parity of advice.

Agreements will always carry more weight if both parties have had adequate legal advice. It is usually good practice that if one party instructs experts in this field, other suitable experts are proposed to the other party and the financially more well off party pays for the advice. An agreement can be made all the easier if another well versed expert is instructed for the other party. It takes the stress out of what can otherwise become quite an adversarial process.

3. There should be full and frank disclosure.

It is good practice to provide this with the draft agreement to the other party. This can be by way of list. The other party can reciprocate and if either has any questions or wants to see specific documents/valuations, then that should be made available. Each party should have the relevant information to inform their decision. They need to know what they are effectively signing away their matrimonial rights to!

4. The agreement should overall be fair.

This is often the hardest thing to consider. None of us have a crystal ball. However, practically, housing need and income need, bearing in mind the ages of the parties and whether there are any children should be considered. It might be that if you are dealing with a young couple that stages for review are built into the agreement.

By Katie McCann is a Founding Partner of family law firm Lowry Legal

LEGAL APPOINTMENTS OF THE WEEK

Osbornes Law

In a week when the country has been celebrating the fact that the reigning monarch in the UK has been 100% female for the past seventy years it seems appropriate that London law firm Osbornes Law has just announced an all-female promotion round. The firm now has a majority of women in its twenty-one partners.

At the top of the table Sophie Davies, who has been with the firm for 21 years, takes over as head of personal injury, the firm’s largest team,. Meanwhile Stephanie Prior, the head of medical negligence and Joanne Westcott, a family law partner are both made equity partners. Family lawyer Claire Andrews – who joined the firm in 2017 from Gardner Leader – has been appointed partner.

ADDLESHAW GODDARD

Simon Pollock has been appointed as a partner by the Investment Management Group (IMG) within Addleshaw Goddard to support the firm’s corporate real estate practice. Pollock has been with Bryan Cave Leighton Paisner where he focused on buying and selling corporate vehicles (onshore and offshore), often through complex structures, and establishing joint-ventures and management arrangements. Previous clients have included some of the UK’s largest institutional investment houses, private equity businesses and family offices.

“Simon is an experienced and well-known  name in the corporate real estate M&A and JV space,” said Yunus Seedat, Divisional Managing Partner, Corporate and Commercial at Addleshaw Goddard. “He comes with an extensive range of clients that will both strengthen our existing relationships and unlock new opportunities. 

Earlier this year, AG’s investment management team was voted “Fund Structuring Law Firm of the Year” at the Private Equity Wire Awards and was a finalist for “Funds Team of the Year” at The Lawyer Awards.

E- VENTS

We are aiming to be back next week so please send your diary news, legal insights and comment plus latest appointments to

fennell.edward@yahoo.com

Enjoy the rest of the Bank Holiday!