Edward Fennell’s Legal Diary – Edition 62

June 18, 2021

Friday June 18th 2021 Edition 62

Diary news, commentary, insights, appointments and e-vents from the legal world

SHORT THOUGHT FOR THE WEEK

– SOMEWHERE FAR AWAY

Whether it be this evening’s England v. Scotland at Wembley or the decision to postpone the Covid lockdown, most people on this island have better things to think about right now than the instability of devolution in N. Ireland. Yet the chaos in Stormont in the past 48 hours illustrates how vulnerable democracy and the rule of law are within this part of the UK. It is no coincidence then that a group of human rights NGOs, academics and lawyers has warned that new ‘legacy’ proposals from the UK government relating to the actions of British soldiers during the Troubles “would breach both international law and the domestic Human Rights Act, deliver impunity, bury truth recovery and fundamentally undermine the rule of law”.

The concern is that the legacy bill proposed in the recent Queen’s Speech, “Departs unilaterally from an existing agreement with the Irish government and local political parties.” No-one would suggest that bringing harmony to N. Ireland is easy but this year – the centenary anniversary of partition – underscores how just difficult it is. Combined with the row about the post-Brexit ‘protocol’ agreement one has to wonder whether the rule of law still has much currency on that side of the water.

But, lets be honest, who cares?

The LegalDiarist

In this Week’s Edition

+ LEGAL DIARY OF THE WEEK

– A&O Backs Women in Institutional Investors

– Sustainability is Crucial in a post-pandemic world in Bird & Bird report

– Sports Injuries: It’s Dangerous Out There

– SLAPPS Not Claps for Human Rights Defenders

THIS WEEK’S MEDLEY OF QUICK COMMENTS on mandatory jabs, the Manchester Arena Bombing Inquiry, the Infected Blood Inquiry and extensions to protection from evictions and statutory demands

LEGAL CAMPAIGN OF THE WEEK The ramifications of the great Post Office scandal

LEGAL QUESTION OF THE WEEK –The NHS Digital Database – What are the Privacy Challenges?

APPOINTMENTS OF THE WEEK at Pillsbury and Thomson Snell & Passmore

E-VENTS

LEGAL DIARY OF THE WEEK

A&O Backs Women in Institutional Investors

“Our vision is to create a platform for women to share knowledge, network, and find mentoring opportunities,” comments MaameYaa Kwafo-Akoto of Allen & Overy who is now the lead partner for the firm’s new forum for aspiring women in the global institutional investor market.

The Institutional Investor Forum is part of A&O’s wider Gender Equality Network and will offer a series of virtual and in-person events and networking opportunities for women based in financial centres across Africa, Asia, Europe, the Middle East and North America.

Membership will be open to women at a range of institutional investor organisations including asset managers, development finance institutions, family offices, government agencies and so on in both the public and private sectors. And the benefits, the firm points out, will include practical advice by industry-leading coaches, panel discussions on female advancement plus mentoring and networking.

The infinitive highlights that only around one-fifth of senior positions in the sector are occupied by women. “We want to help talented and ambitious women progress by giving them the confidence to be decision-makers, the ability to thrive in male dominated industries, and ultimately help them to reach personal goals,” says the firm adding that this is “regardless of whether you know us or instruct A&O, because it’s the right thing to do.”

For more information on how to join the Institutional Investor Forum contact InstitutionalInvestorForum@allenovery.com.

Sustainability is Crucial in a post-pandemic world

Sustainability is now core to the business strategy of many industry leaders with a growing number of organisations getting involved and shaping sustainability strategies to achieve measurable goals. This is the key message which emerges from a new report by technology-focused law firm Bird & Bird and its consultancy arm OXYGY.

Back in the Spring, Bird & Bird asked 110 clients in luxury, fashion & retail, food & beverage, and hotels, hospitality & leisure across a number of international markets to provide their perspective on a range of sustainability-related topics.

“With Bird & Bird’s focus on disruption and innovation, we were keen to understand how our clients are addressing one of the most important issues to date: sustainability,” said Graeme Payne, head of the international Retail & Consumer sector group. “One key finding from the survey that struck us was that more than a third of respondents said sustainability increased in importance in the last year, an outcome that was already underway but accelerated by the pandemic.”

Among the conclusions were that

Retail and consumer companies whose sustainability strategy is further advanced than their competitors are 2.4 times more likely to see sustainability as being a significant driver of innovation.
They are also three times more likely to see collaboration as extremely important.
One third of respondents said sustainability increased in importance in the last year
Nearly 80% of all respondents reported that “finding innovative ways to collaborate externally (competitors and partners) is important or extremely important to achieving their sustainability strategies. .

Significantly, the personal ambitions of employees are more advanced than their companies with most respondents (60%) interested in being more involved in sustainability efforts in their companies.

Sports Injuries: It’s Dangerous Out There

As Danish footballer’s Christian Eriksen’s cardiac arrest at the Euros revealed, football can be a major health risk even to those who appear to be super fit.Whether Eriksen can resume his career remains to be seen. The experience of others who have suffered the same episode is not encouraging. So the financial consequences for a world-class player could be momentous.

But an injury on the field even for less well-known players can be just as devastating as the case this week of Leicester City Women’s Football Club player, Mercedes White illustrates. At age 22 Mercedes White, suffered a severe knee injury during a match. Two months following her injury and with no signs of improvement, she was referred to Nottingham University Hospitals NHS Trust, and had reconstruction surgery for a ruptured anterior cruciate ligament and meniscal tear. It took a year before she could return to the game but within minutes of resuming her knee gave way leaving her in agony. Subsequent investigation showed that the ligament had been mispositioned and it took a further year before White could once more kick a ball in a competitive way.

The case was taken up by personal injury specialist Pryers Solicitors who have just achieved a £22,000 settlement for White from the Trusts. It has been a painstaking task. “Leicester City Women’s Football Club is one of the higher leagues of women’s football and Mercedes White is a professional footballer,” said Tamlin Bolton. “Anything that keeps Ms White off the pitch ought to be addressed by specialist doctors, physiotherapists and solicitors.” Whether the pay-out is commensurate with the damage done is probably a matter for the Video Assistant Referee.

SLAPPS Not Claps for Human Rights Defenders

Strategic Lawsuits Against Public Participation (SLAPPs) are being increasingly used by ‘powerful entities’ to marginalise their critics according to the Business & Human Rights Resource Centre. The charge is that the legal system is being used to silence human rights defenders and communities who speak out against corporate abuse to protect our rights and shared environment. “Mining, agribusiness, logging and palm oil were the sectors where these types of lawsuits were most commonly used to drain the resources of those who speak out in support of human rights and the environment,” says the Centre which cites more than 350 cases since 2015 of ‘business actors’using this tactic to intimidate and bankrupt their critics.

The key findings of the report were that

SLAPPs are expensive for Human Rights Defenders (HRDs). The amount of damages sought by those filing SLAPPs in just 82 of the cases totalled to over 1.5 billion USD (information on damages sought was not available for the remaining cases).

Most SLAPPs (304) were brought against individuals, as opposed to organisations (38), underscoring the intimidating nature of the tactic. [Both individuals and organisations were SLAPPed in 13 cases.]
SLAPPs are usually groundless and vexatious in nature. Of the cases for which we could find outcomes, more than four in five alleged SLAPPs were dismissed, dropped or ruled in favour of defendant.
The highest number of alleged SLAPPs occurred in Latin America (39%); Asia was not far behind (25%). There were also high numbers of SLAPPs recorded in France.
Lady Nancy Zuluaga Jaramillo, Legal Researcher, Human Rights Defenders & Strategic Lawsuits Against Public Participation at the Business & Human Rights Resource Centre, commented, “What we have recorded is likely to be just the tip of the iceberg in what is essentially a direct attack on freedom of expression and the legitimate defence of human rights and the environment. Although civil society and human rights defenders have started pushing back against the use of SLAPPs, there is an urgent need for companies, investors and the legal community to step in.”

THIS WEEK’S MEDLEY OF QUICK COMMENTS

TOPIC: On mandatory jabs for careworkers…

Care together, jab together? Image courtesy of Unison

‘No jab, no job’ could be a dangerous approach for employers to take. There is not enough evidence to suggest taking the vaccine makes everyone’s working environment safe. If an employer tries to force their employees to receive the jab or decides not to hire someone based on their refusal to get the jab, it could result in employment claims, for unfair dismissal and/or discrimination.

However, in circumstances where a person is working in the healthcare sector, or with vulnerable children and adults, and refuses to get the vaccine, there may well be more validity to the request by the employer for vaccinations. This will be made more complicated when the government introduce mandatory vaccinations for care workers, as there will be questions raised over how to define a ‘care’ worker, to determine who would fall within the scope of this new policy. The introduction of the mandatory jab, could give employers more flexibility in implementing a workplace vaccination policy.

Kate Hindmarch, partner in Employment Law at Langleys Solicitors

TOPIC: On the Publication of the Manchester Arena Public Inquiry and Volume One of the recommendations.

“Today we welcome the publication of Volume One of the Chair’s report in the Manchester Arena Inquiry. There has been a rigorous and thorough investigation by the Chair, with examination of a substantial volume of complex evidence. It is clear that he has taken the submissions of the families on board and has kept them at the heart of the process.

The failure to detect Salman Abedi in the City Room was a result of serious and unacceptable breaches which the Chair has rightly identified. Put simply, a number of organisations failed to keep the public safe on the night of this terrible attack. Our specialist Safety practice will continue to work with the Inquiry Legal Team to ensure that the monitored recommendations are implemented and, as in previous inquests into terrorist attacks where we have represented bereaved families, we hope these changes will reduce the likelihood of similar attacks in future.”

Hogan Lovells (which represents a number of the victims’ families)

TOPIC: The Government’s decision to extend until March 2022 the ban on evictions of businesses that stopped paying rent due to the coronavirus crisis

“Whilst we must strike a balance between tenants and landlords, kicking the can down the road yet again is not solving the problem. If the parties cannot agree now, they will not change their minds in six months when yet further arrears have accrued and more pain will be felt all around.

“We have a specialist court – the Business and Property Court – full of experienced Judges who deal with business and property matters. They are quick, adaptive and business oriented. Surely a simple and cost effective mechanism can be put together to bring about a resolution or solve the problem, at least for the next 12 months.”

Mark Gardner, Excello Law

TOPIC: The Government’s decision to extend the deadline for the lifting of the restrictions on statutory demands and winding up petitions until 30 September 2021

“The Government has announced that they intend to further extend the restrictions on the issuing of statutory demands and winding-up petitions to 30 September 2021.

The move is intended to maintain the protection put in place for companies from aggressive creditor enforcement action, as a consequence of coronavirus related debts. Whilst this announcement may come as welcome relief for many, it further prejudices legitimate creditors by kicking the can down the road and delaying the inevitable insolvency of many so called “zombie companies”, whose debts have spiralled over the course of the past year and who continue to exist without any realistic hope of long term recovery.”

Jonathan Cole, Goodman Derrick LLP

TOPIC: The Infected Blood Inquiry announcement that it will be hearing evidence from many of the key figures in government in the 1980s who were involved in the disastrous policy which resulted in innumerable deaths and long term serious illness.

“This is a hugely important development for the Inquiry process because these figures are central to our understanding of what went on during the critical period in the 1980s when the Government should have been responding to the AIDS crisis and considering the implications for those receiving blood products.

“We believe these individuals did know and appreciate the risks but were slow to act. However, a clear account of who knew what, when and how this impacted decisions made at the time, has never been forthcoming. There has been a lot of buck-passing and hiding behind Government protocol until now. I cannot emphasise enough what a massive moment this is for my clients as, finally, we may begin to get closer to the truth and the heart of the problem which led to the suffering of so many.

“It is, of course, only right these key witnesses are called to give evidence and the Inquiry is to be commended for bringing them to the stand.

Des Collins, Senior Partner at Collins Solicitors, legal advisor to over 1500 people affected by the contaminated blood scandal

LEGAL CAMPAIGN OF THE WEEK

The ramifications of the great Post Office scandal – which saw hundreds of Sub-Postmaster convicted of crimes of which they were completely innocent – continue to rumble on (and will do so for many months to come). Here are extracts from a presentation given recently at University College, London by lawyer NICK GOULD of Aria Grace who acted pro bono for three of the victims – Janet Skinner, Tracy Felstead and Seema Misra – of the Post Office’s campaign of persecution.

“Perhaps it’s because during my years in practice I’ve always been a common sense, corporate / deal-doing lawyer, I found trying to help Janet Skinner, Tracy Felstead and Seema Misra over the last 15 months or so, particularly distressing. From when I first heard about this miscarriage of justice, I’ve been disgusted to learn how they and hundreds of others were treated by a dismissive and contemptuous legal system over two decades. No common sense allowed here. I wanted to try and help these extraordinary people, whose lives were destroyed unnecessarily and who are still suffering physical and mental scars decades later—and yes, I know this is not normally what lawyers talk about or what those involved in learning or teaching law, necessarily want to hear. But hear it more lawyers should. It appears that almost the entire legal world has been stunningly silent and found wanting; it still is.

We know Post Office head of security had put in place a protocol for shredding inconvenient documents. That should have raised a huge red flag, but apparently not. What was the direct and awful effect of lawyers and others covering up crucial evidence for years? “

The line pursued by the Post Office had irreparably damaging effects on the innocent victims. One example quitwd by Gould was

Seema Misra, Subpostmistress. “Seema was prosecuted for theft and false accounting by the Post Office in 2010. The judge told her “She had stolen from pensioners.” She was eight weeks pregnant when she was found guilty and imprisoned. She collapsed on sentencing and had to go to hospital. That same day was her elder son’s 10th birthday. She has said many times that had she not been pregnant, she would have considered suicide.”

Quoting a collague, Paul Marshall, who also acted pro bono, Gould said. “The real questions made urgent by the Court of Appeal’s 23 April 2021 judgment are are, on the one hand, who knew what, when, about the Horizon system’s propensity to fail and, on the other, who in the Post Office, in Fujitsu and in the Post Office’s owner – the government – were willing to see people imprisoned and denied justice in a ruthless scheme of deception intended to protect the Post Office brand at almost any cost; a scheme that in a curious fluke of justice has left the brand toxic and possibly valueless.”

LEGAL QUESTION OF THE WEEK –

The NHS Digital Database – What are the Privacy Challenges?

By Pulina Whitaker, Partner and Co-Leader of Morgan Lewis’ Privacy & Cybersecurity Practice

‘Eye Spy, what do I see?’ Image courtesy of Heads of State for UCLA Magazine

The Government’s controversial plan to create a database of all GP records over the past 10 years for sharing with third-parties is a challenge to implement from a privacy perspective. The implementation date of the database has been delayed from 1 July until 1 September 2021 to address privacy concerns from the British Medical Association and Royal College of GPs, as well as privacy groups including Foxglove.

The key challenge is that the records will continue to contain personal data, where the identifiers are removed or the data is otherwise “pseudonymised” so it is not directly identifiable but patients can be re-identified with other information. This kind of data is strictly protected by the UK’s implementation of the General Data Protection Regulation and, therefore, NHS Digital will need to comply with key obligations.

At the outset of the collection of GP records, it must provide each patient with a clear privacy notice regarding how the data will be collected from GPs, how it will be used, with whom it will be shared, how it will be protected and give patients certain rights to control their data including request that the processing is restricted or their data is deleted. They must comply with restrictive processing conditions, such as only use the data where necessary for scientific research too.

NHS Digital will also need to allow patients to access a copy of their data and ask for details of how it is being processed after it is transferred to the database. Finally it must require all organisations to protect the data to the same standard as in the UK, including through data transfer agreements where the data is transferred outside the UK or Europe to a country not otherwise deemed to have “adequate” data protection laws.

One of the concerns relates to the commercialisation of health data, where it is shared with commercial health providers around the world and, therefore, potentially creates a loss of control of the patient data for the relevant patient. The UK’s data protection authority, the Information Commissioner, has welcomed to the delay to the plan to allow for privacy concerns to be addressed and build trust with the public, who have until 1 September 2021 to opt-out in advance. The Information Commissioner’s Office has said it will work with NHS Digital to resolve the privacy concerns.

APPOINTMENTS OF THE WEEK

Pillsbury has appointed Antony Single as a partner in its Asset Finance team in London. Previously he was a partner at Clifford Chance helping to establish the firm’s asset finance practice in the Middle East.

Single has a broad range of financing and leasing experience including making use of commercial debt, warehouse facilities, capital markets, funds platforms, tax enhanced and Shari’a compliant structured financings. He also has extensive experience of airline restructurings and workouts.

“Much like our seasoned asset finance professionals around the globe, Antony really does it all in this highly-specialized sector,” said Mark Lessard, leader of the firm’s Finance practice. “The fact that he has thrived in both up and down markets was very attractive to the team. Likewise, he brings bona fide accomplishments in the Middle East, where we share many clients and interests.”

Thomson Snell & Passmore has appointed commercial lawyer Poh-Leng Devare as a new Partner in its Corporate and Commercial department. Having trained at Bryan Cave Leighton Paisner, Devare spent six years as in-house Commercial Counsel at Imperial College London before joining YouGov Plc where she was a Senior Commercial Lawyer.

Devare’s new new role involves dealing with agreements relating to technology, data and data protection, intellectual property (IP), procurement, agency, distribution, franchising and other commercial contracts.

Joanne Gallagher, Partner and Head of Corporate and Commercial at Thomson Snell & Passmore comments: “We are delighted to welcome Poh-Leng to the team. She brings with her a wealth of experience and commercial acumen combining both in-house and private practice, which positions her to genuinely understand the business and legal needs of our commercial clients.”

And finally – a pair of mergers

Wedlake Bell LLP and Moon Beever LLP have agreed to merge with effect from 12 July this year. Martin Arnold, Managing Partner of Wedlake Bell, said,“We are delighted to be joining forces with Moon Beever. The merged firm will enable us to enhance the offering to our clients in some of our core business areas – notably insolvency and restructuring, disputes, commercial property and private client.” The merged firm will bring together 71 Partners and a total complement of 217 lawyers. (The name of the new merged firm has not been revealed).

Axiom Stone Solicitors and DWFM Beckman joined forces on 9 June 2021 to become Axiom DWFM, creating a combined team of almost 150 people, including 19 partners, located across their several offices in London and Birmingham.

The merger will provide clients with access to comprehensive legal advice across Real Estate, Dispute Resolution, Insolvency, Family, Employment, Corporate and Commercial and Private Client & Wealth. accountants and tax advisers. It boasts particular expertise through its India and China desks.

E-VENTS

Panel Discussion: Sharing Stories of being LGBT+ and Minority Ethnic Tuesday 29 June 202113:00 – 14:00 BST

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