Edward Fennell’s Legal Diary – Edition 65

Friday July 14 2021 Edition 65

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

 

SHORT THOUGHT FOR THE WEEK

INTERPOL RED LICENCES: ‘GO TO JAIL’ CARDS?

Seen one of these?

The big news last night on the south coast media was the announcement of the release from confinement in Croatia of Southampton-based whistle-blower Jonathan Taylor who had given evidence against his old employer, Dutch oil firm SBM Offshore, in 2012.

Astonishingly the UK government would not intervene on his behalf with the Croatian authorities despite his cause being championed vigorously by former Tory minister Caroline Nokes MP. In brief, Taylor had done the right thing in exposing wrong-doing and his heroism should have been celebrated. Instead he was the victim of a retaliatory Interpol red licence issued by Monaco on trumped up bribery and corruption charges.

Monaco is not the only petty state to abuse the Interpol system. It is well recognised that Gulf states do it regularly. International collaboration in the fight against crime is vital. But maybe it is also important to apply some circumspection on the motives of those who issue them.

The LegalDiarist

 

 

In this Week’s Edition

+ THE LEGAL DIARY OF THE WEEK

Levelling Up in Leeds

– Gender violence adds costs to Criminal Justice

– Harneys: New Hands on the Wheel

  • IP Give-Away with Crowell & Moring

+ LEGAL COMMENTARY OF THE WEEK

WAGS AND WIGS comment from Collyer Bristow

– FIRE AND REHIRE comment from Langleys Solicitors

+ LEGAL ANALYSIS OF THE WEEK

  • Developments in Defined Benefits pensions with ARC Pension Law

+ APPOINTMENTS OF THE WEEK at Gide and HJ&A

+ E-VENTS with Brick Court, Bingham Centre, NQ Zebra

 

+ THE LEGAL DIARY OF THE WEEK

Levelling Up in Leeds

Is this still the REAL Leeds?

33 Bedford Row is doing its bit for levelling up by deciding to go north of Hampstead and establish 33 Bedford Row North. The new northern annex is now officially open full time at Park House, Park Square Leeds,” they announced this week.

Leeds has, of course, always positioned itself as England’s second legal centre (rather ignoring any claims from Birmingham, Manchester or Bristol) and 33BRN explains that it can now serve ‘Manchester, Newcastle, Liverpool, York and other thriving Northern cities’ as well as Leeds itself.  

“The leading common law set look forward to continuing to build ties within these communities and will always put the client, both professional and Lay, at the heart of all they do,” they say in a slightly puzzling way. After all why wouldn’t they put the client ‘at the heart of all they do’. Should that not be the norm?

Anyway, by the sound of it the new offices in Park Square are pretty smart including ‘brand-new concept work space on the ground floor for conferences, remote hearings, lectures and events’.

In a way it is quite refreshing to see lawyers endorsing the need for an office where people actually come to meet each other. Or is it just a sign that ‘the North’ is beginning to catch up with London where smart office spaces for barrieters have been the norm for a couple of decades. In this topsy turvy world where the Red Wall has gone Blue it’s difficult to make sense of whether this is progress, regress or just catching up.

Or is THIS the really new Leeds?

 

Gender violence adds costs to Criminal Justice

Gender-based violence is horrific and profoundly damaging to the victims (mostly women). But it also has a wider cost to society at large. In the case of the EU that amounts to €366 billion a year according to the European Institute for Gender Equality (EIGE). And of that about one fifth is the cost to criminal justice services.

Human life, pain and suffering do not have a price. However, knowing the cost of violence can help EU countries channel money to where it’s really needed — and where it’s most cost-effective. The money spent on supporting victims is not enough, with services such as shelters making up just 0.4 % of the cost of gender-based violence. EU countries need to invest more in activities that prevent violence against women and protect victims — this is both a moral imperative, as well as savvy economics,” said Carlien Scheele, EIGE’s Director.

No doubt the same can be said of post-Brexit Britain. Given the surge in domestic violence during Covid lockdown those figures are likely to be even higher.

– Harneys: New Hands on the Wheel

Welcome to the office

Heavy hitting Harneys (motto ‘Breaking Convention. Creating Opportunity.’), which operates from those idyllic islands in the sun where everything is offshore and above board, has just appointed Ross Munro as its new Global Managing Partner (effective 1 January 2022). Having been with the firm since 2001 – starting off in the British Virgin islands – he knows his way round the business and has spent his time in London since 2014 as Global Head of Harneys Fiduciary. During that period, the firm says, Fiduciary experienced a ‘dramatic’ growth in revenue and a diversification of its client base. In fact, Munro seems to have been on quite a roll, expanding into new jurisdictions, developing new product lines, transforming service delivery and meeting the challenges of numerous regulatory changes. “His approach as Global Managing Partner will bring this same energy to the role, focusing on clients, people and business transformation,” says the firm.

As you will have guessed, the firm practises primarily the law of those hot and interesting islands -BVI, Cayman, Cyprus, Bermuda and Anguilla. But in terms of clients the firm’s latest big deals all seem to hinge on China. Indeed, Shanghai is one of their few non-island offices and Harneys is one of the largest offshore law firms in mainland China. So please don’t mention Taiwan.

IP Give-away

Intellectual property is increasingly a company’s most important asset so Crowell & Moring has cleverly developed an automated self-check app which helps businesses think critically about it.  The IP Check-Up is an automated self-check app that companies and corporate lawyers can use to get a quick and free initial overview of any IP risks the company might face. “Until now, business leaders wanting this kind of service have typically had to commission expensive, time-consuming audits, and this has had a significant deterrent effect,” says the firm.

The online app gauges the company’s industry, its key competitors, how the company markets its products, and whether or not the company possesses sensitive information that should not be shared publicly. Based on the respondent’s answers, the app produces an automated initial assessment of the IP risks the company is running. And what’s more it is completely free.

“Globalisation and digitalisation mean there are more and more competitors out there. We want to make it as easy as possible for companies to think about their IP and how they can protect it, or better protect it, or even exploit it financially,” explains Crowell & Moring’s Jan-Diederik Lindemans. Too good to be true? Check it out for yourselves. Here accessible online.

 

+ LEGAL COMMENTARY OF THE WEEK

WAGS AND WIGS

Search for Vardy and Rooney and you won’t easily find the footballers. But you will find their wives. This is a grudge match which might outlast England vs Germany. And in the latest round of the High Court libel battle a judge has just thrown out parts of Coleen Rooney’s defence.

 “What the court has done is not unusual,” says Steven Heffer, Partner and Head of Media & Privacy at Collyer Bristow. “The Judge has struck out what he regarded as irrelevant parts of Rooney’s defence, to avoid wasting court time at the trial, focussing only on the properly relevant issues.”

 “If the trial goes ahead, there will still be plenty to keep the media and public entertained. That is the reality when a big libel trial plays out in court in what is a dramatic and entirely public forum. Such cases are rare nowadays, the parties often appreciating the high stakes and huge cost – both financially and in terms of reputation. These cases can have a huge impact on the parties personally and even destroy careers and reputations.”

 “A public trial will only be avoided if the parties can agree a settlement.”

 FIRE AND RE-HIRE

Using a “fire and rehire” approach to change their employees’ terms of employment is becoming increasingly common. But is it lawful?

“Under current law, if an employer wishes to vary terms and conditions of a current employment contact, they must firstly seek to reach agreement to the changes by consulting with the workforce, and any trade unions as appropriate,” says Kate Hindmarch, employment lawyer at Langleys Solicitors.

“If an agreement cannot be reached, employers must terminate employees existing contracts by giving notice, and offer to re-engage on the new terms – “fire and rehire”. The employees are then effectively dismissed, and face the choice of accepting the new, usually less generous terms.

“Most employees in this situation, particularly in the current economic climate, are likely to accept the new contract, whatever the terms, to avoid unemployment. However, if an employee refuses the new terms, then they may have a claim for unfair dismissal, providing they have more than two years of service.

“Employers must be mindful that firing and rehiring can be damaging for employee relations in the long term, particularly if the situation is managed insensitively. Employer’s risk alienating their entire workforce; recent media commentary reports that employees being asked to accept a new contract on worse terms are even threatening employers with company strikes.

“Ultimately, “fire and rehire” is potentially lawful, but businesses must consider whether it is ethical. It is a high-risk strategy which employers should not take on without understanding the risks and potential reputational damage involved.”

+ LEGAL ANALYSIS OF THE WEEK

The High Court has tightened the screws in the Axminster ruling on Defined Benefit (DB) pension trustees. Anna Rogers explains the implications.

The High Court recently ruled in Punter Southall v Hazlett, in re Axminster Carpets [2021] EWHC 1652 (Ch). The casehas been a long time coming and by the time it reached the Court the parties had agreed a compromise of numerous underpayment issues that are fairly common in defined benefit pension schemes. There were however some points that needed to be decided because they affected the quantum of the arrears.

Mr Justice Morgan reconsidered and expanded on some of his own rulings in the landmark Lloyds case. Current trustees have no limitation defence if they underpay. However, forfeiture clauses are allowed, limiting recovery to six years’ arrears.

Most DB schemes allow forfeiture. Some require it, with discretion to disapply. Until Lloyds the general view was that forfeiture didn’t work, or if it did it wasn’t very trustee-like. 

The Judge gave a pretty heavy steer that any discretion should be used in favour of beneficiaries if they were not at fault and the trustees were. In an apparent swipe at the trustees, who had ignored legal advice that they were underpaying, he said it might be different for their own benefits.

DB pensions are complicated and there are systemic risk areas for underpayment, both known and unknown. Trustees who are members are now on notice that their own benefits may be at risk if they don’t act. Better then not to take legal advice? Our view is, better to amend away the forfeiture rules they never used, don’t want to use, and can’t fairly use against anyone other than themselves.

Anna Rogers is Senior Partner, Arc Pensions Law

 

+ APPOINTMENTS OF THE WEEK

GIDE appoints China expert de Dainville as Partner

Among a clutch of seven new partners at French firm Gide (which now has 117 partners across 11 offices worldwide) the Legal Diary was impressed by Louis Oudot de Dainville who specialises in corporate law, M&A and matters related to venture capital and private equity.

de Dainville

What’s most striking though (aside from his legal qualifications) is that he has a degree in Chinese Studies from the National Institute for Oriental Languages and Civilisations and plenty of experience in Gide’s Beijing and Shanghai offices. No wonder he’s in demand.

HJ&A appoints asbestos expert

Hodge Jones & Allen has appointed Joanne Candlish, an accredited Senior Litigator of the Association of Personal Injury Lawyers and highly experienced asbestos solicitor, to support its growing team in the north of England.

Joanne Candlish

Based in Liverpool, Joanne has close to 30 years’ experience, acting for asbestos victims and their families in mesothelioma and other asbestos related lung disease claims. She also represents those who have suffered serious and complex injuries caused by road traffic and workplace accidents. Her landmark case was representing one of the lead parties in the “Employers’ Liability Trigger Litigation” case in the Supreme Court.

 

E-VENTS

Webinar Invitation BINGHAM CENTRE FOR THE RULE OF LAW

A conversation with the Founding Director of the Bingham Centre, Sir Jeffrey Jowell QC: ‘Can countries succeed without the Rule of Law?’  

Wednesday 14 July 2021 | 16:00pm – 17.00pm (British Summer Time) 

This webinar has been organised by the Centre for Development and Enterprise, a leading development and policy think tank based in South Africa.
 
 

The recent constitutional court judgement on former president Jacob Zuma has highlighted the importance of the Rule of Law. 

The Centre for Development and Enterprise is hosting a conversation with Sir Jeffrey Jowell, Emeritus Professor of Public Law, University College London, where he was Dean, Head of the Law Faculty and Vice Provost, as well as being a founding director of the Bingham Centre for the Rule of Law, set up to advance the rule of law worldwide.

He is an international authority on constitutional and administrative law. In his role as an academic and practising lawyer, he has advised on the constitutions and human rights issues in a number of countries, including South Africa. In 2011 he was knighted for ‘services to human rights, democracy and the rule of law’.
Opening Remarks by: 
Johann Kriegler, Retired constitutional court judge

In conversation: 
Jeffrey will be in conversation with Ann Bernstein, Executive Director of the Centre for Development and Enterprise.

Registration

This webinar is free to attend, however you will need a Zoom account to register. After registering, you will receive a confirmation e-mail containing information about joining the webinar.
BOOK NOW

 

BRICK COURT’S third centenary podcast features Sir Sydney Kentridge QC and Lord Sumption

The relaxation of lockdown restrictions brings together two titans of the law, face to face, to discuss their careers, their cases against each other, trial advocacy vs appellate advocacy, learning how to cross-examine … and whether or not one should keep score!

The conversation turned, of course, to Sydney’s famous cases in South Africa, and whether lawyers can and should seek to bring about political change, as well as to Jonathan’s appointment direct to the Supreme Court, and the extent to which retired judges should speak out on public issues.

Listen to the episode here

 

 

 

 

 

 
Work ‘The Same’ From Anywhere With NQZebra


 We have seen the evolution of working from the office, to working from home, to working from anywhere. But now, nQ Zebraworks says, the focus needs to be on working in the same way from anywhere.

Firms have transitioned well to working from home, but what are the tools that are needed now as firms navigate a far more fluid future?

We will look at the steps that firms are taking to expand their digital toolkit, as well as how they are driving adoption.

And we’ll be conducting a few polls so we can see whether the experiences of our guests accords with those of you listening in.
 Taking Place on Tuesday 13rd July  
16:30 BST/ 9:30 MST/ 11:30 EST
Click Here To Claim Your Free Place Now!
 

 

 

Hope that you’ve found this edition of The Legal Diary Interesting. If so please recommend or pass on to colleagues.

And please continue to send your stories, insights, comments and appointments to

 

fennell.edward@yahoo.com

 

 

And if you are reading this on Friday – ‘Come on ING-ER-LAND’

But if you are reading it on Monday – ‘Bad Luck! Close but not quite good enough – despite Southgate being the one.’

 

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