Edward Fennell’s Legal Diary – Edition 66

Friday July 16 2021 Edition 66

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

SHORT THOUGHT FOR THE WEEK – GROUP THINKING?

“Inclusion and diversity is an underpin of workplace culture,” said Monica Kurnatowska, Partner, Employment & Compensation, at Baker McKenzie earlier this week. “In a diverse and inclusive organization, group think is avoided and every day challenge is encouraged. This is a crucial part of managing risk.”

Brave words – especially in that ambition to avoid ‘group think’ whoch sems to be increasingly the norm across UK society. For a diverse organization to be ‘authentically’ inclusive there needs to be some common ground, something which can be held in common respect, otherwise diversity can lead to fragmentation and polarization. Managing that ‘every day challenge’ so it becomes a positive rather than a debilitating experience is a test of leadership especially in this era of cancel culture. Law firms have the great advantage in that respect for the law is a shared commitment. But what about the ‘unwritten laws’ which exist in every workplace? How many of those can be broken in the quest for diversity?

The Legal Diarist

Please note that next week’s Legal Diary will be suspended to mark term-end and also the publication of the Legal Diarist’s genre medieval mystery CHARTER FOR MURDER which has law at the core. Available now https://www.bookdepository.com/CHARTER-FOR-MURDER-Edward-Fennell/9781919616117

In this week’s Edition

+ LEGAL DIARY OF THE WEEK

– It’s ‘My place or yours?’ as firms move office with KIngsley Napley and Clarke Willmott

– Families Favourite at Irwin Mitchell

– Expansion in Major Trauma Group

– Seeing the Future of Law – It’s LawTech

+ LEGAL COMMENT OF THE WEEK

– The Diversity of the Judiciary 2021 report: Bar Council and CILEX

– The Infected Blood Inquiry: Collins Solicitors

+ CONTRIBUTED ARTICLE OF THE WEEK – TACTICS FOR LITIGATION FUNDERS by J-P Pitt of litigation funder Asertis

LEGAL INSIGHT OF THE WEEK: TICKET TO NOWHERE? From DAS Law

+ APPOINTMENT OF THE WEEK Travers Smith

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LEGAL DIARY OF THE WEEK

It’s ‘My place or yours?’ as firms move office

Following all the discussion and debate about how the pandemic might change perceptions and priorities for office working we are now starting to see some real life examples of how law firms are responding.

For example this week Kingsley Napley moved into its new office at Twenty Bonhill (Bonhill Street EC2). Although planned since 219 the detail of the move has been shaped by the new circumstances and the commitment to ‘agile working’.

“The firm has worked successfully on a remote basis during lockdown,” says Jemimah Cook, Kingsley Napley’s HR Director. “We have seen strong levels of engagement and performance and, in many ways, have strengthened our culture as a result of the shared experience and initiatives we introduced to ensure we have maintained a sense of togetherness as a firm. We now want to retain the option of flexibility for people, trusting them to make the decision about where the best place is to conduct their work on a daily basis, whilst at the same time recognising that there is a positive case for office attendance for team working, developing and supporting relationships, and sharing knowledge and ideas, as well as for training, learning, supervision and development.”

The result is that members of the firm will work two to three days per week in the office as a guide (or the equivalent of 40-60% of their time calculated on a pro-rata basis) from September. The new offices also include a ‘Wellbeing suite’ comprising relaxation room, fitness studio, prayer and contemplation room.

Meanwhile, on Monday next, Clarke Willmott LLP will move their Birmingham office from Edmund Street to a new location at Colmore Row. As the management points out, the new office has been designed both for future growth and to support full flexible working for staff.

 “Prior to the pandemic we had plans for Birmingham including a more flexible use of our office space, but in the last 16 months we have learnt so much that we have been able to be more adventurous with our plans,” saidStephen Rosser, the firm’s Chief Executive. “Over 90% of our staff have told us via our surveys that they want to work flexibly going forward and this has given me freedom to design our new office for that purpose.”

 Rosser went on to say that staff who prefer and want to work in the office can do so. Staff who want to dip in and out as their needs change are also accommodated. “By using a desk booking system and having created a space with a full range of work environments from private booths through to a business lounge, our people can collaborate with one another, socialise or work quietly on confidential matters.“

Families Favourite at Irwin Mitchell

While some firms are going for agile working in terms of offices Irwin Mitchell has announced an upgrade in its family leave policy, designed to ‘Further improve wellbeing for colleagues, including enhancements to paternity and parental leave’. Included among a significant number of changes is the removal of the time limit for colleagues undertaking fertility treatment; plus the flexibility to take parental leave as single days, rather than in one block. “The limit for group enhanced adoption, maternity and shared parental pay has also been removed,” says the firm, “so colleagues can take advantage of these benefits from the first day they join.”

There will also be enhancements to the firm’s parental bereavement leave policy which will support colleagues through loss of a child regardless of age and miscarriage.

“These new family friendly policies come in response to feedback about what our people need and recognise the vital importance colleague wellbeing plays in the overall success of the firm,” said Susana Berlevy, the firm’s chief people officer. “As more of us work from home, this was an opportunity to enhance our policies to improve work-life balance and extend flexible working to offer greater choice and inclusion in everything, from maternity and paternity leave, through to fertility treatment and fostering. In exceeding statutory allowances, we are continually improving how it feels to work at Irwin Mitchell. These positive changes deliver equal treatment for all and provide our colleagues the very best working conditions and also allow us to attract the best talent in the legal profession.”

Expansion in Major Trauma Group

The Major Trauma Group (MTG) continues to attract new member firms as part of its drive to support survivors of major trauma injury and their families through integrated legal, health and social care pathways. The latest recruits to the alliance include Burnetts Solicitors whose specialist award-winning serious injury team operates across the North East and Cumbria along with Lime Solicitors which champions individuals across the Midlands and the South East. Meanwhile HCC Solicitors is an award-winning serious injury law firm with offices in Manchester, London and Birmingham. As the group points out, major trauma injuries are the main cause of death for people under 45 in the UK. MTG is now a source of information for these individuals, and can direct them to appropriate legal, financial, and mental health services.

“The work done by the Major Trauma Group is essential,” says Paul Brown, Senior Associate at Burnetts Solicitors. “Far too often sufferers of major trauma do not receive the support they require, and the situation has been made even worse as a result of the pandemic. Burnetts Solicitors is proud to be joining the Major Trauma Group at this important time, with the shared vision of helping those most in need access the rehabilitation, support and treatment they deserve.”

Seeing the Future of Law – It’s LawTech

Published this week by LawtechUK ( a government-backed initiative within Tech Nation) the report ‘Shaping the Future of Law’, highlights the rapid growth achieved within the UK’s lawtech sector and the opportunity for further growth and widespread digital transformation in law. In particular, the report emphasises the importance of a digitally-enabled legal sector to the UK with implications across many aspects of British society from business and consumer activities to the strength of the UK on the world stage. One key example, is international trade worth £1.153tr annually to the UK economy which can be streamlined through digital legal documents and effective use of data. (Although just how enthusiastic run-of-the-mill law firms are about this remains to be seen).   

In economic terms, the report places the market opportunity for lawtech to be up to £22bn annually, based on data commissioned from Frontier Economics, comprising: 

• Unmet demand from SMEs and consumers in the UK estimated to be worth up to £11.4bn annually.  
• Cost savings for SMEs of using lawtech products and services of up to £8.6bn each year.  
• Productivity gains through increased use of lawtech by legal service providers estimated to be worth up to £1.7bn annually, which can be extended through tech adoption and the buying power of in-house legal departments.

 “The law is critical in all our lives and businesses and it should be easy to engage with and affordable and effective for everyone.  Lawtech is how we make that happen,” says Jenifer Swallow, LawtechUK Director at Tech Nation.  “The sector is seeing incredible growth – with lawtech startups and scaleups growing at 101% over the last three years, and adoption levels increasing during Covid-19 across our courts, legal businesses and in-house legal teams.The £22bn market opportunity of lawtech evidenced in this report only scratches the surface of the true impact we can have through digital transformation in law.” 

LEGAL COMMENTS OF THE WEEK

The Diversity of the Judiciary 2021 report was published this week. Here’s what was said about it.

DEREK SWEETING QC, Chair of the Bar Council

“This data should help us to take action to improve diversity in the judiciary. We need to understand why, when ethnic minority barrister candidates of Black and Asian backgrounds are disproportionately more likely to apply for judicial appointment, they remain consistently less successful than their white counterparts. Until we understand whether there is problem in the appointment process, or whether the issue is experience – or both – we are operating in the dark.

“To take effective action the Judicial Diversity Forum needs to better understand the varying success rates of different ethnic groups applying to the judiciary.

 “The professions are playing their part. Alongside joint work with the JDF, the Bar Council has an extensive programme of work in the areas of access, retention and progression across the profession, as well as a major project to support fairer distribution of work, focusing on under-represented groups at the Bar. We firmly believe fairer access to quality work will support both the retention and progression of under-represented groups. From the perspective of judicial careers, this work must be matched by a closer look at how judges are recruited and supported to take on more senior posts in the judiciary if the efforts to diversify the legal professions are to be reflected in judicial recruitment at all levels.

 “These statistics show that more work needs to be done to improve diversity in the judiciary, not only in relation to gender and ethnicity. More data (and work) is also required on other protected characteristics and socio-economic backgrounds if we are to change the make-up of the judiciary in England and Wales.”

PROFESSOR CHRIS BONES, CHAIR OF CILEX

“It is clear from the report that there are still considerable challenges ahead when it comes to increasing diversity in the judiciary, with women and those from Black, Asian and other minority ethnic backgrounds still underrepresented.

In senior judicial roles in particular, white men still predominate. I want to see CILEX being part of the solution. Given more than 73% of CILEX members are female, there is a real opportunity here, but the block on CILEX Lawyers applying for senior judicial appointments is holding talented candidates back.  

CILEX Lawyers have already proven themselves as effective judges yet in the last year CILEX Lawyers were only able to apply for four out of the 24 judicial selection exercises.  

CILEX continues to work hard to support and encourage our members in pursuing a career in the judiciary, increasing the number of places available on our Judicial Development Programme. The first full-time CILEX judge, Elizabeth Johnson, was appointed last month, and we know there is a growing ambition and capability amongst members to take a up a judicial career.

CILEX members need equality of opportunity. If we truly want to make progress towards a representative judiciary, now is the time to open up the judicial eligibility criteria to lawyers of all backgrounds.”

The Diversity of the Judiciary 2021 report can be found here https://www.gov.uk/government/statistics/diversity-of-the-judiciary-2021-statistics

INFECTED BLOOD INQUIRY

There’s a big fortnight ahead for the Infected Blood Inquiry with the appearance of three very senior officials/ministers who are believed to have direct knowledge of the management of thefatal policy – Dr Diana Walford (Principal and Senior Medical Officer roles), Lord Simon Glenarthur (Parliamentary Secretary of State for Health and Social Security) and Lord Kenneth Clarke (Minister of State for Health).

DES COLLINS, SENIOR PARTNER, COLLINS SOLICITORS says

 “These witnesses 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.

“Our clients have waited many years for Lord Clarke, in particular, to explain his actions – he has never given evidence on this matter before and always deflected questions by referencing advice given by Lord Glenarthur and other civil servants.

“Dr Diana Walford refused to give oral evidence to the Penrose Inquiry but again her knowledge and recollections of what happened at the time are key to understanding the history of the infected blood scandal. It is important that she shares these openly and in detail.

“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 have been called to give evidence and the Inquiry is to be commended for bringing them to the stand.”

CONTRIBUTED ARTICLE OF THE WEEK – TACTICS FOR LITIGATION FUNDERS

Third party litigation funding is becoming increasingly important but it is a risky business and needs shrewd decision-making on the costs and benefits of how far a case should be pursued. Here J-P Pitt discusses the factors to be taken into account when persuading a litigation funder that enforcing your client’s judgment is a good investment opportunity.

In simple terms, an enforcement opportunity that is ‘investible’ from a funder’s perspective, is one where the legal team have been absolutely clear from the outset what assets the defendant has from which to pay any amounts claimed or ordered by a court. To use project management terms, what is the critical path to cash.

Any legal team that has not identified in pre-action planning what the defendant’s ability to pay may be, will be facing an uphill journey to get funding for their claimant client. A funder will certainly do this exercise as part of its own due diligence. Indeed, it is without doubt the first question that every funder will ask when considering an opportunity. If there is no critical path to cash then there is no merit in considering the opportunity further. Winning the liability contest, in commercial terms, is only half the story and a court decision is a cheque that needs to be cashed.

If the critical path to cash is clear but challenging, then a funder may consider the opportunity investible. In this situation the legal team then need to put together a proposition for the funder. The proposition should set out clearly what the targets are that will be relied upon to obtain recoveries from, ideally cash, but certainly assets that can be readily liquidated from which to realise cash.

One advantage of doing this exercise early, is that it also enables a claimant to decide whether the “juice is worth the squeeze”. A further advantage from a lawyer’s perspective is that conducting such an analysis on a defendant may reveal a potential vulnerability that could be exploited, legally, either to persuade a defendant to settle sooner rather than later or to dissuade a defendant from avoiding to pay. Either way, the ancient adage of if you want peace prepare for war, is a good maxim to observe.

J-P Pitt is an Investment Manager at litigation funder Asertis

LEGAL INSIGHT OF THE WEEK: TICKET TO NOWHERE?

The ticketing and security debacle at Wembley last Sunday brought into focus the risks and dangers around buying tickets super-popular, high profile events. Here Lauren Wolf, Legal Adviser at DAS Law gives a reminder of the state of the law on these occasions.

What is my legal position in claiming a refund if the event is cancelled? (Which might almost have happened at the Euros final!)

If the event you have booked is cancelled, rescheduled or has changed location, you are entitled to a refund of at least the face value of the ticket.  If an event is rescheduled to another date, your ticket should be valid. If you can’t make the rescheduled date, then you’re entitled to a full refund. The ticket seller is responsible for giving you a refund for tickets to a cancelled event.

If the company is a member of the industry’s self-regulatory body, the Society of Ticket Agents and Retailers (STAR), it is a condition that they refund the ticket’s face value price when an event is cancelled. It is, however, unlikely that you will receive additional compensation for losses such as travel or accommodation.

Do I have any recourse if I bought a ticket from a tout or a reselling website and was refused entry to an event?

You can be refused entry to an event if you have purchased a ticket from a tout or reselling website if the ticket states ‘no resale’ or is a counterfeit ticket.  In these circumstances, you would argue a breach of contract against the seller to claim your costs back.  I would recommend that you check the terms and conditions on your tickets or booking information provided for the event that you wanted to attend.  If it is a genuine ticket and the reason for refusing you entry is not within the stated terms and conditions, you can argue the venue or organisers have broken the contract by denying you entry and you can potentially pursue them for a refund.

Are ticket touts still allowed to operate in the UK?

The general resale of football tickets is illegal under the Criminal Justice and Public Order Act 1994 unless the resale is authorised by the organiser of the match. However, the re-selling of live music tickets for profit is not against the law in the UK.

Professional touts have commonly used specialised software (known as ‘bots’) to automatically buy tickets in bulk the instant they are made available to the general public. These are then listed and sold for profit on reselling websites.

The Government has recently passed new legislation, in the form of the Digital Economy Act 2017, which bans touts from using ‘bots’ to buy tickets in bulk.  This new legislation has made it a criminal offence to use automated technology to purchase large amounts of tickets to then be sold on at inflated prices.

APPOINTMENT OF THE WEEK

 Travers Smith LLP has appointed Ben Thompson as a partner in its Infrastructure Sector Group, Thompson joins from   Weil, Gotshal & Manges where he hafd held the role of Counsel since January 2020. In 2017, he was seconded to the Leveraged and Acquisition Finance Transaction Management team at HSBC in London, advising on general leveraged finance and infrastructure finance transactions. Previously he had been at Latham & Watkins in both London and New York.

  “Our Infrastructure Sector Practice has been going from strength to strength in the current fast-paced environment, growing and diversifying its portfolio of work year after year,” said Spencer Summerfield, Head of Travers Smith’s Corporate Department and Infrastructure Sector Group, “Ben’s arrival will enable us to further grow our practice in order to meet the growing needs of our clients.”

E-VENTS

COLLYER BRISTOW

Aidan Grant Senior Associate+44 20 7470 4465aidan.grant@collyerbristow.com Peter Daniel Head of Private Wealth+44 20 7468 7351peter.daniel@collyerbristow.com

KIDS’ LAW

We hope that you have found the LEGAL DIARY interesting this week. If so, please relay on to friends and colleagues.

NEXT WEEK We will take a short diversion but return as normal on Friday 30th July.

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