Edward Fennell’s Legal Diary – Edition 67

July 30, 2021

Friday July 30 2021 Edition 67

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

LEGAL DIARY OF THE WEEK

– WINDFALL OR WIND-UP?

Just as the UK seems to coming to grips with the C-Virus there is growing evidence that major law firms have done rather well for themselves over the past year. As government spending has ballooned so have law firms’ profits. ‘Correlation’ might not, of course, be identified as ‘cause’ but given that turmoil generates increased legal activity there is probably some knock-on relationship.

So should law firms be hit with a windfall tax? That is the question which has been floated across a number of publications by commentators of various political alleigances. The result is that even top management in law firms is feeling under pressure right now. As Dominic Carman of Reports Legal observes, “In my recent conversations with managing partners, the usual sense of pride in a strong financial performance has been tinged with embarrassment at just how well their firms have done over the past year. For Sunak and his Treasury team, the prospect of introducing some form of windfall tax on lawyers (and others who have benefited from excessive profits during the pandemic) must be very tempting, notwithstanding a holy trinity of obstacles: politics, protest and pragmatism.”

Many of those ‘obstacles’ are tied up with the self-employed status of partners but also the implications of singling out lawyers as opposed to other exceptionally high earners such as Premier League footballers. As Carman says, “Levying higher taxes on lawyers earning say £2m a year while ignoring, for example, the 570+ Premier League footballers earning £3m a year (the average Premier League salary) would be inequitable, unworkable, and contrary to longstanding taxation principles adhered to by HMRC and the Treasury.”

So while there is certain to be indignation among the wider public lawyers can probably sleep easy in their orchards at night. For now.

The Legal Diarist

CHARTER FOR MURDER

—– Shameless Self-Promotion!!

While not editing the Legal Diary the LegalDiarist has been busy writing a genre medieval murder mystery in which the law plays a central role – especially in the figure of William Gascoigne (c. 1350 – 1419) a lawyer of the Inner Temple who went on to become was Chief Justiceof England.

CHARTER FOR MURDER weaves together characters inspired by the Prologue to the Canterbury Tales into a classic whodunit set in Winchester and London just before the Peasants’ Revolt and against a background of rivalry between Bishop William of Wykeham and John of Gaunt, Duke of Lancaster – and it has a legal twist in the tail. [It’s the best book ever reviewed in the Legal Diary – says the Ed.]

For more go to https://www.bookdepository.com/CHARTER-FOR-MURDER-Edward-Fennell/9781919616117

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

– Legal Costs of the NHS

– Bloodless Reaction?

– ConVincing

– Self-Employed: Really?

+ LEGAL COMMENT OF THE WEEK – THE GREAT VENEZUELAN GOLD SCAM

+ A LEGAL HISTORY OF MARRIAGE

Episode 1: Ancient Societies

+ APPOINTMENT OF THE WEEK at ADDLESHAW GODDARD

+ E-VENTS The latest Brick Court’s Centenary Podcasts

+ THE LEGAL DIARY OF THE WEEK

– Legal Costs of the NHS

One of the issues guaranteed to get commentators excited is the cost to the NHS of legal advice. And one of the problems is that there seems to be so much confusion about the exact figures. For example, not so long ago it was claimed in The Times that, “More than two thirds of the £2.5 billion paid out by NHS Resolution in litigation costs each year goes to the lawyers.”

However, writing this week Dr Anthony Barton, Solicitor and medical practitioner as well as a doughty campaigner over medical legal matters, rebuffed that figure as wildly inaccurate. “The right figure is 27 per cent, not “more than two thirds”, as is clear from the annual report and accounts for NHS Resolution for 2020-21,” he says. “Highly publicised reports of maternity services in Shrewsbury and hospital care in Mid Staffordshire show that the health service cannot be trusted to investigate itself. Little wonder, then, that injured patients turn to litigation.”

Just wait until the tumbrils starts to roll over Covid.

– Bloodless Reaction?

‘No blood on my hands’
Image courtesy of Daily Mail

Fans of good old Ken Clarke QC – now, of course, Lord Clarke and ‘the best Prime Minister we never had’ – will have been dismayed by his ‘state of denial’, off-hand ‘Nothin’ to do with me, Gov’ comments to the Infected Blood inquiry. But there has been an unusually powerful reaction with an application made yesterday to the Chair of the Inquiry by Mr Stein, barrister to a number of those infected, seeking to ask for Lord Clarke’s comment on campaigners’ belief that he has shown ‘arrogance, pomposity and contempt’ towards the victims.

“The application, though highly unusual in nature, is unlikely to have come as any great surprise to those who have spent the last two and a half days watching Lord Clarke give evidence,” said Des Collins, solicitor to 1500 infected and affected clients. “However the issue for the Inquiry is not so much Lord Clarke’s demeanour but the extent to which his evidence assists the inquiry in getting to the truth of matters some 40 years on. Perhaps, however, were a contemptuous attitude to have been all pervasive throughout the Department of Health for all these years, it might explain why it has taken this long to get an Inquiry.”

– ConVincing

Would you trust this man to post a letter (of regret?)
Image courtesy of the Liberal Democrats

This is going to look like I am repeating myself but……

Fans of good old Vince Cable – now, of course, Sir Vince and former leader of the Liberal Democrats – will be dismayed to see that he ‘seemed on particularly shaky ground’, according to Nick Gould of Aria–Grace when confronted about his oversight of the Post Office Limited (POL) in relation to the Sub- Postmasters scandal.

As boss of the Department of Business and the Cabinet Minister with ultimate responsibility for the POL over several years he seemed uncertain on the matter, wrote Gould in a long article on Wednesday,.

“ Did he and any of his junior ministers know [what was going on]?” Gould asks. “If yes, why didn’t they do something and if not, who was covering up and for how long? And of course, the ultimate owner of Post Office Limited is the Department of Business—which is perhaps about to put its hand in its pocket to maybe make the first compensation payments. What else could it do? Once those 39 appeals were granted by the Court of Appeal on 23rd April, it had little choice. But there is much, much more to be done.”

Yes, no doubt Ken and Vince can now muse happily over these good old days at their leisure.

For more go to:

https://www.linkedin.com/pulse/piece-i-said-id-write-post-office-scandal-its-nice-nor-nick-gould

– Self-Employed: Really?

Following on from our Short Thought (above) there are interesting ideas being kicked around regarding self-employed status which might impact long term on partners in law firms.

The Labour Party has just announced that it would create a single worker status to “replace the three existing employment categories” of employee, worker and dependent contractor. Labour added the category would encompass “all but the genuinely self-employed.” So are partners ‘genuinely self-employed’?

IPSE (the Association of Independent Professionals and the Self-Employed) has responded to Labour’s proposal by warning that without clearly defining what distinguishes “false” from “genuine” self-employment, the proposals risked “seriously undermining” the 4.2 million-strong self-employed sector.

Andy Chamberlain, Director of Policy at IPSE said,“While it is absolutely right to try and clear the confusion in parts of the labour market such as the gig economy and secure rights for falsely self-employed people, it is essential to engage with the question of what exactly makes someone self-employed. Without this, structural change could threaten the freedom, flexibility and livelihoods of genuine freelancers.Creating a statutory definition of self-employed status would both secure rights for falsely self-employed people and also protect the freedom of genuine freelancers.”

Partners of all stripes take note.

LEGAL COMMENT OF THE WEEK – THE GREAT VENEZUELAN GOLD SCAM (interpret to taste)

Take as many as you like! It’s on the BoE!
Image courtesy of Investopedia

The legal row continues over the Venezuelan gold held by the Bank of England on behalf of the country’s Government. But who is the legitimate Government? Juan Guaido is seen by the United States and Britain as Venezuela’s rightful leader but that view is no longer shared by the EU. So while one might not like the current Maduro regime, one cannot deny its reality.

Sarosh Zaiwalla, Senior Partner at Zaiwalla & Co., representing the Banco Central de Venezuela, comments:

“This case treads a fine line between law and politics. Mr Guaido’s legal case seeks to position him as being above the rule of law in both Venezuela and the United Kingdom on the basis of a statement made by the United Kingdom Government. It is absurd that €1.6 billion of a country’s gold held in the UK can on that basis be withheld from the government in control of that state and be given to representatives of Mr Guaido, who has no control of any apparatus of state. Such a result would have potentially serious and adverse ramifications forthe City of London as a safe place to store sovereign assets.

“The simple reality in this case is that any ruling upholding Mr Guaid6’s purported appointments, if recognised, would fly in the face of reality. His purported appointees have no ability to act on behalf of the Banco Central de Venezuela in any effective way in Venezuela.”

A LEGAL HISTORY OF MARRIAGE

Episode 1: Ancient Societies

The hottest spot in Rome to tie the knot?

In the first in a new series by Emma Nash, partner in the family team at Fletcher Day, we look at the roots of marriage in ancient and ‘classical’ societies

Ask 100 people to define marriage and they will probably give you 100 different answers. From a legal perspective, marriage is very simply, the regulation of personal relationships by the state. This type of regulation has been around for millennia. One of the oldest examples is the Babylonian code of Hammurabi, a set of rules carved on a basalt column which included rules for gifts between spouses, divorce and re-marriage of widows. It dates from 1750BC.

The regulation of family life in this way is present in all cultures in some form and is a reflection on the moral, social, political, economic and sometimes ecological issues facing that particular society at that time. Marriage has also played its part in both building and damaging relations between nations, from the attack on Rome by the Sabines in retaliation for the abduction of their women for wives in the 8^th Century BC to the strengthening of Royal families through marriage in Medieval Europe.

Marriage practices throughout the world have generated much disagreement with there often being a conflict between those wanting to preserve their cultural traditions and those wanting to ensure that progress is made and seen to be made. Polygamy, concubinage, child marriage and the ancient Hindu practice of Sita, or widow burning, have all been a source of disgust and debate in legal discourse around the world.

Gender roles and the structure of a family have been central to the regulation of marriage. In ancient Rome, the patriarch, or oldest living male, had complete control over the lives and property of all members of his household including his spouse, children, extended family and slaves.

Gender roles and indeed gender itself, remains very much part of the current discussion on what marriage should be in many countries. Marriage is continuing to evolve, often amidst much debate and disagreement, and will no doubt continue to play a key role in how societies define themselves and regulate their populations in the future.

+ APPOINTMENT OF THE WEEK

Ewen Scott has joined Addleshaw Goddard as a partner in its leveraged finance team. Previously with Jones Day, DLA Piper and Ashurst Scott is well-known in the leveraged finance market having specialised in acting for lenders (including debt funds and alternative lenders), sponsors and portfolio companies, both in the UK and internationally. This move comes as Addleshaw Goddard continues to strengthen its London and international finance team.

Alex Dumphy, head of leveraged finance, said: “Ewen is highly-respected in the market and brings with him an enviable portfolio of skills and expertise. As Addleshaw Goddard continues to grow and develop both our City practice and our comprehensive finance offering, Ewen’s first-rate knowledge of the debt advisory world will help us to deliver an ever-stronger roster of services for our client base – and we are delighted to welcome him to the team.”

E-VENTS

BRICK COURT CENTENARY PODCASTS

The latest edition in Brick Court’s series of Centenary Podcasts is now available featuring Lord Phillips of Worth Matravers and Sir Christopher Clarke

After a career in practice at Brick Court as a commercial advocate, Nicholas Phillips, Lord Phillips of Worth Matravers, went on to a judicial career of unparalleled success, occupying all the major judicial offices. He is a former Master of the Rolls, Lord Chief Justice, Senior Law Lord (the last) and President of the Supreme Court (the first). Amongst (many) other public inquiries, he presided over the BSE Inquiry into Mad Cow Disease from 1998 to 2000.

Sir Christopher Clarke was Head of Chambers from 1990 to 2004. In practice, he was one of the leading commercial advocates of his day, and acted as Counsel in a number of inquiries. Most famously, he was Counsel to the Bloody Sunday Inquiry for six years. As a judge he sat in the Commercial Court for eight years and in the Court of Appeal for four years, retiring in 2017.

They discuss, on the basis of their extensive first-hand experience, the nature and conduct of public inquiries, including an assessment of how the future public inquiry into the coronavirus pandemic could and should take place.

The podcast is introduced and hosted by Fionn Pilbrow QC.