Edward Fennell’s LEGAL DIARY

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

March 28 2024

Editorial contact: fennell.edward@yahoo.com

Russia and China now seem a long way from home

Go to the Russia section of the Legal 500 and you will find just seven firms listed there. It’s a dramatically reduced number from two decades ago when things were looking moderately encouraging. Moreover when you click through to each entry the same notice appears: The Legal 500 has removed this content due to the Russian invasion of Ukraine and the sanctions imposed by the West. Long live a free Ukraine.”

Meanwhile this week, the news that Weil Gotshal – along with other firms – is closing in China, seems to suggest that we are starting to see a similar kind of process unfold in the Far East as well.

So, as the wider world starts to become more dangerous law firms are having to adjust their long term strategies. That sense of a global market is no longer as expansive as it used to be. Spring is the season of new life – but whether that will apply to legal services in these increasingly undemocratic and totalitarian countries remains to be seen.

Enjoy the Easter holiday.

The LegalDiarist

In this week’s edition

LSLA Has a New Leader in Nikki Edwards

– The Outlook for Law Firms? Pretty Mixed says Litigation Funder Harbour

– Country Matters for Agricultural Practice

– Scots Play Follow My Leader?

JAPAN WELCOMES THE GIs (from the UK) by Martin Szarkiszjan

on mixed injuries, EU DMA probes, home buying & selling abnd NDAs

at WFW and CROSSLAND EMPLOYMENT SOLICITORS

LSLA Has a New Leader in Nikki Edwards

Nikki Edwards, new boss of the LSLA

London’s Stock Exchange might be going through a rocky time but the London business law scene is expecting a lively period ahead. As the London Solicitors Litigation Association (LSLA) comments , “The prevalence of business distress, Artificial Intelligence, crypto assets, collective claims and ESG, are expected to directly impact the nature and volume of the litigation undertaken in London.”

The annual litigation trends survey undertaken by LSLA revealss that, notwithstanding BREXIT,the overwhelming number of the city’s commercial lawyers have not seen any contraction in the volume of work compared with last year. Indeed, the latest projections from S&P this week suggested that the UK has ‘turned a corner’.

“But while London remains open for business, it cannot rest on its laurels – it needs to be ‘match fit’ for the issues affecting the sector in order to maintain its litigation crown,” observes the LSLA..

So just in time the LSLA has appointed a new president, Nikki Edwards, Partner in the Commercial Dispute Resolution team at Howard Kennedy, to lead the response. As the organisation points out, procedural developments related to ADR, pre action conduct and litigation funding reforms are all likely to impact disputes in the Capital. “Under Nikki’s lead, the LSLA will continue to be involved with such procedural changes, and work closely with the Judiciary, Bar and other stakeholders to ensure that litigation in London continues to be innovative and fit for purpose.”

So modernisation of the disputes procedure is clearly a high priority. “The Arbitration Bill that is currently making its way through UK parliament will benefit businesses around the world looking to resolve disputes, and in turn further cement London’s position as disputes capital of the world,” says Edwards. “Meanwhile, the changes to the litigation funding sector will also have an effect on the volume and process of litigation in London. The LSLA plays a crucial role in influencing the London litigation sector as it influences and responds to these changes.”

Let’s hope that this continues.

The Outlook for Law Firms? Pretty Mixed says Litigation Funder Harbour

Notwithstanding the optimistic picture for London litigators, there’s a very mixed picture ahead for the law business at large according to a survey by litigation funder and lender to law firms, Harbour.

In short, it looks like the stronger and fitter will do perfectly well while the more jejune will be in danger of terminal wilting. In fact, more than a quarter of leaders of top law firms have predicted that there will be a significant rise in legal sector insolvencies. Not the least of the problems for these firms is that the current level of economic uncertainty was making it harder to secure further investment for growth from partners. Nor was there support for the use of external capital. Meanwhile, clients are seeking more favourable payment terms with 36% of those surveyed saying clients are taking longer to pay their bills.  Added to that there are cash flow issues with fee earners not issuing bills as quickly as law firm leaders would like,

“It’s clear that law firm leaders are concerned about the various economic headwinds they are facing simultaneously,” said Ellora MacPherson, Managing Director and Chief Investment Officer at Harbour. “Lockup challenges and cashflow concerns may also limit their ability to weather other future challenges. But credible third party funding options exist to help firms develop their business, whilst also allowing them to address macro-economic financial issues.”

As evidence of that, Harbour itself was involved in last year in the £33m funding facility for Slater & Gordon.  On the other hand 42% of respondents said this year would be one of the busiest for law firm M&A, as firms seek to consolidate or acquire books of work-in-progress. So, as we said at the top, a mixed picture. 

Country Matters for Agricultural Practice

Rich green fields packed full of nutritous lawyers

With the Easter Week ahead and thoughts turning, for example, to a restful few days in the New Forest one might be tempted to say “Dash it all – I want to decamp to the country.”

But where to go? One of the top firms for farmers’ law is Thrings which focuses its Agricultural team (one of the largest in the UK) in Romsey which is just on the edge of the Forest. Moreover as an endorsement of its status, the firm has been chosen by the NFU to act for its members in more countries than any other firm.

So a pretty idyllic start for the firm’s youngest recruit, the newly qualified Chloe Cosham who acts for clients on a range of rural and agriculture matters, from the purchase and sale of property and land to leases and short-term tenancies. She also knows a thing or two about the registration and transference of unregistered land. So according to Simon Holdsworth, Managing Partner of Thrings, “It is fantastic to have Chloe continue at Thrings following the completion of her traineeship. We are proud to know that the work we do continues to attract talented individuals who want to be a part of the Thrings family, and I look forward to seeing Chloe’s legal career go from strength to strength.”

That said, farming as we know is in a bit of a pickle right now what with farmers driving their tractors French-style into London in order to protest. Added to that there is the growing criminality in the countryside – the much-publicized but bizarre case of scores of dead hares scattered across a village shop happened in Broughton just a few miles down the Test Valley from Romsey. Even Paradise, it seems, cannot be quite perfect. Still it is nice to know that there is a lively legal life outside of the city.

Scots Play Follow My Leader?

Paman Singh – Law Society of Scotland

Events north of the border are endlessly fascinating but things have come to a pretty pass when even loyal quarter-Scots such as Libby Purves (The Times’ long-standing commentator) throws her hands up in despair, as she did a few days ago, at how the country is being run.

The latest among a long series of controversies is the decision by the Scottish Government to reintroduce fees in Employment Tribunals. This will cause ‘unacceptable access to justice issues for those most in need of free legal protections’, according to the Law Society of Scotland after the publication of a Consultation paper.

Curiously enough for a Scottish Government which remorselessly seeks to distinguish itself from what the despised sasanachs are doing, on this occasion the Scots are very much in lockstep with the new policy from Whitehall (i.e reintroducing fees nearly seven years after the Supreme Court quashed the previous charging regime as unlawful).

“It is crucial that these proposed measures do not cause serious access to justice issues for some of the most vulnerable members of our society,” said Paman Singh, member of the Law Society of Scotland’s Employment Law Committee, “The fee may be affordable to many complainants but to those who have lost their jobs, are on minimum wage or benefits, £55 is a significant amount of money.

“The Consultation suggests the aim of the proposals is to reduce costs to the taxpayer. Given that the introduction of fees at the recommended rate would raise a mere fraction of the total annual cost of funding these services, we have serious questions about the rationale behind these proposals.”

Actually, he has a point. The figure raised will be a drop in the bucket compared to the actual costs. Maybe on this occasion Edinburgh should have stuck it out – if only for the sake of Auld Lang Syne.

JAPAN WELCOMES THE GIs (from the UK) by Martin Szarkiszjan

In recent news, Japan has formally granted geographical indications (GIs) to iconic UK food and drink products such as Cornish Clotted Cream, Cornish Pasties and Anglesey Sea Salt. This means that those businesses can now export their products to Japan with the security that their products won’t be imitated by other businesses operating in Japan. Similarly, several Japanese products have, in turn, been granted GI protection in the UK.

So what exactly are GIs? The system for GIs is established by the Act on the Protection of the Names of Specific Agricultural, Forestry and Fishery Products and Foodstuffs (GI Act 2015), and GIs are protected according to the provisions of this act. Those who violate the Act will receive an order to cease doing so, and violation of that order is punishable by a fine, imprisonment or both. However, the Act also provides for protection for prior rights, such as with a trade mark the application for which was filed prior to the registration of the GI or in cases where there is prior use, in good faith, preceding the GI registration.

The news of the new GIs for UK products in Japan serves as a reminder of why GIs are so useful. Regional food and drink specialities are common and widespread in Japan – the country has a broad range of regional specialities which are significant for the domestic market, and these specialities are likewise significant for present or future export markets. Japan also has a prominent gift-giving culture with numerous customs and conventions. The packaging, presentation and authenticity of such gifts is considered very important, and GI protection engenders such authenticity and often goes hand in hand with attractive packaging and presentation.

Still, GIs have been subjected to controversy in the past because of how visibly the system produces “winners” and “losers”. Looking again at Japan as an example, the recognition and protection of GIs originating from other states intrinsically has the effect of reducing the ability of domestic undertakings to furnish the Japanese market with convincing and compelling analogues or imitations of the GI protected goods produced in line with the required specifications.

However, while the production methods of GIs can be stringent and difficult to adhere to, these impose identical burdens on all prospective producers. And looking at the Joint Statement where the UK and Japan secure reciprocal and commensurate protections for their respective GIs, it is clear that GIs can be mutually beneficial.

Martin Szarkiszjan is a lecturer at Nottingham Law School.

TOPIC: The Government’s commitment to reform Non-Disclosure Agreements (NDAs).

COMMENT BY: Sam Townend KC, Chair of the Bar Council

The issue of Non-Disclosure Agreements is ripe for legislative change and the Bar Council welcomes the Government’s intention to implement legislative reform. Some NDAs are abusive in nature. NDAs can’t cover criminal acts and under existing common law protections many are already unenforceable but those who are asked to sign them are not always aware of the relevant legal principles and may not have timely access to legal advice. Legislative change should aim to put these matters beyond doubt. Getting the wording and definitions right will be important and we look forward to working with the Government and others on this.”

TOPIC: This week’s ruling in the Supreme Court ruling on the ‘Mixed Injury’ appeal

COMMENT BY: Andrew Wild, head of legal practice at First4InjuryClaims

Today’s judgment is a victory for claimants who suffer a mixed injury following a road traffic accident.  It ought to now end insurers’ baseless objections to the clear and sensible guidance laid down by the Court of Appeal. 

The public was promised simpler, swifter access to justice when the whiplash reforms were launched nearly three years ago, and it is time for insurers to deliver on this mandate by clearing the backlog of claims that were awaiting this ruling. 

Vulnerable claimants deserve better and, now the judgment has been delivered so promptly, whether insurers like it or not, we can work together to ensure they receive the compensation to which they are entitled.” 

COMMENT BY: Ian Davies, partner at Kennedys

The prompt delivery of the judgment from the Supreme Court provides welcomed clarity on the approach to non-tariff injuries. The unanimous decision from the Supreme Court provides absolute certainty moving forward on the approach to be adopted. The caveat, included by Nicola Davies LJ in the Court of Appeal, remains and will be a significant boost to claimants considering cases in light of the new 17th Edition of the Judicial College Guidelines.”

TOPIC: The decision that Apple, Google and Meta will face EU Digital Markets Act (DMA) probes,

COMMENT BY: Alex Haffner, competition partner, Fladgate

The announcement of these probes is a very important development coming so soon after the DMA came into force. Ordinarily, you’d expect lawmakers to give a ground-breaking piece of legislation such as this a period of time to bed in before exercising any powers of oversight/review.

The fact that the Commission has decided already to consider enforcement action demonstrates how seriously it is taking the new regime and also its absolute insistence on taking pre-emptive action to regulate Big Tech rather than waiting for complaints about their behaviour to filter in.”

TOPIC: The announcement from the Levelling Up, Housing and Communities (LUHC) Committee that they have launched an inquiry on improving the home buying and selling process in England

COMMENT BY: Sheila Kumar, Chief Executive, Council for Licensed Conveyancers

We welcome MPs recognising the very great importance of reform of the home buying and selling process. Upfront information, digitisation and streamlining of the process will all be key in ensuring smoother, faster and more secure transactions that lead to better outcomes for consumers. The demands of operating the housing market under pandemic restrictions played a part in moving things along, but the pace of progress needs to be maintained if we are to deliver all the potential benefits of reform to consumers and the economy.”

Industry groups such as the Digital Property Market Steering Group and the Home Buying and Selling Group have been doing fantastic work to focus on what is needed, and this inquiry will provide a useful test of the direction of travel and galvanise the huge number of organisations and individuals that will need to deliver improvement. We look forward to providing evidence and working with the inquiry team.”

WFW

Nikki Chu has joined the maritime disputes practice of WFW in London this week as a partner. Previously a Managing Associate in the Marine and International Trade group at Stephenson Harwood she has more than a decade of experience as a disputes lawyer in the maritime and international trade sectors.

Her specialism lies in dry shipping, including charterparty, bill of lading, cargo and shipbuilding disputes and advises clients on LNG shipping issues. She has also worked on cases involving major incidents such as container stack collapses and fires.

“I am thrilled to be joining WFW whose reputation in the maritime sector is globally renowned and WFW are experts in the LNG market,” says Chu. “This is the perfect firm for me to service my clients and to reach out to new contacts as WFW represents many of the biggest names in the shipping industry. I am looking forward to working with old and new colleagues in London and contributing to WFW’s growing reputation in maritime disputes.”

CROSSLAND EMPLOYMENT SOLICITORS

Barry Ross (left) has been appointed as the new Managing Director of Crossland Employment Solicitors  as the next step in the firm’s emergence as an Employee Ownership Trust (EOT)

Crossland became an EOT in 2021 with the result that all of its employees are also now owners of the business. Ross himself joined Crossland in 2011 before becoming a Director in 2017. The new appointment is intended to give Ross a more prominent role in its leadership and administration.

 “I am delighted to take over the MD reins from [my predecessor] Bev Sunderland so she can concentrate on client work and provide her invaluable mentoring to the more junior team members.,” said Ross. I want to thank Bev for her amazing support for me personally – from the day she offered me a job on the spot when I was her opponent in a case, to her generosity, sharing her time, great wisdom, experience, business acumen and legal tenacity.”

The firm points out that in the 2024 editions of Legal 500 and Chambers UK guides, all four Partners are recognised as experts, along with the firm.