Edward Fennell’s LEGAL DIARY

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

December 16th 2022

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: ON PHILANTHROPY

As we enter the last lap in the run-up to Christmas no doubt many people are making additional charitable donations. The problem is that this year, maybe more than most, there is such a wide range of compelling ‘good causes’ to choose from starting in Afghanistan and ending up via Ukraine and Yemen in our own High Streets.

For the mega-rich the challenge is even more difficult. As Catherine de Maid Partner, Head of Philanthropy at Burges Salmon comments in the firm’s new guide to philanthropy Turning Good into Great – Insights into Effective Philanthropy ‘’When deciding on a focus for your philanthropy and developing a strategy, it can be difficult to know where to start’.

Sadly this comes at a time when Sam Bankman-Fried, the possibly criminal founder of FTX, is giving ‘effective altruism’ a bad name. If you’ve got lots of money to give away then sound legal advice is probably needed now more than ever.

TheLegalDiarist

Turning Good into Great –Insights into Effective Philanthropy’ is available here.

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Global Rights Compliance Acts over Sexual Violence in Ukraine

Law Firms Doing Better Than Most for DEI

Stakeholder Governance is Forcing General Counsel to Re-focus

Aria Grace Law – The Exception That Proves the Rule?

+ LEGAL COMMENT OF THE WEEK on the Balenciaga ad campaign, the infected blood scandal and the latest insolvency figures

+ CONTRIBUTED ARTICLE OF THE WEEK

WHICH WAY TO GO WITH WFH? asks James Cresswell, employment solicitor at SA Law.

+ LEGAL APPOINTMENT OF THE WEEK at Clarke Willmott and Browne Jacobson

LEGAL DIARY OF THE WEEK

Global Rights Compliance Acts over Sexual Violence in Ukraine

In a move which would have been (almost) unthinkable this time last year a first-of-its-kind‘Sexual Violence Mobile Justice Team’ has been set up this week in Ukraine. Its role is to to support the Ukrainian Office of the Prosecution’s work in investigating and prosecuting ‘conflict-related sexual violence’. Notoriously, of course, such violence was a tactic adopted by the Soviet troops as they advanced through Nazi Germeny in 1945. So maybe it is not too surprising that Putin’s forces have resorted to the same approach in occupied Ukraine.

The experts being brought into assist the Ukrainian authorities come from Global Rights Compliance, an international human rights law firm and foundation, specialising in international humanitarian law, international criminal law and business and human rights. “The formation of the Sexual Violence Mobile Justice Team is intended as another tool for the Ukrainian justice system to use to seek justice for Ukrainian survivors,” says Wayne Jordash KC, Managing Partner and Co-Founder of Global Rights Compliance. “Working at the behest of the Ukrainian authorities, we will work to ensure that those who suffer these terrible crimes are supported and that Putin’s men are brought to account.”  

Based in The Hague, Global Rights Compliance operates specialist advisory and litigation teams which have provided representation before the International Court of Justice, the European Court of Human Rights, the African Court on Human and People’s Rights. Wayne Jordash KC is associated with Doughty Street Chambers and has a diverse track record including having represented Serbia at the ICJ (concerning alleged violations of the Genocide Convention) in their case against Croatia. He also acted as an advisor to the Principal Defender at the Extraordinary Chambers in the Courts of Cambodia (ECCC), advising on a range of international law issues relevant to the defence of former Khmer Rouge members of the Pol Pot regime, including the deputy to Pol Pot (Nuon Chea) and the former Minister of Foreign Affairs, Khieu Samphan. For more go to https://globalrightscompliance.com/home-practice/about/

Law Firms Doing Better Than Most for DEI

Gratifyingly for the legal sector, law firms are described as ‘leading the charge’ when it comes to Diversity, Equity and Inclusion’ (DEI) initiatives compared to other firms in professional services. Research by iResearch Services has revealed that law firms are ‘much more active than their peers’, having run DEI initiatives over the past six months at a higher rate (86%) than accountancy firms and consultancies. They are also more assiduous in measuring how effective their DEI initiatives are.

Amongst the iResearch findings from across professional service firms it is striking that while race and ethnicity attracted most activity just 12% of firms focused on their LGBTQ+ policies.  And while two-thirds of firms support employees disclosing their disabilities only 31% are running initiatives designed to support those with disabilities.

“It’s positive to see that legal firms are active in wider DEI conversations – there is a great deal of transparency and discussion around DEI coming from legal thought leaders and professional bodies in the form of articles, blog posts, and workshops,” said Rachael Kinsella, Editor in Chief at iResearch Services. “However, there is work to do across the industry. One driver of greater transparency and discussion in the legal sector is their reporting requirements. In the UK, for example, the SRA requires all regulated firms, regardless of size, to collect, report and publish data on the diversity of their workforce every two years. Other professional services sectors, however, rely on voluntary reporting that is not standardised across the industry.” In other words the extra bureaucracy seems to be paying off.

See the full report at: https://www.iresearchservices.com/report/a-fairer-future-equity-and-inclusion-in-professional-services/

Stakeholder Governance is Forcing General Counsel to Re-focus

Helena Samaha of Lex Mundi

The durability of the new “stakeholder governance paradigm” has significant implications for General Counsels’ involvement in strategic decisions and risk management according to research undertaken by Lex Mundi, the international legal grouping. According to the just-published report “Global Crosswinds, Stakeholderism and General Counsel” the shifting landscape of stakeholder pressure, particularly the tilt towards sharper regulatory action, necessitates a ‘step-change in risk management, stakeholder diligence and qualitative horizon scanning’.

This is creating a markedly changing landscape of issues upon which GCs must focus including:

– getting to grips with what is described as ‘a perfect storm’ of negotiating lender KPIs and regulations that target carbon emissions against the backdrop of rising borrowing and energy costs. Complicating things further, it is said that ‘central banks are imposing additional pressure on lending institutions, and ‘greenwashing’ fines have started to bite’.

– activism among shareholders has only increased and is more focused on environmental and social issues, counter to the expectation that economic crosswinds and the regulatory tilt might take the heat off boards and management.

As a result GCs are now sharpening their focus on how to bridge their external and internal constituencies.But there are challenges.“Global events have redefined our understanding and sentiment towards ESG concepts and other emerging areas of regulation,” says Helena Samaha, CEO and President of Lex Mundi. “These factors are impacting the stakeholder agenda at an accelerated rate and increasing pressure on in-house legal departments, many of which are reporting that they are reaching a breaking point in their ability to advise on regulatory compliance.” So keeping all these balls in the air is for Gcs the new – maybe impossible – challenge.

The 2022 report (which the 2023 report builds on) can be accessed here: https://www.lexmundi.com/resources/thought-leadership/enterprise-values-vs-enterprise-value/

Aria Grace Law – The Exception That Proves the Rule?

Lindsay Healy

“Let’s kill all the lawyers,” was the revolutionary ideas famously suggested in Shakespeare’s Henry VI. So will none escape a whipping?

Well maybeAria Grace Law might win a pardon now that it has become the first corporate law firm in the UK to become a ‘community interest company’ (CIC). Moreover in a landmark sign of philanthropy it has announced its commitment to donate all profits to charity.

Set up just four years ago by Lindsay Healy, a former lawyer at City firm Norton Rose Fulbright and general counsel at CSC UKI Aria Grace is one of the pioneers of the ‘dispersed’ law firm model. The number of corporates served by the firm has quadrupled since 2020. By and large its 58 lawyers are already highly experienced and well regarded in the industry and – here’s the point – they are individually regulated by the Solicitors Regulation Authority.

In other words they are not a typical law firm. However, the way they operate might become increasingly popular to older lawyers who want a change of style in the second half of their careers. Indeed, over the past year its new recruits include Louise Wolfson, former Allen & Overy corporate partner; Elena Cooper, former head of EMEA for employment at Duane Morris; Emma Hickson, former partner and head of IT and cyber and Rocio de la Cruz, a data protection, information and privacy specialist, both from BPE Solicitors; Amy Leite, a franchising partner from Nexa, and Katerina Nomicos, tax and compliance partner, from gunnercooke.

As things stand, the Aria Grace lawyers retain 90% of their fees but all of the net profits then go to charity after the overhead costs have been met. “We are unashamedly about making more money for our lawyers because that feeds into the charity pots, but the model means they do not have to flog themselves into the ground to achieve it,” says Lindsay Healy. “The firm is on track to donate at least £200,000 this year to its charities including AGE UK and the Trussell Trust.”

Healy comments, additionally, that the traditional law firms are  ‘predicated on greed and poor value to clients’. Who will stand up to disagree?

LEGAL COMMENT OF THE WEEK

TOPIC: The Balenciaga ad campaign that showed images of children holding teddies in S&M garb

COMMENT BY: Zahra Awaiz-Bilal, Senior Associate in the Abuse team at Bolt Burdon Kemp


 “
Many victims of child abuse suffer from post-traumatic stress disorder and triggers, such as the images used by Balenciaga, can cause victims to experience flashbacks and intrusive memories of the abuse they suffered and relive the traumatic events. Such triggers can also derail their recovery and cause them to suffer a relapse. Whilst an apology and acknowledgement of the wrong can often play a part in repairing the damage done, on this occasion it’s unlikely to be enough given the far-reaching consequences of Balenciaga’s careless actions.”

TOPIC: The statement by Paymaster General, Jeremy Quin, to the House of Commons about compensation to those affected by the infected blood scandal

COMMENT BY: Des Collins, adviser to over 1500 victims of the infected blood scandal 

“We welcome Jeremy Quin’s update to the House today. For the first time we learned that the Government accepts the moral case for compensating those affected by the infected blood scandal. We hope this means that the Government intends to do the right thing morally and will pay compensation to parents, orphans and others who have lost loved ones. 

It was reassuring to learn that work is underway preparing the Government response to the Inquiry’s final report and its recommendations on compensation. Mr Quin said that working-party groups have already been convened and we welcome the Government’s recognition of the careful planning required to determine how compensation is delivered.

As ever, however, today’s statement was light on timetable and detail. Our clients’ wait continues in terms of practical outcomes and progress. Also as their advisers we should be involved in the working-party groups to ensure that the mechanisms being planned are workable. 

Nevertheless, as we near the end of 2022, the moral battle has finally been won”

TOPIC: Worsening insolvency statistics with voluntary liquidations up 50% on pre-pandemic levels

COMMENT BY: Jeremy Whiteson, Partner in Fladgate’s Restructuring and Insolvency practice

Data on registered insolvencies for November 2022 were published on 14 December. 2029 corporate insolvencies were registered. That is 21% higher than in the same month the previous year and 35% higher than November 2019 (being the last pre-covid comparison).

However, of particular concern is the increase in figures from recent months. The November 2022 figures are a 7% increase on the October 2022 figures which are also an increase on the September figures. While that may not look like a big increase, it goes against the trend earlier in the year of declining numbers of insolvencies month on month.

Notably, the numbers of administrations and company voluntary arrangements (CVAs)- procedures more likely to be used to rescue a business- showed an increase on recent months. There were 134 administrations and 10 CVAs in November 2022- 25% and 50% higher than in October 2022 (although still lower that November 2019 respectively).  That is concerning as it suggests that the high number of insolvencies affecting redundant companies and reflected in the liquidation figures, is now spreading to trading businesses.

While the gloom was spread across a range of sectors, the real estate area had a particularly sharp increase with a 38% increase in insolvencies over October 2022.”  

CONTRIBUTED ARTICLE OF THE WEEK

WHICH WAY TO GO WITH WFH?

asks James Cresswell, employment solicitor at SA Law

James Dyson’s criticism of the Government’s plans to extend employee’s rights to work from home is somewhat ill-considered. The recent change will likely not have as great an impact as many people believe; it does not give employees a day-one right to flexible working, merely a day-one right to request flexible working (a right that previously accrued upon reaching six months service). The day-to-day impact on employers from this change is therefore likely to be slim.

There are eight broad reasons an employer can give to refuse a flexible working request, and in most scenarios a company wishing to refuse such a request will usually find a lawful ground to do so. Sir James is therefore being somewhat exaggeratory in stating companies will have “little control” over how and where employees work.

To further clarify, flexible working does not just constitute working from home. It also includes arrangements such as amended working hours that employees may require for reasons such as childcare. As childcare responsibilities disproportionately impact women, Sir James’ outlook will only build barriers to male-dominated industries (such as his own), despite the desperate need for greater female representation.

Many had hoped the out-dated notion that working from home isn’t ‘real’ working had been disproved during the pandemic, when the worldwide workforce collectively demonstrated its ability to work remotely and effectively. Admittedly, remote working will not be suitable for all employers and employees; in-person collaboration may well fuel creativity for tech engineers and be important for the development on junior staff members. However, the notion that flexible working should not be permitted because it doesn’t benefit everyone, and as it is not possible for “bus drivers and retail staff”, is unfortunately narrow sighted of Sir James.

Whilst I am confident the change to flexible working requests will not have the calamitous consequences feared by Sir James, his unwavering approach shared by the likes of Elon Musk may well backfire in this candidate led recruitment market. The desire for mutual trust and a healthy work-life balance is greater than ever, meaning enhanced workers’ rights may well benefit rather than hinder both the retention and recruitment of staff, as well as Britain’s competitiveness.

LEGAL APPOINTMENTS OF THE WEEK

CLARKE WILLMOTT

Matthew Wilson

Matthew Wilson is joining Clarke Willmott LLP as a new partner and Head of its Asset Management team. His prime role will be to support Registered Providers (RPs) and Registered Social Landlords (RSLs) with housing condition claims. In what has been an area of high profile public concern recently he will He will provide support with litigated cases including claims surrounding the fitness of a property for habitation and prosecutions raised on grounds of prejudice to health. He will also supply strategic guidance on clients’ internal processes to ensure that they future proof themselves against further claims and manage their assets effectively. 

Previously with Weightmans Wilson has 16 years of experience advising social landlords on contentious and non-contentious housing and asset management matters.  A recent review in the Legal 500 commented that he displayed a ‘depth of knowledge which puts him way ahead of his competitors’ .

“We are thrilled to have Matthew join our growing housing management team in the North West,” said Lindsay Felstead, joint sector head and head of the housing management team.  “He has unrivalled experience of housing conditions claims related to the state of properties and has successfully defended countless cases at trial. Over that time he has developed an in-depth understanding of building pathology which provides a unique ability to formulate defences to claims.” 

BROWNE JACOBSON

Carly Caton

Carly Caton has joined Browne Jacobson as a partner in its London commercial health team. She joins from Bevan Brittan having had extensive experience advising both the NHS and independent health care providers as well as suppliers to the healthcare market on all commercial, contractual and partnering matters. Both Chambers and Legal 500 have ranked Caton for her “excellent stakeholder engagement skills and unparalleled depth of knowledge of the health sector. She offers exceptional support and combines expertise with relationship skills, insight and humour and is always prepared to go the extra mile”.“

Clare Auty, partner and head of commercial health at Browne Jacobson commented, “The moves towards greater integrated health and social care models, increased collaboration between different health providers, digital disruption and continued investor appetite in the sector means there is a demand for specialist health sector legal advice. We are delighted to welcome Carly to help us meet this growing demand from clients. She is a highly experienced commercial health partner with deep sector knowledge. She will be an invaluable asset to our clients and her appointment underpins our position as one of the UK’s leading commercial health teams.”

Browne Jacobson has one of the largest teams of healthcare lawyers in England. In 2021 the firm won the Legal Advisor (Private) Award at the LaingBuisson Health Awards.

WE hope that you have found this issue of the LEGAL DIARY interesting. If so, please relay on to colleagues.

Meanwhile we shall be publishing next Friday – 23 December – before shutting down for a Christmas and New Year Break. But please continue to send your Diary stories, legal comments and insights to

fennell.edward@yahoo.com