Edward Fennell’s LEGAL DIARY

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

January 27 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: SLAPP IN THE FACE

The issue of SLAPPs is one of the most difficult dilemmas facing the British legal system and legal professionals today. Not surprisingly many people feel outraged by the way SLAPPS are used by deep-pocketed operators in cahoots with (what might be seen as) cynical law firms. Journalists particularly feel affronted – as evidenced by the Leader article in The Times this morning (‘Slapp Down’) which declared that “The willingness of some lawyers to take on this kind of assignment is shameful.”

But pause for a moment and reverse the lens. Is that not the kind of language we would expect to see directed by supporters of Mr. Putin at Moscow lawyers acting for human rights organisations? As The Times admits, the handful of firms working for these undesirable characters ‘deny breaking any rules’. And, indeed they are probably correct in claiming such.

“What is missing from this defence is any recognition of wider ethical obligations to society,” continues The Times. Well, yes, lots of people and businesses do nasty, selfish, irresponsible things all the time. But they are not necessarily breaking the law. So maybe we now need careful thought and wise reflection on how to create better laws. But ‘better’ lawyers – in a moral sense – might be too much to expect.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Parlez-vouse legalese?

– Law firms ease pain of separation

– Outfoxing the Big Guns

– What’s in a name?

+ LEGAL COMMENT OF THE WEEK on Scottish legislation on gender recognition, recommendations made by the Women & Equalities Select Committee Inquiry into Menopause and proposed changes to the Human Rights Act

+ LEGAL APPOINTMENTS OF THE WEEK at Boodle Hatfield and Allen & Overy

+ E-VENTS

LEGAL DIARY OF THE WEEK

Parlez-vous legaleze?

The Right Honourable the Baroness Hale of Richmond DBE will be taking centre stage this weekend to give the keynote address at the Words to Deeds conference at Jesus College, Cambridge. The theme of the annual conference – which has been Covid-suspended for the past two years – is Risk and Juliette Scott will be setting the scene with her talk on ‘A Framework for Risks and Consequences of Legal Translation’

Of course, it is easy enough for English-speaking lawyers to overlook the enormous importance of legal translation. But seen from the other side of the Channel – sorry La Manche – it is a different story with a recognition of the diversity of risks that are involved in legal translation ranging across machine translation, enforcement risks, procedural risks, risks to human rights, fair trials and so on.

As a practical example, the International Criminal Court (ICC) has recently launched the French and Spanish versions of the ICC Case Law Database  (CLD). This is an easily searchable database of the Court’s jurisprudence providing free access to the entire case-law of the ICC in English with accompanying translations into French and Spanish. But that’s a lot of work.

So bring in the computers? Well, Eireann Leverett, The ‘Risk Expert’ will give an overview of cyber risks and machine translation risks, highlighting impacts in the real world. So it’s not just a matter for translators but, as Words to Deeds puts it ‘anyone with a stake in diligently translated legal documents’.

As a starter go to https://wordstodeeds.com/2012/08/14/20-tips-for-lawyers-working-with-interpreters/

Law firms ease pain of separation

Family law – it’s one of the growth areas in the law business right now. But of course it comes at a great human cost. Often hugely damaging to any children the parents also take an emotional buffeting . In a recent survey more than 90% of respondents said that their work performance was impacted when they went through a divorce, and 95% reported that their mental health at work suffered.More than 12% stopped work altogether.

So employers, including law firms, have a part to play in smoothing the very rough edges of the separation process. Cue the Positive Parenting Alliance (PPA) which aims to persuade businesses to introduce more family-friendly HR policies for staff going through a divorce or separation.

Among the law firms who have now signed up to the initiative are Payne Hicks Beach, Boyes Turner, Mills & Reeve and Laura Devine. Meanwhile it has the backing of Sir Andrew McFarlane, President of the Family Division. “The Australian Family Court promotes the slogan ‘You can separate smarter’. Encouraging UK parents to ‘separate smarter’ is what the Parents Promise is all about and I am 100% behind the Positive Parenting Alliance in doing so,” he said.“The immediate emotional impact of relationship breakdown is all-consuming. It hits a parent at work just as at any other time. The Positive Parenting Alliance calls for employers to recognise this impact, and to do what they can to support their employee, offers a ‘win/win’ outcome; good for employers and employees alike. Wise and insightful employers will, I hope, not need to think twice before responding positively to this call.”

NOTE: yesterday with the backing of Siobhan Baillie MP and Sir Andrew McFarlane the Positive Parenting Alliance launched a campaign for businesses to implement a number of HR initiatives, including: 

+Recognising separation as a ‘life event’ in HR policy so that those experiencing separation feel recognised and realise that they can access support

+Ensuring parents going through separation have access to flexible working to enable them to manage school and childcare pick-ups and drop-offs whilst they reconfigure their family setups. 

+Giving employees access to, and pointing them towards, emotional counselling during this period. 

+Signposting and access to separation support services so that parents can have the guidance and support that they need to separate in the most compassionate and child-focused way. 

For more go to: https://theparentspromise.org.uk/

Outfoxing the Big Guns

Veteran observers of the City legal scene will recall what a splash Fox Williams made when it unveiled itself in the pages of The Times more than three decades ago. Ronnie Fox, the big name partner, represented the self assured, worldly-wise lawyer of the time who was going to create a start-up outfit which would be more than a match for the bigger firms where he himself had cut his teeth. And it worked!

But times move on and now it has been announced that Gavin Foggo will be taking over as he firm’s fourth Senior Partner – succeding Paul Osborne – in May. Ronnie Fox always emphasised the importance of the firm’s culture from Day One and this is echoed now by Foggo. “Having been at Fox Williams since the start of my legal career, I know the culture of the firm is enormously important in creating a positive working environment,” he said. “Safeguarding our values and focusing on our diversity and inclusion are further personal priorities.”

One of the striking features of the firm’s success has been the growth of its international reach.“Continuing the impressive recent growth in our international practice will be a priority,” says Foggo. “Having helped develop the firm’s global reach, I am confident we are in a good position to grow this further in the years ahead.”

So what started as a boutique firm is now in the Legal Business 100. League tables had barely got going when the firm was born but the founders would be delighted at just how far it has come.

The Iceman Cometh Not

Following our Short Thought last week on the trademark row over Nike’s ‘Three Lines’ (on a shirt?), we cannot resist reporting on the decision of the Grand Board of Appeal of the EU Intellectual Property Office (EUIPO) to uphold a decision to cancel the supermarket chain Iceland Food Ltd’s EU-wide trade mark for the word ‘Iceland’.

The decision is “genuinely ground-breaking” according to trade mark expert Celia Tao of Pinsent Masons, as the Grand Board ‘rarely gets involved in cancellation proceedings’ and “only when the issues are somewhat unprecedented and of general importance.”

One would have thought that such an obvious bar to an IP absurdity was already, somehow, enshrined in law. And quite how the frozen food company managed to secure a trade mark for ‘Iceland’ in the first place is a bit of a mystery. But, in fact, the cancellation division of the EUIPO only became involved following a number of complaints – including, unsurprisingly from the government of Iceland itself.

However, Celia Tao went on to comment that the Grand Board did not rule out the possibility of registering country names as trade marks entirely.

“The key takeaway from this decision is that registering a country name as a European Union trade mark may not be impossible but will certainly be extra challenging from now on, as the Grand Board of Appeal indicated that these issues will have to be approached ‘with caution’ by the EUIPO,” she said. So anyone in the poultry business seeking to trade mark the title ‘Turkey’ might need to think again (although ‘Lapland’ for a laptop manufacturer might still be a goer).

LEGAL COMMENT OF THE WEEK

TOPIC: The Government’s proposals to replace the Human Rights Act and change how human rights are protected in the UK

COMMENT BY: Joanna Cherry KC MP, Chair of the Joint Committee on Human Rights  

  “Human Rights are universal.  A Bill of Rights should reaffirm and reinforce the fundamental rights that protect everyone in the UK, but this Bill does nothing of the sort. Instead, it removes and restricts certain human rights protections that the Government finds inconvenient and prescribes a restrictive approach to the interpretation and application of the European Convention on Human Rights in the courts of our domestic legal systems.   We are also very concerned about the adverse impact on the constitutional arrangements of the devolved nations and the Good Friday Agreement. 

“The end result, if the Bill is enacted in its current form, will be more barriers to enforcing human rights, more cases taken to Strasbourg and more adverse judgments against the UK. Decades of precedent and case law, that the UK still plays a key role in developing, would be abandoned, leading to legal uncertainty and litigation.    

“We have called on the Government to reconsider the vast majority of the clauses of the Bill. However, there is such little appetite for these reforms and the impact is likely to be so damaging to human rights protection in the UK it may be more sensible to scrap the Bill in its entirety.”  

TOPIC: The Government’s decision to reject key recommendations made by the Women & Equalities Select Committee Inquiry into Menopause and the Workplace

COMMENT BY: Adam Pavey, Employment Partner at Beyond Corporate,

 “The Government has published their response to the Select Committee Inquiry in to Menopause and the Workplace.  I provided written and oral evidence to the Committee and am a strong advocate for women’s rights in this area.  As a father of three daughters I don’t want them to suffer them same sort of discrimination which I have seen countless women suffer in the workplace. 

In a surprising move the Government has rejected five of the key recommendations without providing any opportunity for further consultation. I am most shocked by the Government rejecting the call for establishing model menopause policies.  This would have been a relatively easy step which could have created consistency and clarity surrounding the issue.  We have model policies produced by ACAS surrounding workplace policies such as disciplinaries which if not followed can have financial consequences in the Tribunals.  There appears to have been a failure to even consider this type of approach. 

The Inquiry also called for the Government to consider introducing menopause as a new Protected Characteristic.  This would allow a menopausal woman to be able to claim menopause discrimination rather than having to say that it is disability discrimination; a position which has always seemed wrong.  While, it was anticipated that this wouldrequire careful drafting and consideration it is amazing that it has essentially been rejected out of hand without any reference to the inherent issue of calling menopause a “disability.”

NOTE: Adam Pavey, Employment Partner at Beyond Corporate, was asked to give evidence at the Houses of Parliament to the Committee:  watch Adam speaking in Parliament here

COMMENT BY: Louise Skinner, employment partner, Morgan Lewis

“The Government published its response to the Women & Equalities Committee’s report on Menopause and the workplace today.  With women aged over 50 the fastest growing demographic in the UK workforce, it is widely recognised that steps should be taken to improve the experience of those experiencing menopause at work in order to retain this valuable talent. In what the Committee calls “a missed opportunity”, the Government has rejected five of their recommendations, including that there should be consultation on making menopause a protected characteristic, and that section 14 of the Equality Act 2010 should be enacted to allow discrimination claims to proceed based on two protected characteristics combined.  

The Government does not currently intend to produce model menopause policies to assist employers in supporting menopausal employees, although does emphasise its aim that employers and workplace colleagues should be educated and informed about symptoms of menopause and how they can support women at work.  Notwithstanding the Government’s decision to instigate little formal change at this time, there is much that can be done to improve the experience of menopausal employees and retain this important demographic in the workplace.  Employers should consider taking proactive steps to create an inclusive, supportive environment for menopausal employees which could include implementing policies, appointing menopause champions, providing training and information for employees and line managers, and sign-posting employees to appropriate occupational health services.”

TOPIC: The UK Government’s decision to block new Scottish legislation on gender recognition

COMMENT BY: Dr Alex Latham-Gambi   Assistant Professor, Birmingham Law School

“For the first time in history, the UK Government has announced its intention to block a law passed by the Scottish Parliament. The Gender Recognition Reform (Scotland) Bill would allow trans people in Scotland to obtain a gender recognition certificate without a medical diagnosis – but it might now be prevented from receiving Royal Assent.

Section 35 of the Scotland Act 1998 gives UK Ministers power to block a Scottish Bill if they have ‘reasonable grounds to believe’ that it ‘would have an adverse effect on the operation of the law as it applies to reserved matters’ – that’s to say those areas on which the Scottish Parliament lacks the power to make law).

The UK Government believes that this section applies because the Gender Recognition Reform (Scotland) Bill will affect the operation of equality law, which is a reserved matter. This is because it will make it easier for people to change their legally recognised sex, and so, arguably, affect how the law on sex discrimination works.

The Scottish Government has vowed to legally challenge any attempt to block the Bill. Since section 35 has never previously been used, this takes us into uncharted waters. There is certainly a strong argument that the Bill does affect the application of equality law, but whether it is reasonable for the UK Government to believe that this amounts to an ‘adverse effect’ is, of course, a highly controversial political question – and one that the courts will not relish being called upon to answer.

This dispute also highlights broader constitutional issues. Unlike in federal countries, the UK system of devolution is not constitutionally entrenched – legally-speaking the powers of the devolved legislatures could be taken away at a stroke. The whole devolution settlement therefore rests on an understanding that the UK Parliament and Government will exercise forbearance, allowing devolved institutions to implement policies they believe to be profoundly mistaken.

Recently, the UK Government has shown willingness to play constitutional hardball: it has passed key Brexit legislation without the Scottish Parliament’s consent, taken the Scottish Government to court over their plans to incorporate international children’s rights into Scots law, and refused a request for a second independence referendum.

The UK Government appears to believe that there is political capital to be made in taking a firm stance, but many supporters of devolution fear that such a high-stakes gamble threatens the stability – indeed perhaps the existence – of the United Kingdom.”

TOPIC: The plans by the Department for Business, Energy & Industrial Strategy, for a new statutory code to crack down on employers using controversial dismissal tactics such as the ‘fire and rehire’ policy.

COMMENT BY: Chris Perkins, UK and international employment law partner at PwC

“The plan for a new statutory code proposes strong action against employers who use the controversial dismissal practice of ‘fire and rehire’. This strategy for changing employment terms and conditions is already high risk for employers, with the potential for employees to bring unfair dismissal and other claims against the organisation. Not only can this potentially result in financial claims, but the reputational impact of the ‘fire and rehire’ practice can be detrimental to an organisation as an employer.”

“The code proposes a rigorous process of communicating and consulting on changes to contracts of employment, along the lines of the familiar requirements for undertaking collective redundancies and transfers of undertaking. Employers will need to introduce more formal, and well documented procedures to demonstrate compliance with these new guidelines; as if employers fall foul of the new code, there will be major financial consequences.”

COMMENT BY: Alastair Woods, Workforce Transformation Partner at PwC

“The proposed statutory draft code provides clear guidance for employers that reinforces the need for them to take a strategic and holistic approach to managing their workforce in a tough economic climate. PwC’s recent CEO survey highlights how seriously business leaders are taking the shortage of skilled and talented workers alongside the tough conditions they are operating in. As such, employers need to continue to focus their approach on better workforce planning, upskilling and acting as a responsible employer in a labour market that continues to be tight.”

APPOINTMENTS OF THE WEEK

BOODLE HATFIELD

Zoe Jacob, an immigration barrister, has joined Boodle Hatfield as a Partner to establishe a new immigration practice for the firm thereby bolstering its existing Private Wealth and Corporate offer. Previously with Farrer & Co, Jacob has more than a decade’s experience advising both Ultra High Net Worth and High Net Worth individuals as well as institutions in all areas of UK immigration and nationality law. She has a reputation for a strong client-centric approach with the ability to find innovative, commercially viable solutions in unusual circumstances and on highly complex matters. She also works with businesses applying for sponsor licences and Skilled Worker visas and has acted as counsel for the Home Office in respect of appeals in the Immigration Tribunal.

 “Zoe’s skills will prove invaluable to clients immersed in complex private wealth and employment matters.” said  Andrea Zavos, Boodle Hatfield’s Head of Private Client and Tax. “Having Zoe’s expertise and an in-house immigration practice is an excellent addition to Boodle Hatfield’s top tier private client practice.”

ALLEN & OVERY

Dr Josef Parzinger (above) is joining Allen & Overy’s Banking & Finance practice as a partner in the firm’s Munich office.

Previously with Kirkland & Ellis, Parzinger has extensive experience in advising creditors, debtors, the management or shareholders in connection with cross-border corporate and financial restructurings. Clients have included alternative investors such as funds specialising in private debt and distressed situations where he advises on the acquisition and restructuring of capital market instruments, loans or liquidation claims. He also advises the creditors seeking to protect their interests in cases of an insolvency of their contractual counterparties. 

“With Josef Parzinger joining the team, we are boosting our market-leading Banking & Finance practice with a brilliant restructuring expert who also boasts comprehensive experience particularly in advising private debt and distressed funds,” said Dr Wolf Bussian, Managing Partner of Allen & Overy Germany. “This puts us in an excellent position to meet the growing need for advice which we anticipate in view of the economic downturn forecast for this year.”

E-VENTS

We hope that you have found this edition of The Legal Diary interesting (and even useful). If so please circulate to colleagues.

Meanwhile, please continue sending your legal diary stories, comments and insights to: fennell.edward@yahoo.com