Edward Fennell’s LEGAL DIARY

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

February 3 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Bringing Justice Home (for people who live in glass houses)

It’s been a week when individuals’ ferocious determination to defend their most elementary domestic rights – not to be denied access to their property by a neighbour’s intrusive fence or not to have their privacy stripped away by thousands of prying eyes – have taken centre stage in the legal world. Following all the high minded wrangles recently about SLAPPS and Scottish legal autonomy it was somehow reassuring to see the law being deployed in the highest courts of the land on rights so close to home. It was also a tribute to the fierce desire of people to have ‘their day in court’. For all the talk about legal AI, those with grievances still want to see justice being done in a courtroom in front of other human beings.

Of course, this is all premised on having deep enough pockets to pay for the privilege. Securing justice (as one sees it) can prove a very expensive undertaking. Yes, stubbornness can pay off. But if an English-man/woman/person is to retain their rights to their castle then the Supreme Court is just a small fortune away.

TheLegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Clients Press for Alternatives to Billable Hours

– Lex Mundi Picks up Social Enterprise Award

– Westminster Podcast hears about Modern Slavery

– AMPA Goes from A to B

+ LEGAL COMMENT OF THE WEEK on privacy at Tate Modern, sanctioning individuals, the infected blood inquiry and Transparency International

+ CONTRIBUTED ARTICLE OF THE WEEK

– Family Courts and the Media by Julian Hayes

+ APPOINTMENTS OF THE WEEK at Farrer & Co and Brown Rudnick

LEGAL DIARY OF THE WEEK

Clients Press for Alternatives to Billable Hours

The perennial debate about the ‘billable hour’ model for charging clients seems to have shifted into another gear this week with the publication by LexisNexis of ‘Calling time on the billable hour’.

According to this new investigative report almost half of all external legal spend is now taking place through alternative fee arrangements such as flat or fixed fees. Significantly this major shift has occurred since the pandemic whose impact persuaded clients to push for fee structures which offered greater clarity over pricing.

According to the senior General Counsel interviewed for the report, alternative fee structures provide price certainty and allow for a better comparison of costs. No surprise then that the vast majority (85%) of law firms which offer these arrangements did so as a result of client demand rather than doing so under their own initiative.

Arising from this LexisNexis now suggests that law firms should consider a blended model – alternative billing schedules for routine work but the billable hour for consultative, urgent or ongoing work.

“In-house legal teams are under growing pressure to do more with less,” said Dylan Brown, the report’s editor. “In today’s economic environment, greater certainty and transparency around legal spend is a must. Rather than using a high-touch approach to strengthen client relationships, lawyers would benefit most by demonstrating value added – and this is considerably easier with the right technology and tools in place.”

Read the report here: https://www.lexisnexis.co.uk/insights/calling-time-on-the-billable-hour/index.html

Lex Mundi Picks up Social Enterprise Award

Lex Mundi , the network of independent law firms, has been awarded a Catalyst Business Commitment (‘CBC’) Platinum badge, the most prestigious badge awarded to private sector organisations who partner with social enterprises . The announcement came during the Davos Affiliate Session: Unlocking the Social Economy. Other recipients included Ebay,Microsoft,SAP,EY andCompassDiversified.

It has been well earned. Over the past 17 years, the Lex Mundi Pro Bono Foundation has served more than 1,000 entrepreneurs, impacting more than 100 countries, supporting thousands of matters around the world,  and addressing all of the United Nation’s Sustainable Development Goals (SDGs).

“For every grand challenge, there are dedicated social entrepreneurs working on impactful solutions,” said Isis Bous, Managing Director, Lex Mundi Pro Bono Foundation,. “And they are, without question, more successful when they have access to quality pro bono legal advice. We know that our firms’ pro bono legal support has had tremendous impact. Lex Mundi lawyers help social enterprises scale faster, expand their reach, secure funding, and ultimately achieve greater success. To put it simply, social entrepreneurs do well by doing good. And with the help of Lex Mundi lawyers, they can change the world.“

NOTE: The Lex Mundi Pro Bono Foundation has a long-standing relationship with Catalyst 2030, having been commissioned in recent years to produce “Legal reform as a catalyst for social enterprise: an international social enterprise law & policy report”. The research was underetaken by  Morrison & Foerster, a Lex Mundi member, with the support of the Lex Mundi Pro Bono Foundation and more than 60 additional Lex Mundi member firms.

For more on Catalyst 2030 go to https://catalyst2030.net/

Westminster Podcast hears about Modern Slavery

‘Modern Slavery’ is the topic under discussion this week in the ‘Committee Corridor’ podcast from the House of Commons Select Committees, presented by Joanna Cherry KC MP, Chair of the Joint Committee on Human Rights.

Featuring Professor Dame Sara Thornton (the former Independent Anti-Slavery Commissioner), Sarah Champion MP (Chair of the International Development Committee) and Tim Loughton MP ( a member of the Home Affairs Committee) there is an opportunity to catch up on what are seen as the urgent priorities around modern slavery and the UK Government’s response. 

The podcast underlines the scale of the problem within the UK. Sara Thornton warns that, “In 2021, 12,600 potential victims were identified, but in fact… the number experts predict is probably around a hundred thousand”. She also highlights the global aspect, adding, “Forced labour is pervasive in global supply chains, and the focus really, needs to be on finding it and fixing it, and ensure that those who are affected, those who are exploited, have some sort of reparation or remedy.”  

The issue of Albania is addressed in particular by Tim Loughton who asks “Why has there been such a big upsurge in the numbers from a particular country now claiming modern day slavery?”. He suggests that the UK needs to work closely with the Albanian authorities to understand the drivers of this growth and ensure potential victims of modern slavery were better supported.  

And while the 2015 Modern Slavery Act had offered “genuinely world-leading” efforts to address “forced labour risks in these very long global opaque supply chains” some of the measures in the Nationalities and Borders Act 2022 may now be making the fight against modern slavery more difficult.

NOTE: Committee Corridor is available from the usual podcast providers.  Find the details of all past episodes on the UK Parliament website

Ampa Going from A to B

Ampa, the legal and professional services group, continues to grow. Bringing together the Midlands law firm Shakespeare Martineau, national consumer legal brand Lime Solicitors, uninsured loss recovery experts Corclaim, planning consultancy Marrons Planning and cyber security experts CSS Assure, Ampa’s other main law firm Mayo Wynne Baxter has now absorbed neighbouring south coast law firm Lawson Lewis Blakers to take the team to more than 220 people and add £2 million to its turnover.

“The two firms are both stalwarts of the professional services sector and have a long-held mutual respect for one another,” commented Dean Orgill, chief executive partner at Mayo Wynne Baxter. “The firms share common values of providing a first-rate professional service for their clients and of looking after their people. Both have held Lexcel accreditation for many years. As Mayo Wynne Baxter continues its growth as part of Ampa this was a clear first step along that path.”

The Ampa group of brands has been named as one of the UK’s top 100 large companies to work for as well as top 25 law firms in the Best Companies list 2022. It has also recently achieved ‘B Corporation’ accreditation as a business meeting high standards of verified performance, accountability, and transparency on factors from employee benefits to supply chain practices.

For more about B Corporation go to https://www.bcorporation.net/en-us/certification

LEGAL COMMENT OF THE WEEK

TOPIC: The Supreme Court decision on the Tate Modern privacy case.

COMMENT BY: Angela Gregson, Partner in the property disputes team, RWK Goodman

“The Supreme Court has found in favour of the residents in the Tate Modern case. It concluded that the Tate’s viewing platform, which had over 500,000 users a year was not a common and usual use of the property and the overlooking into the residents glass walled flats caused a nuisance. 

Whilst this is a landmark for the concept of privacy in English law it will not prevent development of high rise or other buildings with usual residential or commercial uses, even if there is overlooking . 

We are yet to find out whether an injunction will be granted ie whether the Tate will be forced to close or partially close the viewing platform. The High Court will determine this in due course.​”

COMMENT BY: Adam Gross, Partner at Fladgate

“By a 3-2 majority, the Supreme Court held in the case of Fearn v Tate Trustees that operating a viewing gallery at Tate Modern was liable in nuisance to neighbouring flat owners. The neighbours to Tate Modern felt like they were on “display at a zoo”, and the court found that the view into the neighbours’ homes from the viewing gallery which attracted hundreds of thousands of visitors a year was unlawful.

The decision has gone back to the High Court who are considering whether to order an injunction or damages in lieu of an injunction. The key issue, though, for developers on live and future projects, and building owners seeking to maximise on the profitability of the space in their building, is that visual intrusion can be a nuisance where the use of property is not common and ordinary. And it is not a defence in those circumstances to say the neighbours should simply erect blinds or curtains to protect their privacy, or that the flats went up after.”

COMMENT BY: Claire Lamkin, partner in the Real Estate team, Kingsley Napley

“The Supreme Court has decided that residents of a glass block of flats have been subjected to intense visual intrusion by the use of the Tate Modern’s viewing platform by its visitors. The Court found that although neighbours are expected to adopt a ‘give and take’ approach and to take adequate measures to alleviate issues between them, the Tate’s use of its viewing gallery did not constitute a reasonable use of its land for the local area.

“Whilst today’s decision is a victory for the claimant flat owners and is important in terms of clarifying nuisance and privacy under the law, the judges emphasised the rare circumstances in this case. The likelihood of all nuisance cases succeeding in future remains slim. However, it will no doubt precipitate a wave of copycat cases where people feel a property development near them is highly intrusive. And to that extent builders, architects, developers, town planners and policy makers will need to check their plans carefully from now on to minimise the risk of future similar litigation.

“In the meantime, the Supreme Court has remitted the case back to the High Court to determine whether the residents are entitled to an injunction to prevent the viewing platform from being used.”

COMMENT BY: Edward Machin, Ropes & Gray’s data, privacy & cybersecurity practice

“Relying on the right to privacy has become one of the most potent weapons in litigation, so it’s interesting to see the court find that doing so here would have been an unnecessary complication and distraction. 

That the dispute clearly involves an invasion of privacy in the broadest sense – albeit one that can be resolved with different legal principles – makes it a particularly refreshing approach.  The case won’t stop litigants looking to use privacy laws, but it’s a good reminder that other legal arguments are available and may be better suited to the facts of their case.”

TOPIC: The recent High Court judgment of PJSC National Bank Trust v Mints which has wide reaching implications on sanctioned individuals and entities litigating in the English courts.

COMMENT BY: John Machell KC, Serle Court, who acted for the ninth defendant.

 “Mrs Justice Cockerill has recently handed down judgment in PJSC National Bank Trust v Mints [2023] EWHC 118 (Comm) in which she considered the effect of the Russian sanctions on various litigation issues.

“In short, she held that sanctioned claimants can sue for damages and judgment can be entered in their favour without the regulations being contravened; and payment of costs to and by sanctioned persons (i.e. adverse and favourable) and security for costs to be provided by sanctioned persons are licensable activities”

John Machell KC acted for MFT (PTC) Limited (together with James Knott of 4 Stone Buildings) instructed by Jonathan Speed and Simona Peter of Bird & Bird.

TOPIC: The final day of the Infected Blood inquiry

(today 3 February)

COMMENT BY: Des Collins, Senior Partner of Collins Solicitors and adviser to 1500 victims and families impacted by the infected blood scandal

“On behalf of my clients, I would like to thank all those who have given evidence during the last four years and the Inquiry team for their thoroughness and diligence. It is a great pity that what we heard was not exposed and explored years earlier, given much of the evidence and events stem from the 1980s and 90s – but better late than never. The infected blood scandal was a story that needed to be told and its important lessons learned.

“There are vital learnings for the Government, schools, health officials and all of us as recipients of healthcare in this country. Crucial opportunities to change tack on the use of infected blood products were missed, families’ trust was abused, and a cover-up of the highest magnitude ensued. Meanwhile thousands died needlessly and sadly, affected people continue to die every week.

“It is now time for the Government to make amends. They cannot bring back loved ones or cure the suffering of so many. However they should finally acknowledge the extent of what went on and apologize properly – the victims of this scandal deserve nothing less. They have been fobbed off for too long. Full compensation to all victims of this scandal must also be forthcoming without further delay.   

“We look forward to reading Sir Brian Langstaff’s final report later this year. But it will hold few surprises. The Government must act responsibly in its wake, or face another Windrush.”

TOPIC: The UK’s fall down the Transparency International Corruption Index for 2022 reducing this country to its lowest ever position

COMMENT BY: John Binns, Partner at law firm BCL Solicitors

“The reality is that businesses and individuals are often judged on their associations with a country whose score on this list is low.

“This year, it’s particularly striking that the UK, which regularly berates other countries for their inadequacies in combating corruption, has had a few points docked from its score thanks to some high-profile scandals and allegations at or near the top of its political pecking order.

“The practical impact of this, in terms of perceived anti-money-laundering risks of UK businesses, is unlikely to be huge -although, especially now, we cannot afford to be complacent about their prospects. For AML professionals the list is almost too useful, a ready shorthand for risk-assessing customers and deals. This is despite Transparency International’s own proper caution in stressing, each year, that it is about perceptions of corruption rather than hard data.”

“Meanwhile though, it does send a big political message from Transparency International to give the UK a taste of its own anti-money laundering medicine.”

CONTRIBUTED ARTICLE OF THE WEEK

Family Courts and the Media by Julian Hayes

The recent Ministry of Justice pilot scheme opened in Leeds, Cardiff, and Carlisle Family Courts permitting the media to apply for Transparency Orders to report on cases in family proceedings.

These appear to have been met with some trepidation by many family practitioners; and naturally much of the concern relates to maintaining the anonymity of the child or children, although I also suspect that many of those also shudder at the prospect of having their advocacy skills and case preparation put under scrutiny.

History was made when the first Transparency Orders were made by Mr Justice Poole sitting in Leeds last week for fact finding hearings in three cases concerning allegations that the mother in each family ‘fabricated or induced illness in one child of each family’

Having conducted cases in the family courts for over 30 years (and yes I am old enough to have dealt with cases pre Children Act 1989!!!) I am wholly in favour of the family courts opening their doors to greater public scrutiny. Whilst it would be hoped by the MoJ to instil public confidence in a system that has in recent years attracted significant criticism for its lack of transparency, I suspect that it will only serve to heighten public, professional and political disquiet at the failure of successive governments to invest adequately. The effect of this has been to reduce the number of court centres, to struggle to find judges and courts to hear cases and to increase the case waiting list. All of which has highlighted the dwindling number of child care lawyers undertaking such work due to the failure to raise legal aid fees that have not increased in almost 20 years. Likewise poor social work practice, again in most cases caused by a lack of funding, which has led to an unconscionable delay for children languishing in care.

This may ultimately prove to be more of rod for the government who may (through politically expediency) quietly shelve this initiative – thereby returning the family courts to the dark ages. Time will tell.

Julian Hayes is senior partner at Berris Law LLP (www.berrislaw.co.uk) and also the author of  Stonehouse – Cabinet minister, Fraudster, Spy  the biography of the politician John Stonehouse www.littlebrown.co.uk

LEGAL APPOINTMENTS OF THE WEEK

FARRER & CO

Farrer & Co, one of London’s most prestigious law firms with a unique client base, has today announced that Jeremy Gordon (left) has been elected as its new Senior Partner. He will take over from Anne-Marie Piper, who will be retiring from the firm, from the beginning of May.

Having joined the firm as a trainee in 1989 Gordon worked his way through the ranks as a leading expert in Contentious Trusts & Estates to become Head of the Disputes team. He has been involved in some of the highest-profile trusts disputes of recent years, and over the course of his career has worked in most of the leading trust jurisdictions, both onshore and offshore.

Commenting on Gordon’s election to Senior Partner, Anne-Marie Piper said, “I am delighted that Jeremy has been chosen as my successor. His appointment is testament both to the exceptional calibre of his work, and to his commitment to all of us at the firm. Jeremy brings experience, and the greatest commitment to the role and truly understands the special qualities which set Farrer & Co apart. The firm could not be in better hands.”

BROWN RUDNICK

Among eleven partnership promotions around the world at Brown Rudnick three women in London have made the grade.

Jessica Lee is a disputes lawyer with a particular focus on civil fraud and asset recovery actions, company and shareholder disputes, and crypto and blockchain matters. She is a Recommended Lawyer for commercial litigation and banking litigation and was named a Rising Star for civil fraud in The Legal 500 2023 having acted on a number of significant civil fraud matters, many of which have also involved advising on freezing, proprietary, and disclosure injunctions. She is also part of Brown Rudnick’s supervising solicitors team having acted on multiple search, delivery up and imaging orders.

Sage Revell is a corporate lawyer representing start-up phase, early-stage and emerging-growth companies and their investors. She specialises in cross-border deals, working with UK and US colleagues. She is listed as a Rising Star and Recommended Lawyer in The Legal 500 directory for Venture Capital and TMT. She was also recognized in The Best Lawyers in the United Kingdom ‘Ones to Watch’ 2023 edition for Life Sciences Law.  On 7 February, Sage will host a Women’s Health and Wellness Pitch event, which provides an opportunity for companies to present to a wide variety of investors, and for investors to meet leading companies in the Women’s Health and Wellness sector.

Eleni Zodiates is a finance lawyer in the Firm’s Special Situations Practice Group. As a generalist finance lawyer she has experience in a wide range of sophisticated, international financings, including corporate finance, special situations and direct lending, real estate finance, and asset-backed financings. She acts for private equity funds, hedge funds, real estate investment firms, developers, family offices and corporate borrowers, typically acting borrower-side or for direct lenders.

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