Edward Fennell’s LEGAL DIARY

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

April 12 2024

Editorial contact: fennell.edward@yahoo.com

Kathryn Stone OBE, the BSB Chair,
taking up complaints
‘The BSB vision is to regulate the Bar in the public interest by promoting high standard , equality and access to justice.”

Published today are the findings of a review by Fieldfisher of the Bar Standards Board’s complaints process. The verdict? It is good – but not good enough.

Like most everything else in British public life the shortcomings can be attributed in part to a case of ‘long Covid’.But underneath that are some fundamental concerns. So along with failing to meet process issues – such as time-based Key Performance Indicators – there are failings in management accountability and knowledge management. The result is that people who feel let down by their barristers are then left feeling let down by the system which is supposed to police them.

The added complication is that some (maybe many) complainants are making reports which, frankly, do not hold water. But who is to judge? The Post Office scandal has highlighted that lawyers cannot necessarily be trusted to do the right thing. We are not just up the creek without a paddle but maybe without a compass either.

The Legal Diarist

In this edition

– Get Listed for your Pro Bono Activity

– WFW Flies by it Principles

– ‘True and Fair’ Approach to Pollution

– More McCloud Cover for Whistle Blowers

on the law of apologies, Labour’s tax plans for non-pdoms, financial data breaches and no-fault divorce

at Edmonds Marshall McMahon and Quillon Law

Get Listed for your Pro Bono Activity

The inaugural Pro Bono Recognition List of England & Wales is now open for submissions from solicitors and barristers who want to be recognised for their contribution in providing pro bono legal help to those in need. Launched under the auspices of the Attorney General’s Pro Bono Committee it will be open to lawyers who have performed a minimum of 25 years of pro bono work in the previous calendar year. Other backers include the Law Society, the Bar Council and the major pro bono legal organisations.

“This initiative emphasises the commitment of the legal profession to the values of fairness and equality.” said Nick Emmerson, President of the Law Society, It is a unique opportunity to recognise all those lawyers who give their time to provide legal assistance to those who cannot afford it. Pro bono work is just one way of bridging the gap between needs and legal representation by empowering individuals who would otherwise be left vulnerable and voiceless to access justice. Pro bono has a profound impact on the lives of countless people and communities.”

The Recognition List will recognise pro bono legal work no matter which way it is provided whether on an ad hoc basis or via a small or large pro bono scheme. Exactly how it will be monitored remains to be seen but thePatron of the programme is the Lady Chief Justice of England and Wales, The Baroness Carr of Walton-on-the-Hill – so it’s probably in safe hands.

WFW Flies by it Principles

Talking of pro bono work we have to give full credit to  Watson Farley & Williams (“WFW”) for its work on the development and launch of the Pegasus Principles. These are part of a new initiative to enable banks to measure and disclose independently their aviation lending portfolios’ emissions via what is called a ‘first-of-its-kind framework’ devised in conjunction with RMI and a group of leading banks banks including BNP Paribas, Citi, Crédit Agricole CIB, Societe Generale and Standard Chartered. (NOTE: RMI is an independent non-profit that aims ‘to transforms global energy systems through market-driven solutions to align with a 1.5°C future and secure a clean, prosperous, zero-carbon future for all’).

The background to the project is simple. Currently the aviation industry contributes 2.5% of global CO2 emissions and is the fastest growing transportation sector worldwide. So decarbonising the aviation sector would be a significant step towards cleaning up the environment and reducing the threat from climate change.

The Pegasus Principles draw upon existing standards including those of the Science Based Targets initiative and the International Civil Aviation Organization’s Carbon Offsetting and Reduction Scheme for International Aviation. The framework is designed to be compatible with the Net-Zero Banking Alliance’s guidelines and they are based on the precedent set by the maritime sector’s Poseidon Principles (these had been created to help the maritime industry meet the International Maritime Organisation’s goal to reduce shipping’s total annual greenhouse gas emission by at least 50% by 2050).

“We are delighted to have lent our expertise to this initiative which will help the aviation industry in its drive towards decarbonisation,” said Patrick Moore WFW’s London Assets and Structured Finance Partner. “Our advice on the Pegasus Principles draws upon our extensive work on climate-aligned finance frameworks for other sectors, our ongoing advice to the Aviation Working Group on  ESG matters and the development of the AWG Carbon Calculator, and various sustainability-related transactions, such as Air France’s sustainability-linked JOLCOs, many of which have been recognised by industry awards for being first-of-their-kind.” 

So looks like they are ready for take-off.

True and Fair’ Approach to Pollution

All this talk about decarbonising leads inevitably to the ways in which business and government are increasingly being held to account for their actions over climate change by the law and regulation. The success of the retiree Swiss women at the European Court of Human Rights (ECHR) has been widely noted but there are also indications that enterprises’ contribution to climate change might well need to be highlighted in their financial statements.

This at least is the legal opinion, commissioned by Social Value International (SVI), from barrister George Bompas KC. An inaugural roundtable on the matter – convened by (SVI) and Social Value UK – was held at the end of last month for business networks and legal and financial experts to discuss the implications of the Bompas advice. Participants, including a former Governor of the Bank of England Mervyn King, leading UK business networks, such as the British Chambers of Commerce, Federation of Small Businesses, and the Institute of Directors, all collaborated to explore the implications of the legal opinion on the ‘true and fair’ requirement for company directors to include sustainability issues in their financial statements.

Subsequent to the discussions SVI and SVUK announced plans to collaborate in raising awareness about the legal opinion and its implications. They say they will develop guidance for company directors on the relationship between true and fair requirements, accounting standards, and sustainability. Additionally, they will provide training and technical support to companies seeking to incorporate sustainability issues in their financial statements.

Linking this opinion to directors’ responsibilities to consider their business impact and dependency on nature, Jenni Ramos from the Commonwealth Climate and Law Initiative, said, “This legal opinion could be a game-changer for biodiversity. Companies must integrate sustainability issues into their financial statements when they consider them relevant to provide a ‘true and fair view’ of the company’s financial position.”

More McCloud Cover for Whistle Blowers

The issue of how UK society treats whistle-blowers should be a matter of a national shame. The NHS has a particularly poor record in this respect (as illustrated by the front page story in The Times this morning). Most notoriously, colleagues of the maternity nurse Lucy Letby were forced into humiliating apologies for having whistle-blown on their suspicions of her conduct. (And why were there almost no whistle-blowers employed by the Post Office during their scandalous treatment of the Sub-Postmasters? Probably because they knew they would be left hung out to dry).

So it is good to report that Dr Victoria McCloud (pictured above), a former senior judge and High Court Master, is joining Gatehouse Chambers as an Associate Member to support the set as it grows its profile in internal investigations and whistleblowing cases.

McCloud brings expertise from her role as an advisor to the All Party Parliamentary Group on Whistleblowing via its secretariat, Whistleblowers UK so will add significant additional strength and breadth to Gatehouse Chambers’ profile in these areas.

“We are thrilled to have Victoria join us as an Associate Member following her highly successful career as a judge,” said Amanda Illing, Chief Executive of Gatehouse Chambers, Her experience and focus on quasi-judicial investigations will be an invaluable benefit as we continue to grow instructions in high-profile internal investigations and whistleblowing cases.”

Meanwhile McCloud added, “There is increasing demand for expertise in internal investigations and whistleblowing, both due to a heightened regulatory environment and in response to many high-profile investigations that are making front page news. As I re-enter the legal sector as a non-practising Barrister, I look forward to helping Gatehouse Chambers grow its profile in these areas.”

More power to her elbow and to all those who see abuse taking place and have the courage to call it out.

TOPIC: The Government’s current consultation on how to improve the ‘law of apologies’ in the Compensation Act 2006 (designed to enable organisations to apologise without admitting liability).

COMMENT BY: Alan Collins, partner in the sex abuse team, Hugh James

 “Saying “sorry” can mean everything to a victim of crime, but its value lies in the depth of the contrition. A hollow apology can be an insult, or if merely an expression of regret, will lack that expected candour.

 Whilst it is right for the government to consult on the question (as I see it of the beefing up of apologies) it is missing the point. Survivors want accountability and that is often what is missing from the justice system and society generally. We see time and again after a scandal a complete absence of accountability on the part of those who were responsible for the system or situation that enabled the abuse to take place. That is what the politicians should be focusing on.

In my experience of representing survivors of sexual abuse, while an apology can be cathartic for some, for other it isn’t. What survivors are looking for, I find, is accountability. An apology could, for a victim, be seen as accountability, but it has to be more than acknowledgement of the harm or, as if often seen, an expression of regret.

Bizarrely, in the Crime and Prisoners Bill currently before Parliament – which is designed to give victims of crime greater purchase in the criminal justice system – accountability is excluded. If a victim is not afforded the rights that the bill is designed to give them, then the individual concerned will not be accountable.

Until there is true accountability in the justice system for victims and survivors, I am not convinced that apologies are going to make things right”.

 TOPIC: The Labour Party’s commitment to raise £2.6 billion a year over the course of the next parliament by closing “loopholes” in the government’s plans to abolish exemptions for people who are not domiciled in the UK for tax purposes.

COMMENT BY: Basil Dixon, Partner at Payne Hicks Beach 

“It is perhaps no surprise to see the Labour Party start to pick holes in the non-dom plans announced at the Spring Budget but recent comments create a level of uncertainty that many will find disappointing. In contrast to the pejorative language used by the Shadow Chancellor, the vast majority of individuals who are taxed under the current regime for non-domiciliaries simply want to follow the law and to be able to plan properly and appropriately. Imprecise statements and political pot shots are helpful to no one and for a party that claims to be a Government in waiting it would not be unreasonable to expect sensible comment and detailed explanation of likely tax policy.

As things stand, it is difficult to draw any conclusion other than that a Labour Government would look to tighten any new non-dom regime (possibly significantly) – the inheritance tax treatment of offshore trusts settled before April 2025 and the one-year 50% income tax discount on offer for some individuals seem to be the subject of particular attention – and this is another factor that taxpayers are going to have to factor into their considerations as they look to plan in an environment of great political and fiscal uncertainty.”

TOPIC: The dramatic increase in the number of financial data breaches

COMMENT BY: Jon Baines, Senior Data Protection Specialist, Mishcon de Reya

“Official figures from the Information Commissioner’s Office suggest that there was an 8000% increase in the number of people affected by financial data breaches in central government between 2019 and 2023.

“This means that, in a single calendar year, every single person in the country’s rights and freedoms were put at likely risk almost three times, on average, by a government breach of data security. It’s an extraordinary figure and suggests that we might be seeing a crisis in data security in central government.

 “Indeed, we have seen some huge, and catastrophic, data security breaches in recent months. For example, the compromise of the England and Wales electoral register, and ransomware incidents involving the British Library and a number of other UK public authorities.

“The Information Commissioner John Edwards was only recently reported as saying that his policy of not fining the public sector but instead issuing non-binding reprimands was ‘very effective, especially in the public sector where reputation is worth more than the purse’.

“On the contrary, the evidence in fact points rather starkly the opposite way. Since his softer-touch approach for public authorities was adopted, it appears that data security failings at least in central government have skyrocketed.

“These figures are buried away in a freedom of information disclosure by the ICO: they were not proactively published, there appears to be no explanation for the enormity of the issue, and nor does there seem to be any transparency within central government about how such security issues are happening and what is being done about them.

“The evidence points to a pressing need for government to get its house in order, and for the ICO to take a fresh look at whether there is a need for more robust enforcement in the public sector.”

 
TOPIC: Reflecting on the second anniversary of the introduction of no fault divorce on 6 April, 

COMMENT BY: Nick Gova, partner and head of family, Spector Constant & Williams

By removing the need to apportion blame at the start of the process, no fault divorce has taken the heat and conflict out of many divorces. It has also helped couples to start constructive discussions about children and finances earlier on in the process. Couples are also making use of the ability to make a joint divorce application, with 61.1% of divorces under the new law made as joint applications.

Some commentators had expected an increase in divorces following the introduction of no fault divorce but the latest statistics for 2022 show that the divorce rate fell to the lowest level since 1971. A major factor in the drop in divorces is the impact of the cost of living crisis and worries about the financial impact of divorce and selling the family home.

No fault divorce was the biggest change to family law in a generation, but there is still a long way for family law to go to catch up with the reality of modern families. In particular, co-habiting couples don’t receive the same protections as married couples, which can lead to very unfair outcomes if they split up, particularly for the partner who may earn less.”

TOPIC: The new right to request flexible working 

COMMENT BY: Henry Clinton-Davis, UK employment law team,partner, Arnold & Porter

Time will tell if making flexibleworking requests a day one right, is a welcome development or not. For some employers, it may be quite disruptive to have a new employee, whom they don’t yet know, seeking to work in a completely different way from how they had envisaged when they advertised the role.

“For others, however, it may be a useful opportunity for a grown-up conversation early on about different ways of working, that the employer may not have considered. This is likely to prove particularly beneficial for disabled employees and employees with child care responsibilities.”

EDMONDS MARSHALL McMAHON

Satnam Tumani, the former Head of Bribery and Corruption at the Serious Fraud Office (where he had a career lasting 18 years)has been appointed as partner at Edmonds Marshall McMahon, the UK’s first and only specialist private prosecution law firm.

Following his departure from the SFO Tumani was a senior partner at a large international law firm setting up and leading its UK white collar crime practice. There his experience extended across fraud and corruption prosecutions, internal and external investigations for public companies, regulatory authority matters, public inquiries and high-level defence strategies for senior executives. 

Tumani has been recognised by the major legal directories in respect of white collar and investigations matters, including in the Legal 500 Hall of Fame and has held numerous white collar crime thought leadership roles, for example as a member of the Law Society’s Money Laundering Taskforce, the City of London Law Society’s Corporate Crime & Corruption Committee and the editorial boards of both PLC and LexisNexis. 

“Satnam’s exceptional track record, coupled with his innovative approach to legal challenges, will enhance our firm’s capabilities and reinforce our position as pioneers in private prosecution and complex legal cases,” commented Tamlyn Edmonds, founding partner of Edmonds Marshall McMahon.

QUILLON LAW

James Clark, the fraud and sanctions specialist, has been promoted to Partner at the litigation boutique firm Quillon Law. With a decade of experience as a commercial litigator and having joined the firm two years ago as a Managing Associate, Clark has particular expertise in obtaining and resisting interim remedies such as worldwide freezing injunctions and asset disclosure orders. His appointment brings the firm’s partnership to a total of five.

James originally joined the firm in March 2022 having had over 10 years’ experience acting in complex high-value commercial disputes, with an emphasis on civil fraud matters. His expertise also includes financial markets disputes and sanctions and as a fluent Spanish speaker with a particular interest in the Latin American market, his cases have often involved a cross-border element.

“James is a truly exceptional litigator, and we are delighted to welcome him to our partnership,” said Partner Mark Hastings. “His experience and tenacity has proved to be a true asset to the Firm and he is an integral part of our team; his expertise has been invaluable on several of our most significant cases.”