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

March 17th 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Law Firms as Activists

With the rise of ESG sensibilities law firms are getting into their stride as active supporters of a growing number of causes. Having been somewhat slow initially to come to the table over LGBT+ issues they have become the most prominent proponents. But now the net is being thrown wider. We report below on CMS becoming the first law firm to join the Carbon Call movement and there is also news this week that Cripps is forming a partnership with WealthiHer, a network that includes J.P.Morgan, Kleinwort Hambros and other elite businesses to offer women the ‘knowledge, tools and confidence they need to manage and grow their own wealth’. Mischcon de Reya is the only other law firm in the network.

Back in the day, partners in law firms would be known by the clubs they joined. Increasingly. firms will be understood by the networks they actively support. They will be questioned about it by the most able job candidates – as well, no doubt. by potential clients. They need to have an answer – and why.

The LegalDiarist  

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– CMS responds to the Carbon Call

– Waiting for an Employment Tribunal? Join the Queue

– Another Click Upwards for Legal Technology

– End of Innocence for Cylists

– Bikers Back to Back Breast Cancer Research

+ CONTRIBUTED ARTICLE OF THE WEEK

How Eversheds Sutherland won ESG Initiative of the Year at this year’s ‘Women, Influence & Power in Law’ UK Awards by Judith Green

+ LEGAL COMMENTS OF THE WEEK on the ground-breaking decision by the Bar Council of India, the collapse of the Silicon Valley Bank, the Pension Lifetime Allowance, CGT and married couples, a case of fraud.

+ APPOINTMENTS OF THE WEEK at Serle Court and Bermans

+ LEGAL DIARY OF THE WEEK

CMS responds to the Carbon Call

CMS UK has become the first law firm to become a member of the Carbon Call group of organisations backing moves to improve measurement, reporting and verification of Green House Gas (GHG) emissions and removal.

Although there are a number of accountancy and consultancy organisations among the founders and members CMS stands out for the legal sector.

Carbon Call’s goal is to  is mobilizing collective action, investment, and resources to strengthen GHG accounting to make it more reliable and interoperable for the planet. 

“As a future-facing law firm, we are committed to addressing our impact on the environment,” said Barbara Mendler, Managing Director Strategic Projects & Operations, CMS UK. We have have publicly committed to near term science-based targets and report our full scope of emissions on an annual basis to monitor progress. We believe in being transparent, accountable, and auditable to our staff, suppliers, and clients. We are pleased to join other esteemed Carbon Call members in collectively advancing reliable emissions accounting and reporting.”

The firm points out that sustainability is one of its central and strategic priorities. It was one of the first major law firms to commit to set Science Based Targets – and that was five years ago. “Now approved, the near-term targets focus on 30%-reduction of emissions by 2025 and 50%-reduction by 2030 for our own operations, as well as for our supply chain,” CMS says. “The firm will also look to offset remaining emissions to go carbon neutral by 2025 and has introduced a programme of over 20 workstreams to address climate change.”

The firm’s A- rating by the Carbon Disclosure Projects (CDP) is well above the C rating which is the average for most law firms.

Waiting for an Employment Tribunal? Join the Queue

It’s not just individual patients who are suffering from Long Covid. It seems as if the whole of British society is stuck in a malaise of backlogs which cannot be escaped.  So another figure to loom this week is the number of employees whose lives are on hold due to a crisis in the employment tribunal system. Figures just released show that there are 475,004 claims awaiting first employment tribunal hearing and a backlog of single claims outstanding having increased by 8% during 2022.

“Tribunal hearings were inevitably impacted by the pandemic, but the latest data points to much deeper issues,” said David Haynes, Underwriting Director at ARAG. “The number of single cases outstanding is the highest on record going back to 2008, roughly double what it was then, and 8% higher than it was this time last year.”

Last month, in response to a question in Parliament, the Ministry of Justice published data showing that the average waiting time between receipt of an employment tribunal claim and the first hearing had risen from 30 weeks in 2011 to 49 weeks at the end of March 2021.

“The situation is as intolerable for businesses at it is for the employees waiting for their cases to be heard,” said Haynes. “We’re still seeing cases wait a year to reach even a preliminary hearing, leaving both parties in limbo. Over such a long time, costs increase, recollections fade and satisfactory outcomes can be jeopardised.”

Another Click Upwards for Legal Technology

The technological imperative in the legal sector seems to be ever more intense with the announcement that LawtechUK, a government-backed initiative to support the transformation of the UK legal sector through technology, is to be taken over by a consortium made up of CodeBase and Legal Geek. Quite how many ripples this will create in the lives of lawyers working thorough day-to-day transactions is not clear but is likely to be considerable in the long term.

“The UK is a world leader in delivering legal services and expertise, and our ongoing investment in new technologies will make sure we are continuing to lead the way in advances and new ways of working,” commented Mike Freer, Justice Minister. “CodeBase and Legal Geek bring a wealth of experience and knowledge of LawtechUK that will nurture new, cutting-edge innovation in the UK.”

The LawtechUK brand will not be affected by the change in operation. “We are over the moon to have secured the contract with the Ministry of Justice to bring the LawtechUK programme to life,” said Stephen Coleman OBE, the CEO of CodeBase. “Together with our delivery partners Legal Geek, who are renowned for delivering top-tier legal events, we are eager to push the boundaries of innovation and transformation in the legal industry. We truly believe that LawtechUK will have a significant impact on the future of the legal sector, and we feel privileged to be leading the charge in this endeavour.”

Meanwhile LawtechUK Director, Alexandra Lennox was bullish. “Since its inception, LawtechUK has solidified the UK as a global hub for lawtech, admired by many countries,” she said. “With a new focus on supporting the development of technology that addresses unmet legal needs, there is still work to be done to harness lawtech’s full potential for the benefit of society and the economy.”

Sounds too good to be true? It would be cheeky to ask.

Read more and comment on Linkedin.

End of Innocence for Cyclists

“When the spirits are low, when the day appears dark, when work becomes monotonous when hope hardly seems worth having, just mount a bicycle and go out for a spin down the road, without thought on anything but the ride you are taking.” Thus said, apparently, Conan Doyle – stuck no doubt on the next turn in the plot of The Speckled Band.

Sadly such a simple solution to life’s problems is no longer available to the residents of Bournemouth, Christchurch and Poole who have been thrown off-balance by the local council deciding to allow cars down what had been a safeway for local riders known as Keyhole Bridge. Cycling UK has now decided to get involved by going tandem with Leigh Day in a judicial review against Bournemouth, Christchurch and Poole Council (BCP).

“Statutory guidance says that schemes such as the closure of Keyhole Bridge to motor vehicles should be retained unless there is substantial evidence to the contrary,” said Leigh Day solicitor Rowan Smith. “We are confident that the Court will agree and allow Cycling UK’s claim for judicial review.”

This little local crisis, however, seems to be part of increasing litigiousness and, indeed, criminality in the previously tranquil world of cycling. The recent gaoling of the disabled woman Auriol Grey for causing the death of cyclist Celia Ward by waving her arms in a threatening way is a sign of things to come. Meanwhile a friend of the LegalDiarist recently suffered a frightful accident due to a hole in the road. He is planning to sue. Biking law might well be on course to become a whole new and distinct specialism. Conan Doyle would have wept.

 Bikers Back to Back Breast Cancer Research

On a happier note for bicycling lawyers the date has been announced  for this year’s Tour de Law, the legal sector’s annual contribution to fund-raising for people affected by breast cancer. The dates to put in your diary are Wednesday 11 to Thursday 12 October. And even lawyers from the Bournemouth area can merrily take part as the whole event takes place on static bikes provided by Breast Cancer Now, with chambers and law firms having from 8am on the Wednesday until 4:30pm on Thursday to clock up as many kilometres as possible.  

Up for grabs is the much-contested and highly coveted Tour de Law trophy. The teams that cycle the furthest and raise the most to support Breast Cancer Now’s research and support services will be awarded with a certificate in recognition of their dedication and generosity. The event has also got the backing of corproarte giant INEOS.

“We’re passionate about sport at INEOS, so we are happy to support Tour de Law, a fun event which creates some healthy competition amongst our legal colleagues while raising vital funds for life-changing breast cancer research and support,” commented Jonny Ginns, INEOS General Counsel. “It’s great to see more and more companies getting involved in this event each year and to have the opportunity to be the proud custodians of the INEOS Grenadiers jersey as well as bragging rights for the next 12 months.  Good luck to all those taking part this year; may the best team win!” 

For further information, please contact Goody at tourdelaw@breastcancernow.org.

+ CONTRIBUTED ARTICLE OF THE WEEK

How Eversheds Sutherland won ESG Initiative of the Year at this year’s ‘Women, Influence & Power in Law’ UK Awards

by Judith Green

It’s a truth universally accepted, by those of us charged with leading our firm’s internal Responsible Business or ESG programmes, that it really does take a village.  Acting responsibly as a business, building trust with multiple stakeholders across a myriad of areas of operation is an enormous task and it’s definitely too big for just one person but putting responsible business at the heart of our 2023 strategy, and the personal support of our CEO, has made a huge difference in our ability to get this done.  My name might be on the trophy, but this was definitely an award for our whole ESG ‘village’ at Eversheds Sutherland. 

I won the award for spearheading the launch of our Responsible Business programme and for various initiatives which we have undertaken to communicate and embed it, and for certain of the standout successes that we have delivered including increasing our pro bono hour by 10 times in a 12 month period, energetically driven by our first dedicated Pro Bono lawyer and the introduction of a chargeable hours allowance for such work.

Other successes included our first firmwide Environmental Challenge which saw many thousands of our people pledging to reduce their personal carbon footprint by making small but impactful changes to their daily habits.  Working with a fantastic organisation called Do Nation, teams competed to top the leader board (never underestimate the power of a little bit of healthy competition in a law firm) and together we saved enough carbon to power a car to circumnavigate the world 12 times. 

For me, a real landmark moment was when our partners unanimously voted to commit a minimum of 1% of our operating net profit each year towards our Responsible Business programme, becoming the first major law firm to make this formal commitment. This is now written in to our Member’s Agreement, along with a requirement for the firm to have a Responsible Business policy covering our commitments to our people, the environment, our communities and our approach to governance and ethics. Formalising our investment approach for the long-term in this way is fantastic to see, and it is great to have this driven by the partnership.

Watch this space for what’s next!

For more on the WIPL Awards go to: https://www.event.law.com/international-edition-wipl-uk-awards

Judith Green is Chief Strategy & Communications Officer, Eversheds Sutherland

+ LEGAL COMMENT OF THE WEEK

TOPIC: The decision by the Bar Council of India to allow foreign lawyers and firms to practise foreign law in India, including acting in international arbitrations.

COMMENT BY:  Kartik Mittal, Partner at Zaiwalla & Co a member of The Law Society’s India Working Group which contributed to this development.

“This is a huge opportunity for the London arbitration sector as it paves the way for UK law firms/lawyers to represent their non-Indian clients in international arbitrations conducted in India.

“This is a welcome development and will help India fulfil its dream of becoming an International Arbitration hub.

“Both the UK and Indian legal sector will immensely benefit from this move. It will provide UK lawyers access, albeit in some areas, to the excellent opportunities that the Indian market provides and make international legal services more accessible to Indian clients.”

COMMENT BY: Mythily Katsaris, Partner and India Desk lead at Fladgate LLP

“The new rules do not address the point on exclusive tie-up’s between Foreign firms and Indian firms, with each practicing their respective laws. I would hope that the Bar Council of India clarifies this point soon.

The Bar Council of India has permitted foreign lawyers to practice foreign law in India in non-litigious matters only, subject to compliance with BCI’s Rules and registration requirements.  However, appearing in Indian courts, and advising on real estate matters in India, has been specifically excluded.

However, foreign lawyers who do not want to practice law in India under the new rules can continue to advise on a ‘fly in and fly out basis’, provided their practice does not exceed 60 days in any period of 12 months. Overseas investors investing in India will have the comfort of working with their overseas lawyers if they are on the ground, in India.”

TOPIC: The collapse of  Silicon Valley Bank

COMMENT BY: Charles Fletcher, Partner at Mishcon de Reya

“The collapse of Silicon Valley Bank – and subsequent rescue of the UK arm by HSBC – has important lessons for any start-up. 

 Emerging tech companies are vital for the nation’s continued economic prosperity. We work with businesses from across the emerging company and venture capital community. In our experience, there are simple, practical steps to financial management that businesses can take to minimise the uncertainty and stress many have experienced over the weekend.

Key actions include keeping corporate accounts with more than one bank, having an emergency funding plan to avoid cashflow squeezes, separating funds from different sources and taking a strategic approach to managing currencies. These should accompany fundamental business planning and management steps, such as a detailed risk register and crisis management protocols.”

 TOPIC: This week’s Budget announcements regarding the Pensions Lifetime Allowance and Capital Allowances package

COMMENT BY: Neal Todd, Head of Tax at Fladgate LLP

“The chancellor says this was the Budget of the five “E”s – but at a time when the office of simplification is being abolished, taxpayers would have welcomed an “S” for simplification.

“The abolition of the pensions lifetime allowance is a welcome simplification to the tax system. However given that the current rules were introduced within the last decade one has to hope that this will be the end of changes to the pensions rules. Decisions on whether or not to save into a pension should be made in the confidence that the current rules will continue to apply for the foreseeable future.

“The enhanced capital allowances package for business will be welcomed by companies looking to invest into the UK with it perhaps a recognition that the headline rate of 25 per cent already announced went slightly too far.”

TOPIC: The changes, announced this week, to capital gains tax changes that will impact separating married couples and separating couples in a civil partnership.    https://www.gov.uk/government/publications/capital-gains-tax-transfer-of-assets-between-spouses-and-civil-partners-in-the-process-of-separating/capital-gains-tax-separation-and-divorce

COMMENT BY: Vanessa Gardiner a family partner at RWK Goodman

“Some may be surprised to learn that divorcing couples are not exempt from paying Capital Gains Tax (CGT) when implementing financial agreements in divorce. 

The new CGT rule changes coming into effect will be beneficial for divorcing couples with assets or property which will be subject to CGT.  The new rules will provide them with a longer time frame to negotiate settlements before CGT arises in certain circumstances and a longer time period to pay the tax once the gain arises. 

These are welcome changes bringing the CGT rules socially up to date with the reality for separating couples, taking off the pressure and taking a realistic approach to the affordability of tax after separation.”

COMMENT BY: Jenny Dodds, a family solicitor at Debenhams Ottaway

“This is a positive change for divorcing and separating couples for who will welcome the additional time to make and implement key decisions on how to split key financial assets such as the marital home. In circumstances where one party retains an interest in the marital home after moving out, they will also have the option to claim private residence relief when it is sold. This applies even when a sale take places many years later, providing more options for separating couples. 

Overall, the change will ease financial pressures and help reduce stress at what is often a difficult time for most couples.”

TOPIC: The hire as a fee-earner by law firm Harwood of Wasim Khan, who had a previously known criminal record and who went on to defraud the firm and a key client, the insurer Aviva, of £20K+. Harwood have now been found liable for losses, damages and costs incurred by Aviva.

COMMENT BY:

Alex Wilkinson, Partner and head of the Technical Fraud Team at HF which advised Aviva. 

“It was staggering to see that a firm of solicitors would seemingly have such poor processes in place when recruiting staff.  I’m pleased to see the court found them responsible for Khan’s actions. This result should stand as a warning to other employers to ensure their recruitment and vetting processes are fit for purpose.”

Carl Mather, Manager, UKGI Special Investigations Unit of Aviva.

“While very satisfied with this judgement Aviva is also disappointed that it had to take this action against another regulated professional.  Harwood created a rod for their own back by refusing to accept responsibility for the actions of an employee acting in the normal course of their duties and in addition to being ordered to pay Aviva’s claim in full, they are now also left with legal costs. The outcome is another example of Aviva’s…determination to use all means at our disposal to mitigate the impact of fraud losses on policy premiums, especially at a time when real economic hardship is being faced by many people in the UK.”

+ APPOINTMENTS OF THE WEEK

SERLE COURT

Sparsh Garg  a Commercial Chancery barrister, has joined Serle Court.

Called to the Bar in 2017 Garg is regularly instructed as sole counsel or as part of a larger counsel team in both English and international litigation/arbitral proceedings. He has acquired considerable experience in the offshore and international sphere acting or advising in relation to disputes before the English High Court, as well as matters in Gibraltar, The Bahamas, Bermuda, BVI, Cayman Islands, the DIFC, Guernsey, Jersey, and in LCIA/LMAA arbitrations.

Garg has a particular focus on trusts and estates litigation, company and insolvency, civil fraud and commercial disputes. He has now appeared twice in the Privy Council, acting for the appellant in Chu v Lau [2020] 1 WLR 4656 (led by Philip Jones KC), and more recently for the appellants in Perry v Lopag. On the domestic front, Sparsh acted for the successful respondent in Tatishev v Zimmerz Management LP [2022] BPIR 606, concerning an application to set aside a statutory demand on the grounds of common mistake and misrepresentation. He is currently instructed on large matters before the courts of England, Gibraltar and Jersey.

BERMANS

Jon Davage has been appointed as the first managing director of Bermans, the Liverpool and Manchester commercial law firm which is now part of the Wirral-based MAPD (‘Making A Positive Difference’) Group.

Prior to joining Bermans in January 2012 Davage had been with Manchester commercial firm, LLM and Turner Parkinson (now part of Knights plc.) Over the past ten years he has been instrumental in driving the expansion of Bermans in Manchester into a full commercial and corporate offering.

“I am delighted and extremely proud to lead the next stage of Bermans’ evolution,” says Davage. “ I do so with the backing of a hugely engaged board and highly talented individuals across the business.” Davage will maintain his role as head of corporate law and will remain involved in corporate transactions. He will also take overall responsibility for driving the firm’s growth, working closely with partners, Fergal O’Cleirigh and Phil Farrelly, and Brian Cullen and Joanna Kingston-Davies, who form the Bermans board.

“The Bermans business is on an exciting journey, and MAPD is fully committed to being part of helping it, its people and clients succeed,” said Joanna Kingston-Davies, COO of MAPD.

+ E- VENTS

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If so, please circulate to colleagues.

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fennell.edward@yahoo.com