Edward Fennell’s LEGAL DIARY

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

March 24 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK The End is Almost Nigh

It seems as if this week was Boris Johnson’s last at the Top Table. From now on it’s just going to be the mopping up. But legally it’s not been a good week for Team Boris generally.

The Big Dog scored multiple own goals when accounting for his conduct before his peers – most notably when he observed vis-a-vis the infamous Lee Cain farewell party that, ‘It’s usual in this country to get together for a few drinks when someone leaves’. Well, by contrast, a very senior partner at a very important London firm was obliged during lock-down to conclude his decades-long career without even a farewell cup of tea. None of the usual rituals for him – because that’s what Boris Johnson’s rules required. Those who respected the law followed it.

Meanwhile the appearance of Johnson’s tip-top legal advisor Lord Pannick KC attracted a withering letter in The Times yesterday from Moreton-in-Marsh’s Lady Williams.Those watching the proceedings on TV might… have been surprised (as I have been) by the demeanour (grimaces, raised eyebrows and mocking laughter) of such an experienced and distinguished counsel, in full view of the cameras,” she said of the noble Lord. Or was he just covering his discomfort at his own client? Whatever, it seemed to mark the end of an era.

The LegalDiarist

In this week’s edition:

+ LEGAL DIARY OF THE WEEK

– Education is its own award

– Only Way Out of Essex

– Need a Whip-round for Lawyers?

– Lawyers are a Dog’s Best Friend

+ CONTRIBUTED ARTICLES OF THE WEEK

– WITH THE NUMBER OF DEEP FAKES ONLY GROWING, COULD THE LAW TURN THE TIDE? asks Oliver Lock

– THE LESSONS OF THE RICIN CASE of 2003 by Julian Hayes

– LEGAL COMMENT OF THE WEEK on the proposal to make mediation mandatory for separating couples and the Matrimonial Causes Act

+ LEGAL APPOINTMENTS OF THE WEEK at Hunters Law and Sidley Austin

LEGAL DIARY OF THE WEEK

Education is its own award

Proving that you are top of the class


The ‘Legal’ finalists have just been announced for this year’s EducationInvestor Awards – and the runners-and-riders are a pretty impressive group.

The dedicated legal awards – ‘Legal Advisor – Deal Making’ and ‘Legal Advisor – To Education institutions’ sit in an archipelago of educational finance, digital and publishing etc. reflecting what a big commercial business education has now become. Underlining this the short list are not niche practitioners (as the Legal Diary’s Editor had anticipated) but big mainstream names Clyde & Co, Pinsent Masons, Eversheds Sutherland, Burges Salmon, Bevan Brittan and so on.

Among these, Burges Salmon comments that it is ‘Pleased to have been shortlisted once again in the ‘Legal Advisor of the Year – Deal-making’ category’ (‘Pleased’? Surely they should have been dancing around the playground pulling funny faces). “To be named as an EducationInvestor 2023 finalist is great and reflects another busy year for deals in the education sector,” says Tim Roberts, a director in the firm’s Corporate team.

Most recently, comments the firm, it has advised the shareholders of The Safeguarding Company on its acquisition by Tes, an international provider of digital solutions to schools. ‘These deals build on the teams longstanding and extensive experience in the sector,’ it comments. Tes, of course, has been in the news recently for making available some rather interesting material for health and sexual education purposes. Or as the headline in The Times put it, TES sex education lesson plans include pro-life and polyamory’. Well no doubt the Safeguarding Company can take care of that.

Only Way Out of Essex

Tracey Dickens – leading the charge into London

One daffodil doesn’t make a Spring – as this Spring certainly demonstrates – but there may be some wider significance in the decision of a predominantly Essex law firm – Birkett Long LLP – to open a new office in London.

Well-known in  BasildonChelmsford and Colchester, one might have thought that was perfectly adequate in this age of working from home, four day weeks and contracting (not expanding) floor space. But no, Birkett Long has seen that this is the right time to hit the glitz of Devonshire Place near Liverpool Street Station.Through this growth, Birkett Long aims to make its diverse range of services more accessible and believes that the new London office will enable them to connect more readily and flexibly with their ever-evolving client base,” says Tracey Dickens, Partner and Head of the firm’s Commercial Department. “We have the expertise and experience to advise businesses in a cost-effective way compared to other entirely London-based or regional firms. We have a lot to offer and cannot wait to work with more businesses in London and beyond.”

No doubt this will be music to the ears of the CityUK and others who are keen to promote the idea that London is still the place to be. In a previous period, going to the City – in the style of Eversheds, Pinsents, Hammond Suddards, Wragges – was a mighty rite of passage for a regional law firm. Maybe we are now seeing the start of that vision being re-created.

www.birkettlong.co.uk

Need a Whip-round for Lawyers?

 For those who have followed with horrified fascination the long-running saga of reforms to the ‘Whiplash’ regime the latest twist in the tale confirms that we still have many episodes to go. If it were a box-set it would now be filling up several shelves in your elegantly-furnished TV room.

The focus now is on the Official Injury Claims (OIC) portal which, according to latest reports, the majority of CILEX (the Chartered Institute of Legal Executives) members believe is “not user-friendly.”

But that is far from all. Responding to the Justice Committee’s call for evidence on the impact of the reforms, CILEX said that access to justice for those making injury claims is potentially restricted – so much so, in fact, that they should be provided with legal advice. That sounds pretty damning given that the aim was for ‘do-it-yourself’ justice. In reality, however, more than 90% of applicants now choose to use a lawyer to assist them.

So, good for lawyers at least? Not at all. “The economics of system, with no costs recovery – meaning clients have to pay lawyers out of their damages – which explains why small and medium-sized law firms are dropping out of the whiplash claims market, as the work becomes less financially viable,” comments CILEX. In other words the whole thing is a complete pain in the neck.

Lawyers are a Dog’s Best Friend

 Now here’s a heart-warming story which shows how lawyers are often on the side of the good guys – and indeed they couldn’t do ‘Good’ without the lawyers by their side.

Gloucester City Homes (GCH) called in Clarke Willmott LLP when they wanted to purchase a property which would offers accommodation not just to homeless people but to their dogs as well.The transaction was to buy Citadel House in Stroud, Gloucestershire. It would be financed by a grant from Stroud District Council and it would provide homes for up to eight individuals – plus doggy companions.

“It was a privilege to support GCH in its commitment to provide high quality housing for people who find themselves without a home,” commented Clare Gregory, commercial property partner at Clarke Willmott. “The project will provide a temporary haven for people and their dogs at risk of having nowhere secure to sleep while they find a more permanent place to live. There is a significant need for one-bedroom properties to rent in the area and GCH is working with local support networks including Stroud District Council to meet that need.”  

A recent survey by the Dogs Trust reported 70 per cent of professionals supporting homeless people said clients had experienced barriers accessing homelessness services because they have a dog. So there’s been a big ‘Woof!’ all round for Clarke Willmott. 

CONTRIBUTED ARTICLES OF THE WEEK

WITH THE NUMBER OF DEEPFAKES ONLY GROWING, COULD THE LAW TURN THE TIDE? asks Oliver Lock

Oliver Lock

‘Deepfake’ may already be a contender for the 2023 word of the year. The technology, which uses AI algorithms to generate fake (but realistic) footage, has become notorious. While it has legitimate uses, illegitimate use can have profound implications as high profile individuals from world leaders such as Barack Obama to actors including Scarlett Johansson can attest (not to mention the image of Donald Trump in a fictionalised brawl in The Times this morning!)

English law provides a range of options to tackle deepfakes, although their effectiveness is uncertain.

Defamation

England’s libel laws may be a useful tool where a deepfake depicts a victim saying or doing something that has caused, or is likely to cause, that person serious harm to their reputation (e.g. a video in which the subject purportedly admits to criminal activity). The ‘meaning’ of the allegation in the video, taken as a whole, will be material here, and if the reasonable viewer is not aware of the video’s falsity, it may be possible to bring a claim against the creator and/or publisher of the video, such as the host website.

Intellectual property

A deepfake may also breach IP rights, such as unlawfully exploiting a brand. However, it is worth noting that individuals do not benefit from ‘image rights’ as they do in the US. Copyright may also be relevant where other original works have been substantially copied in the video’s creation. Cases are currently proceeding in the English and American courts on whether it is an infringement to use copyrighted material to train AI that then creates content. 

Data protection

Perhaps the most interesting (but untested) avenue is data protection. It is arguable that, in processing the personal data required to create a deepfake, the creator is a controller and subject to strict obligations on how the source material is processed. In the absence of any lawful basis for processing an individual’s face and voice, the creator may be liable. This has the potential to develop into a de facto ‘image right’ for individuals who are the victims of malicious deepfakes. 

(False) privacy and harassment

Where a deepfake depicts an individual in a private situation (pornography being the obvious example), a claim may be brought on privacy grounds. It is irrelevant that the content is false – English law provides that if the victim has a reasonable expectation of privacy in relation to the type of information, then a remedy can be sought irrespective of its veracity. Where the individual has been caused alarm or distress, it may also be possible to bring a claim for harassment.

Criminal law

Criminal law may also provide some protection. It is an offence to send communications (which would arguably include deepfakes) with the intent to cause distress or alarm to the recipient. However, criminal cases may be difficult to pursue given that they require proof beyond a reasonable doubt that the deepfake was created with the intent to cause harm or distress, particularly in cases where the perpetrator is anonymous.

The sharing of pornographic deepfakes without consent is proposed to become a specific criminal offence if the Online Safety Bill becomes law.

Looking ahead

As the lines between technology and reality grow increasingly blurred, the law will likely evolve – but tackling deepfakes for good may require a combination of legal, technical, and societal efforts.

 Oliver Lock is an Associate in Farrer & Co‘s Reputation Management team

THE LESSONS OF THE RICIN CASE of 2003 by Julian Hayes

Julian Hayes

It has been twenty years since war erupted in Iraq, a war predicated by deceit perpetrated by the US government aided by the UK. The precursor to war consisted of tales of Saddam Hussein’s weapons of mass destruction and links with Al Qaeda. The fact that the two were themselves diametrically opposed appeared to have been ignored and the rationale that was used has long since been discredited and criticised by the Chilcott Report.

In 2003, at various addresses across London, a group of young Algerian men and boys, were arrested on suspicion of producing the deadly poison ricin. There were over 100 arrests that followed, with the tragic murder of a police officer in their wake, and a group of defendants were charged for the first time under the Terrorism Act 2000. A media frenzy ensued and the “Ricin case” was penned.

For the following two years, to the bemusement and anger of those of us involved in the defence of those arrested, we witnessed the cynical politicisation by the Blair government of a criminal case. An attempt was made to pervert the facts into a narrative to support justification for war by a government whose very credibility hinged on obtaining convictions.

In February 2003 Colin Powell addressed the UN Assembly to promulgate the plan to wage war on Iraq. Here, he made reference to the Ricin case, suggesting that Saddam’s regime was using Al Qaeda terrorist cells to take chemical and biological agents into western countries to release upon unsuspecting populations. This whole construct was a lie.

Ricin was never found, the scientists in Porton Down confirmed this, a fact that would appear to have been evident even before Powell’s UN address. The government buried the inconvenient truth, until the commencement of the Old Bailey trial in 2004, when the prosecution conceded the issue and an embarrassed official from Porton Down accepted that there had been a ‘breakdown’ in communication where this vital piece of information had failed to have been passed onto superiors. The trial lasted eight months resulting in the acquittal of all, save one. The one conviction was of a lone wolf who had fallen into the custody of the Algerian authorities.

What of its aftermath? The case has been conveniently brushed under the carpet. The Chilcott Inquiry, whilst damning of the Blair government, failed to acknowledge or deal with the use of this case to promote the justifications of war.

The case was a testament to the fairness and independence of trial by jury at a time when there was adequate legal aid funding for those facing the full force of a British government intent on gaining convictions. Regrettably with the current crisis, the continued inadequate funding, the haemorrhaging of lawyers willing to engage in poorly remunerated work, one wonders whether, if faced with a similar scenario, the thin grey line of criminal defence lawyers will be strong enough to fend off such clear abuse.

Julian Hayes is senior partner at Berris Law and author of “Stonehouse, Cabinet minister, Fraudster, Spy” https://www.hachette.co.uk/titles/julian-hayes/stonehouse/9781472146533/

LEGAL COMMENT OF THE WEEK

TOPIC: The Justice Secretary’s announcement this week proposing to make mediation mandatory for separating couples, or possibly face being fined

COMMENT BY: Rebecca Cockcroft, co-head of family law at Payne Hicks Beach

“Whilst the government’s plans are welcome, and will hopefully ease the burden on the extremely stretched family courts, there will always be cases that are not suitable for mediation, for example where one party is controlling or even violent and where mediation is unlikely to assist. In such instances access to the family courts will remain imperative.”

COMMENT BY: James Hayhurst, Founder of the Positive Parenting Alliance

“Family separation and divorce is one of the greatest, least-recognised health risks to our children. So, we welcome the government’s latest initiative to help separating families before they land up in a family court. And we encourage the government to go even further.


“Mediation and much earlier, accessible support for all families and children are much better ways for most parents to deal with one of the most stressful moments in their entire lives. If we’re serious about protecting our children from harm, that’s where our money is best spent in future.

“While law reform is necessary, we must start treating family separation and divorce as a health issue, not just as a legal one.”

COMMENT BY:  Zoe Rose, Family Team Leader at Hedges

“This is positive news but we need to ensure that it doesn’t become another tick box exercise”

Any forum which encourages couples to speak with each other to resolve the implications of their separation should be encouraged, particularly for those who have children together. The earlier couples can find a constructive way to communicate and co-parent the better for all involved. 

For too long the mandatory MIAM (information meetings about mediation) requirement has been seen by some as a tick box exercise and we need to ensure that these reforms do not become subject to a similar issue. Careful consideration will need to be given to how information about what happened during mediation is shared with the Court, if a settlement is not reached, to avoid couples being discouraged from fully entering into the mediation and negotiations but at the same time ensuring Judges have sufficient information to understand whether anyone should be penalised for lack of engagement. 

It is also important that those who are struggling to get the necessary disclosure from their ex’s are afforded the assistance of the Court to obtain this before being forced into any process of negotiations. As such, I suspect that the government’s proposal to make mediation mandatory, will be part of a broader package to ensure that valuable Court time is reserved for those cases that really need it.”

COMMENT BY:  Elizabeth Saunders, Partner and Family Team Leader at Gardner Leader

In April 2011, the government introduced a requirement for mediation in the shape of a MIAM (Mediation Information Assessment Meeting).

The stats show that mediation is a quicker, cheaper and more lasting resolution to family issues. However, this is not compulsory and there is a long list of exceptions.

The latest announcement is to tighten up the existing rules and to make it compulsory but there will inevitably still be exceptions, such as those in abusive relationships.

The court system was in crisis and overloaded pre pandemic. It’s creaking at the joints now!

I suspect that any change will still be watered down because mediation is just not suitable in every case.

The reason it’s vital to see an experienced family solicitor is because we practise inclusively and collaboratively to try and remove the heat from the case so good family solicitors support a family to reach their own solutions in any event.

Mediation and other forms of alternative dispute resolution are vital but a good solicitor should be bringing those skills into their daily practice anyway.”

For more go to the Gardner Leader website: https://www.gardner-leader.co.uk/

COMMENT BY: Anne Barlow, Professor of Family Law and Policy at the University of Exeter Law School

Getting people to attend a family mediation session is one thing. The process of going through mediation is another – it’s not easy and it can be hard for families to come to agreements. Couples intending to mediate have to be carefully screened to ensure there is no abuse or coercive control, and everyone involved needs the best possible information and advice. Children’s views on arrangements affecting them are also likely to be important. It doesn’t seem as if the government is considering an all-round service. Reaching an appropriate settlement is the best thing for families, but not if the process is unfair to anyone and agreement is not freely reached.”

TOPIC: The Government’s call for a review of the Matrimonial Causes Act and how assets are split in divorce

COMMENT BY:   Caroline Holley, family law partner at Farrer & Co

The root causes of soaring legal costs in divorces are not straightforward: protracted litigation driven by one or both parties behaving unreasonably, and a court system that is creaking under the current caseload, are significant contributors. Both of these fundamental problems would need to be resolved if the proposed review of the Matrimonial Causes Act has any chance of effecting real change. 

There is a need for procedural rules requiring parties to focus on settlement, with financial penalties if they do not. For example, the reintroduction of without prejudice save as to costs correspondence would discourage parties from litigating unreasonably.  

Fairness should lie at the heart of our family courts, and that is what the current law provides. The wide judicial discretion afforded by the Matrimonial Causes Act provides an essential safety net for financially weaker parties, allowing judges to ensure a fair outcome, including where pre-nuptial agreements are concerned. Tempting as it is to look to other jurisdictions for alternatives, these too have their shortfalls. The risk in taking away the wide discretion which exists is that it will lead to manifest unfairness in some cases.

Overall, we need to think carefully about whether it is right to sacrifice the Court’s ability to ensure a fair outcome in the name of an expedited process. If we take the benefits of judicial discretion for granted, there is a risk we could end up throwing the baby out with the bathwater.”

LEGAL APPOINTMENTS OF THE WEEK

HUNTERS LAW

Piers Larbey

Piers Larbey has joined Hunters Law as a Partner in the Corporate and Commercial Department. Formerly with Fletcher Day and with 20 years’ experience working in high-profile and major matters for top 10 FTSE listed companies, Larbey focuses on private M&A transactions, investment work and property finance.

I have long admired Hunters Law and am excited to be joining the team I look forward to bringing my experience in corporate and commercial law to the firm’s well-regarded and growing practice,said Larbey. “With global political and economic uncertainty weighing heavily on the UK economy including the legal sector, 2023 could be a tough year for law firms.  Another challenge will be driving new business and remaining competitive.  Hunters prides itself on its depth of knowledge, breadth of experience and having the right people to do the job and for firms that share these values there will be plenty of opportunity to allow them to continue to flourish.”

Henry Hood, Hunter’s Senior Partner added, “We are thrilled that Piers has chosen to join us and look forward to working with him as we continue to develop Hunters’ corporate and commercial department.”

SIDLEY AUSTIN

Ali Shaikley

 Ali Shaikley has joined Sidley Austin LLP as a partner in its global M&A and Private Equity practice in New York. Previously a partner at White & Case in the Dubai and Abu Dhabi offices Shaikley’s international practice has focused on advising companies and investors in the Middle East on M&A, private equity, equity capital markets transactions, and general corporate counselling.

Having advised on numerous transactions across the globe, he has strong relationships with private equity sponsors, government-related entities, investment banks, family offices, and other investors throughout the Middle East, “Ali’s arrival will boost our growing team of Middle East-focused lawyers as we continue to see an uptick in supporting investors and companies in the region on high-profile cross-border matters,” said Yvette Ostolaza, Sidley’s Management Committee chair and an Executive Committee member. “Ali is our second significant hire with substantial experience and knowledge in Middle East transactions, following the recent arrival of Michiel Visser, and will help drive our growth in the region. His widely respected expertise, fluency in Arabic, and experience in cross-border transactions will help us further strengthen our expanding offering to clients in the region.”

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