Edward Fennell’s LEGAL DIARY

May 5, 2023

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

May 5 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: The King’s Writ

King Edgar paying allegiance to God. His coronation in 973 at Bath was the first to be recorded in some detail. He was also the first king to issue laws for the whole of England.

Enough has been said about tomorrow’s Coronation to warrant anything further here. Aside, that is, from acknowledging that the Royal Assent remains a vital part of the law-making process. As in many aspects of the unwritten British Constitution it does not bear too much close examination because otherwise it falls apart. But philosophically at least it merits some reflection.

Is the Royal Assent the definitive back-stop against the passing of laws which breach the country’s fundamental sense of itself? Or is it no more than a rubber stamp on the tyranny, in effect, of an ephemeral House of Commons? The role of the Monarch may be primarily symbolic – but symbolic of what?

The LegalDiarist

In This Week’s Edition

+ LEGAL DIARY OF THE WEEK

– Golden GlOBE for Arnold & Porter

– London still a magnet for Foreign Litigants

– SMEs to benefit from ‘Late Payment’ Technology

– Metamorphosis Due?

+ LEGAL COMMENT OF THE WEEK on Ed Sheeran, Cab-rank rule, Österreichische Post, CMA and AI, legal costs.

+ APPOINTMENTS OF THE WEEK Lawrence Stephens and HF

LEGAL DIARY OF THE WEEK

Golden GlOBE for Arnold & Porter

‘One of a Kind’ Special Relationship

Readers of the Sunday Times – and especially the controversial columnist Rod Liddle – will have noted a major take-down recently of the much vaunted ‘special relationship’ between the UK and USA. Whatever it might have been back in the aftermath of the Second World War it has become an illusion in this century.

Nonetheless, London keeps plugging away, trying to inject life into the jaded trope. And no better an opportunity than the hook of tomorrow’s high jinks. Hence Ron Kind, a former U.S. Representative and now a senior policy advisor at Arnold & Porter has been awarded an OBE in recognition of his services to the Anglo-American relationship.

Among other things Rep. Kind co-chaired, during his time in Congress, the bi-partisan U.S.-U.K. Caucus and the U.S.-British Inter-parliamentary Caucus whose purpose was to promote closer relations and understanding between members of Houses of Parliament and the U.S. Congress and other U.S. political and leading figures. Whether Kind finds somewhat jarring the imperial reference within the ‘Order of the British Empire’ would perhaps be too unkind to ask.

London still a magnet for Foreign Litigants

Clearly under siege from Non-Indigenous Claimants

The Commercial Courts Report 2023, published this week by Portland, gives encouraging evidence of the continuing popularity of London among international litigants. A record-breaking 78 different nationalities were represented among a larger number of foreign litigants than ever before. By contrast, however, the home market is shrinking. A mere 40% of litigants were from the UK, a substantial decrease from previous years.

“Despite increasing competition from overseas, London’s appeal to international litigants, and the soft power that goes with it, endures – at least for now,” said saidPhilip Hall, Managing Director and Head of Portland’s Litigation and Disputes practice.

Strikingly – and regardless of the introduction of sanctions – a record number of Russians were recorded. Indeed, they represented the biggest group of foreign nationals in the Courts. “This was driven largely by Russian business executives, and some sanctioned entities, such as PJSC Bank Otkritie Financial Corporation,” comments Portland whose polling revealed that more than half of the British public thinks that it is negative that the English courts are being used by Russian litigants. (London lawyers, by contrast, would probably not agree).

Russia was followed by the US, India and Singapore as the most common nationalities appearing in the Courts. “I am surprised by the increase in Singaporean and Indian litigants,” commentedLord Neuberger of Abbotsbury, former President of the UK Supreme Court and Master of the Rolls in a foreword to the report. “It appears to be a particular compliment to London, given the keenness of the Singaporean courts and arbitration institutions to attract southern Asian international dispute resolution to Singapore.”

Oddly enough in this increasingly confusing world no Ukrainian litigants have appeared in the Commercial Courts since July 2021.

“The public’s strong feelings on Russians using the English courts, and on environmental litigation being used as a force for good, shows once again that the law does not exist in a vacuum,” said Philip Hall. “Litigation, commercial strategy and reputation can no longer be separated. Today, every entity involved in litigation must consider how the audiences that matter to them will react.The recent world-wide wave of climate change litigation is popular among the British public. Portland’s in-house polling shows overwhelming support for climate change and greenwashing lawsuits, with far-reaching implications for companies and organisations’ reputation.”

SMEs to benefit from ‘Late Payment’ Technology

In a sign of the growing use of IT in law theLawtechUK proposal to make use of Online Dispute Resolution(ODR) to tackle the SME late payment crisis is being taken up via a joint venture between two dispute resolution companies, IPOS Mediation (IPOS) and Resolve Disputes Online (RDO).

Legal costs are becoming a major headache for small and medium sized enterprises with an estimated £40bn in annual losses amongst that group are due to legal problems. One of the biggest issues is late payments and the lack of an efficient way of recovering debts. Overall the cost to the economy is reckoned to be £2.5bn annually.

It was back in 2020 that LawtechUK recognised the potential for a new, technological approach to the problem. Specifically, they envisaged the development of an online platform that could provide as an optional alternative to the courts. an affordable, easy to use environment for SMEs to recover unpaid debts. A contract was then awarded to Resolve Disputes Online (RDO) as part of a consortium to deliver a feasibility study and proof of concept to research the need for such a platform. Arising from this work IPOS and RDO, both pioneering dispute resolution companies, decided to launch a joint venture which would combine RDO’s online dispute resolution technology with IPOS’s mediation experience to deliver on LawtechUK’s vision.

“The RDO-IPOS joint venture is a unique and transformative collaboration,” said Sebastian Jenks, Head of Sales at RDO. “IPOS’s experience as one of the most well-known and effective mediation practices in the UK is complementary to RDO’s plans to deliver on the next phase of the SME ODR project, first started by LawtechUK. RDO’s mission is to improve access to justice and we have been very successful in North America, Asia and Europe. This partnership continues to validate our position as a disruptive force in the UK market.”

Metamorphosis Due?

As a regular reader of Taylor Wessing’s Global Data Hub News the LegalDiarist aims to keep abreast of the latest data privacy news. So it was striking to see in yesterday’s edition that ‘Meta prepares for bad news on data transfer decision.’

In brief, the story is that the ever onward thrust of Meta might be coming to a juddering halt with a potential halt on its EU-US data transfers and significant potential fines.

“Meta has provided for the Irish Data Protection Commissioner to rule that its use of Standard Contractual Clauses and supplementary measures do not sufficiently protect EU personal data transferred to the USA,” Taylor Wessing comments. “A decision is expected by 12 May. There is likely to be a three month compliance period but if the EU-US Data Protection Framework is not agreed by the end of that period, Meta has warned it may need to cease a number of its EU services including the Facebook and Instagram platforms.”

At that news some of us might issue sighs of relief. (Okay, we’re in a small minority)

LEGAL COMMENT OF THE WEEK

TOPIC: Ed Sheeran’s successful defence in his copyright trial over similarities between his hit single ‘Thinking Out Loud’ and Marvin Gaye’s ‘Let’s Get It On’

COMMENT BY: Nick Eziefula, Partner at specialist media and entertainment law firm, Simkins

“Another significant court win for Sheeran, which makes the line between inspiration and infringement a little less blurred. Although this decision doesn’t set a direct legal precedent (as all such cases tend to turn on their particular factual circumstances), the outcome here will be reassuring to many within the music industry, as it helps to reinforce the principle that nobody can own the fundamental building-blocks of music.

“As we saw before on the “Blurred Lines” case, a jury-based system can sometimes lead to unpredictable outcomes, when faced with complex, technical questions at the intersection between copyright law and music theory. This decision will ease concerns of floodgates being opened to ever more song infringement claims of this kind.”

COMMENT BY: Michael Gardner, partner and head of IP & commercial at Wedlake Bell

“For those who hate his music (er..including myself) this was a disaster since he’d promised to quit if he lost.

But it’s a huge win for Sheeran, not only has he successfully fought off what could have been a very expensive damages claim, but by facing down the allegations and winning so clearly in a case that some music commentators thought he might lose, he’s sent a powerful message to other would-be claimants: don’t go after Ed and expect him to just pay you off.

Sheeran has attracted quite a few copyright lawsuits over the years. The result of this one may mean fewer people will sue him in future.”

TOPIC: The cab-rank rule and its continuing importance

COMMENT BY: Nick Vineall, Chair of the Bar

“Some elements of the tabloid press have recently been stirring up trouble by misreporting the Bar Council’s position on the cab rank rule. So let me again state what it is, recognising that in any particular case the interpretation and application of the rules would be a matter for the BSB to whom we are required by the Legal Services Act to delegate the task of professional discipline.

The cab rank rule is here to stay. It is a bedrock obligation for us as a profession – the barristers’ equivalent of the doctors’ Hippocratic oath. The rules require that we do not discriminate between clients and if we are offered a case, which we are competent to do and available to take, we must take it. I do not accept the notion that the rule is honoured more in the breach than the observance, but if it were the case that some people breach the rule that would be an argument for disciplining them, not an argument for changing the rule. I have always complied with the rule, and I think I am in the company of the overwhelming majority of the profession in taking that approach.”

TOPIC: Yesterdays’ decision by the CJEU regarding Österreichische Post and non-material damage resulting from unlawful processing of data.

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

“The judgment strikes a blow to the viability of data protection class actions in Europe and makes it unlikely that claimant firms and their funders will risk bringing the type of low value, opt-out claims that were once thought would be a feature of the post-GDPR litigation landscape.”

“It also looks like the end of the road for the serial complainants whose business model has been to extract pay-outs from companies over technical breaches of the law. Given the difficulty of proving that they have suffered genuine harm, it would be surprising to see these individuals continue to chance their arm now that the law is effectively settled on this issue.”

TOPIC: The UK’s Competition and Markets Authority’s proposed review of the AI market

COMMENT BY: Alex Haffner, competition partner at Fladgate

“The CMA is carrying out this investigation under its general powers to keep markets under review. As such, the likely immediate outcome of the investigation will be more about the CMA getting a better understanding as to how AI is impacting on technological development and companies’ ability to leverage its benefits to provide better products and services to consumers, rather than taking any enforcement action against individual companies.

That said, viewed against a background in which the CMA is being given ever greater powers to investigate and hold Big Tech to account, this announcement only serves to reinforce the notion that CMA is determined to use those powers as broadly as it can.”

COMMENT BY: Tim Wright, tech and AI partner at Fladgate

“What now feels like an explosion of chatbots is in reality just the culmination of a long, slow, burn – researchers have been developing large language models and generative AI for 15 years or more, but only now is the business community truly starting to understand their true potential.

The UK has already set out its stall, promising a balanced, business-friendly framework to encourage innovation and investment, and the CMA’s review supports this approach. But as the adage goes, with great power comes great responsibility, hence the CMA’s investigation that will consider what, if any, additional guardrails are needed to protect consumers above and beyond the existing regulatory corpus.

However, the review will not cover a number of other issues raised by these foundation models such as copyright and intellectual property, online safety, data protection and security, and it remains to be seen to what extent UK regulators feel it necessary to flex their muscles in these areas.”

TOPIC: The landmark High Court judgment in the case of Ann Francis Ikin & others vs Shawbrook Bank Limited & others concerning claims for costs following settlements in solar panel litigation matters

COMMENT BY: Glenn Newberry, Partner at Eversheds Sutherland and lawyer for the defendants

“We are pleased with the High Court’s findings in this case given the grossly inflated and misleading costs’ claims which my clients were facing, and the attempts to obfuscate the true position. Today’s ruling is a notable and timely reminder to all in the industry that a signature on the bill of costs really is significant and not just a rubber stamping process. The duty to check the accuracy of the bill lies with the lawyer. Simply signing a bill and trusting that others have got it right is not good enough.”

LEGAL APPOINTMENTS OF THE WEEK

LAWRENCE STEPHENS

Ricardo Geada has joined corporate and commercial law firm Lawrence Stephens as Director of its new Regulatory Solutions department. The firm has said that he will have “A focus on the cannabis and cryptoassets sectors”.

Formerly with Mackrell Solicitors it is said that Geada has a ‘genuine interest’ in drug policy reform and regulation particularly the legal developments in medicinal cannabis and other psychoactive substances. His expertise in the sector has led him to become one of the UK’s leading experts in cannabis and cannabinoid regulation, having worked as a contributing editor on the Chambers & Partners Global Practice Guide: Medical Cannabis & Cannabinoid Regulation for two years.

Having been regularly instructed by global cannabis companies, handling their legal and strategic requirements in the UK and abroad, Ricardo’s appointment to Lawrence Stephens enables the firm to establish a new Regulatory Solutions department which will mark a significant departure for the firm.“My new department will tackle frontier areas of regulation,” said Geada, “and I look forward to building relationships with new peers and clients.”

HF

Michael Rimmer has been appointed as the new Chief Operating Officer (COO) at HF (Horwich Farrelly), one of the UK and Ireland’s leading legal advisers to the insurance and commercial sectors.

Having joined the firm in 2008 and become a Partner in 2017, Rimmer was appointed Legal Operations Director in 2017. He will now be responsible for overseeing Operations across the entire firm,. This will involve championing operational efficiency, best practice and outstanding service delivery through best use of technology, innovation, data and process re-engineering. He will also be on the HF Executive Board.

“I’m very excited to take on the role of COO at HF, particularly at a time of such change and growth,” said Rimmer, “We have great people delivering an excellent service to our clients and as COO I will be in a position to make sure we maximise all the technology and innovation available as well as ensure we look after our own people and remain a sustainable, successful business.”

E-VENTS

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fennell.edward@yahoo.com