Edward Fennell’s LEGAL DIARY

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

May 19 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: APOLOGIES FOR THE ERATA

Not much more of this then

Writing in The Sunday Times Business Section last weekend, Irwin Stelzer in his ‘American Account’ recalled John Maynard Keynes’ observation of 1928 that within one hundred years ‘an age of leisure and of abundance’ would commence. And, with just five years to go, that might now be feasible – thanks to AI. Or at least the ‘leisure’ part – the problem being that it will be enforced leisure. As Stelzer observed, ‘One study projects that 80 percent of all jobs will be affected by AI. Another concludes that lawyers will be among the most adversely affected.’

So are we coming to an end of an era? Really, who knows. The truth is that everything is now changing so quickly that any predictions must have foreshortened time horizons. Rather than thinking in terms of ‘era’ we ought to be looking ahead to endlessly changing ‘erata’, short blocks of years with distinctive characters of their own but rapidly dissolving and transforming to something else. The future then is an ‘eratum’ – remember you read it here first.

The LegalDiarist

In this Week’s Edition.

+ LEGAL DIARY OF THE WEEK

– KPMG LAW BIDS FOR TOLLEY’s TAXATION AWARD

– THE SUNDAY TIMES SIGNALS THE BEST LAW FIRMS TO WORK FOR

– WADING IN AT REVIEWED & CLEARED

– MARKING YOUR CARD

+ CONTRIBUTED LEGAL ARTICLE OF THE WEEK

– Non-negotiable! The non-disclosure of assets in the Family Court by Sarah Jane Lenihan

+ LEGAL COMMENT OF THE WEEK

on no-fault evictions, mental health in the ‘Twilight Zone’, Met Polic judicial review, the EU decision over Activision Blizzard

+ LEGAL APPOINTMENTS OF THE WEEK

at Osborne Clarke and Boodle Hatfield

LEGAL DIARY OF THE WEEK

KPMG LAW BIDS FOR TOLLEY’s TAXATION AWARD

It was heart-in-the-mouth time last night for KPMG Law at the Royal Lancaster Hotel, as it waited to discover whether it would be crowned as the  Best Tax Disputes/Investigations Team at the Tolley’s Taxation Awards.

And then it was a thrill all-round when the result was announced – YES, they’d won it!

Speaking earlier when shortlisted for the award Matt Fleming, Partner at KPMG Law, said, “We are delighted that our hardworking team has been acknowledged for their efforts with this nomination and now have fingers crossed ahead of the ceremony next week. KPMG Law is currently in the middle of a major growth period and this nomination is further evidence of the firm’s commitment to success in this field.”

Established in 2014 as one of the new wave of law firms located within a Top Four accountancy practice KPMG Law is represented throughout the country’s major legal centres and is integrated within the wider UK firm alongside the tax, consultancy and deal advisory practices.

Older readers will remember how, twenty years ago, Andersen Legal (linked the accountancy firm Arthur Andersen) crashed and burned. But, by contrast, the KPMG Law business has enjoyed a tremendous period of growth – it has recently announced an ambitious investment programme to double in size over the next two years. This plan would take the number of legal professionals in the UK to over 400. So expect to see it in the running for many more awards in the years ahead.

‘THE SUNDAY TIMES’ SIGNALS THE BEST LAW FIRMS TO WORK FOR

“In the scramble to cope with the “great resignation” and catch up with Covid-19’s home-working experiment, perhaps some could benefit from prioritising more creative employee engagement,” said Martha Lane-Fox in the introduction to this years Sunday Times ‘Best Place to Work’. So it was good to see a number of law firms scoring high in this annual list of the employers who offer more than just a salary. But it was noticeable that the usual suspects were largely missing. Instead it was the people you would really like to spend time with – not necessarily earning the most money. These included, for example, Russell Square-based Bishop & Sewell where the 100+ employees enjoy having fun together from cricket and rounders to Scalextric and social events. Plus the firm offers access to digital and virtual wellbeing tools along with office fresh fruit deliveries.

Then there was Surrey firm Setfords Solicitors which has an on-site gym and the services of a free personal trainer. There are six mental health first aiders available and weekly well-being drop-in sessions. “Colleagues gather for daily morning meditations, and a fully funded restaurant serves meals and snacks throughout the day,” reported the Sunday Times.

Meanwhile Nockolds Solicitors in Hertfordshire offers a monthly free massage and operates “knit and knatter” club. “At the monthly Nockolds Together day, colleagues participate in charity initiatives, and the Nockolds Academy provides staff with a full development programme,” comments the report.

Of course, there are probably these facilities at plenty of other firms and pay may be better elsewhere but the message seems clear – the smaller the firm the more genuinely friendly they are likely to be. And the more fun they are to work for.

WADING IN AT REVIEWED & CLEARED

Talking of fun law firms to work for Reviewed and Cleared (R&C), the boutique media law practice which has provided more legal clearance and compliance advice than you can shake an Oscar at, has cut it ties with Wiggin and is now running free under the leadership of well-known media lawyer and football pundit Alex Wade (left).

“I had a right of first refusal in my contract if Wiggin chose to divest itself of R&C,” Wade explained while on his way to the Cannes film festival earlier this week (as media lawyers do). “I invoked this and negotiations for me to buy Reviwed & Cleared began. It has taken nearly five months but today the sale and purchase went through. Taking the decision to take on R&C was not easy. However, I’m convinced R&C is a fantastic business. There’s lots in the pipeline and I think we’ve barely scratched the surface of its potential. Importantly, R&C enables all of us to make a living, and I didn’t want people who value R&C to have to rethink what they were doing.”

As Wade went on to comment, there will be no real change on a day-to-day level as a consequence of this transaction. R&C continues to be SRA-regulated and it is now insured with its own underwriters. Nonetheless. for all of those who have followed Wade’s career with interest, including his days ‘reviewing and clearing’ with The Times, it will be fascinating to see the energy he brings to the top job – although not, one hopes, at the cost of neglecting his commitment to ‘grass roots football’, in France especially especially in Grasse, home of perfume and Racing Club Pays de Grasse. “What a game last Saturday, when Lyon-La Duchère came to town!” he declared.

For more go to https://www.footyonthemed.com/podcast/grasse-vs-lyon-la-duchere

MARKING YOUR CARD

Trademark registrations are a barometer of an economy’s innovatory activity and it’s no surprise that  Corsearch’s latest Trademark Industry Report shows just how dominant China has become. Even the USA tails some way behind with, perhaps surprisingly, Brazil, South Korea and Mexico just behind. (The EU and UK are then placed at a lowly 9th and 10th place, respectively).

Overall, Chinese companies occupied 16 of the top 50 slots for most active companies. By comparison, U.S. companies occupied 13 of the top 50 slots; Japan, 5; South Korea, 4; Switzerland, 4; Germany, 3; while the UK, Singapore and UAE each had one entry.

What is especially interesting in the report is that the most prolific industry globally for trademark filing in 2022 was the Agricultural Products & Services industry, with key companies leading the way including Inner Mongolia Yili Industrial Group Co Ltd (China), INTERNATIONAL FOODSTUFFS Co. (UAE), PepsiCo (US), Coca-Cola Company (US) and Grupo Bimbo (Mexico).

Meanwhile, the most active product classes in 2022 were:

1. Advertising and business (Management, communications, real estate and financial services)
2. Electrical and scientific devices (Scientific research, information and communication technology)
3. Staple foods (Agricultural products and services)
4. Education and entertainment (Leisure, education and training)
5. Clothing (Textiles- clothing and accessories)

“Our report provides an in-depth analysis of the global trademark landscape and illustrates some of the key growth areas,” said Stephen Stolfi, Chairman of Customer & Industry Advisory at Corsearch. “What is measured can be managed, as the saying goes, and for intellectual property law firms and professionals in the sector, this data on the most active sectors for trademark filing should prove extremely valuable for determining business focus in 2023 and in the future.”

CONTRIBUTED LEGAL ARTICLE OF THE WEEK

Non-negotiable! The non-disclosure of assets in the Family Court by Sarah Jane Lenihan

Sarah Jane Lenihan

When one party involved in high net worth divorce proceedings possesses staggering personal wealth, it can be tempting for that person not to fully disclose their assets. However, the lesson to be learned from a recent case in which a HNW academic concealed his £4mn inheritance from his ex-wife is that such a choice very rarely ends well.

In this example, Cummings v Fawn, the husband was found to have failed to disclose the full extent of his inheritance from his parents following their deaths within days of each other. Mr Justice Nicholas Mostyn, sitting in the Family Division of the High Court, said Cummings was a victim of “fraud” due to her husband’s failure to reveal the actual amount. As a result of the non-disclosure, a retrial of the financial remedies hearing has been ordered.

I am frequently asked by clients whether they really must disclose everything in their divorce, and what the consequences are for not doing so. My answer is always yes; I inform them that if I am aware they are unwilling to disclose all assets during a divorce then I can no longer represent them. I warn clients that if they are found to be non-disclosing assets any agreement or order could be set aside, along with them being required to meet the costs of their spouse.

In the aftermath of Cummings v Fawn, the reason for this uncompromising necessity is self-evident. If ever there was a template for how a HNW should not behave when faced with such proceedings, this case was it. While there are no automatic criminal consequences in the Family Court, the husband has instead been ordered to pay his wife’s costs not only for the appeal, but also the previous hearings.

The situation of the wife in this case identifies why it is important for the other party to raise any doubts regarding non-disclosure as early as possible. Even though she knew her ex-husband had received an inheritance she did not know the amount. Although her contestations were dismissed in earlier proceedings, the outcome could dramatically alter her financial situation. The starting position in divorce is for inheritance to be ringfenced by the receiving party if it has been kept separate during the marriage, unless there is a need for a party not to do so. In this case I believe we could see the Court taking the view that the wife’s needs should be met from the husband’s inheritance. 

Sarah Jane Lenihan is a partner at Dawson Cornwell

LEGAL COMMENT OF THE WEEK

TOPIC: THE GOVERNMENT’S INTENTION TO BAN NO-FAULT EVICTIONS AS PART OF THE RENTERS’ REFORM BILL

COMMENT BY: LAURA SOUTHGATE, Partner in the Property Disputes team, Cripps,

“On the whole, this bill is a positive development as it seeks to tackle the housing crisis – but the uncertainty it has created for landlords must be addressed by the government. Otherwise, it may have the opposite effect: landlords leaving the sector, and consequently, a greater shortage of housing.   

Landlords are generally receptive to change and can see the benefit in offering tenants a greater degree of security. However, it’s unclear whether the courts can keep up with the changes: there will always be tenants who don’t comply with the tenancy agreement (by not paying rent, for example), and landlords want to be sure that, should this happen, they will be able to recover possession. 

But the problem is, the courts are incredibly overstretched – possession claims can take months if not more, and even once a possession order has been granted by the court, the eviction process itself can take even longer. The government has recognised this, and says it will reform target areas such as the availability of bailiffs to protect landlords. But these changes should really be embedded before the reforms are implemented – otherwise, landlords will suffer, and so will tenants.” 

COMMENT BY: GARY SCOTT, Partner at Spector Constant & Williams

“Landlords have voiced concern that removal of the no-fault route for eviction leaves in place a possession process which is significantly flawed both in terms of the current permitted grounds for possession and the fact that the Court process is wholly unfit for purpose. In some cases, the process from serving notice to obtain possession has taken in excess of 12 months. In cases of rent arrears of at least two months, this means potentially 14 months of receiving no rental income without being able to obtain possession.

“The Bill proposes to extend the permitted grounds for possession and reform to the Court process. The details of such reform are not given and it is yet to be seen whether they are sufficient and can be implemented satisfactorily.”

TOPIC: MENTAL HEALTH ISSUES – DEALING WITH CLIENTS IN THE ‘TWILIGHT ZONE’

COMMENT BY: JEREMY GORDON, Senior Partner at Farrer & Co

“When it comes to an individual’s capacity to make a will, the law currently requires a black and white assessment; it does not acknowledge the nuances of those in the ‘Twilight Zone’ – the period where an individual experiences cognitive decline and is generally more vulnerable to influence, albeit that, in the eyes of the law, they are deemed to have mental capacity. Sadly, many people in this zone are exploited for their finances and assets, an issue which is made all the more challenging under current law, where the threshold for proving undue influence is very high.

Add to this the fact that the current test for determining testamentary capacity dates from 1870 and differs from the more modern test in the Mental Capacity Act 2005, it is clear that change to provide better safeguards for vulnerable individuals is long overdue.   

With our aging population, mental health issues or cognitive disorders such as dementia are expected to rise in prevalence, and we risk further individuals falling victim to exploitation. If matters are to improve, as well as improvements to the law, heightened awareness and understanding of the issues is key. It is vital that advisors and family members can take proactive, preventative and collaborative measures to safeguard their clients or family against financial exploitation. By having open and frank conversations about legacy planning early on, many individuals could be better protected under the current law.”

TOPIC: The Judicial Review of the Metropolitan Police’s handling of sexual misconduct by one of their officers. Having been found guilty of eight counts of misconduct the officer was served with a written warning, but he continued to serve, and secured a number of promotions including working in the office of the Met police commissioner at the time, Dame Cressida Dick.

COMMENT BY: Nancy Collins, Partner at Hodge, Jones and Allen, representing the complainant who was supported by the Good Law project.

“This is a significant case concerning police-perpetrated harassment of women and the police disciplinary process. It is important to recognise the bravery of our client in seeking to challenge the failures in the process to ensure greater accountability and enforced protection for victims of police-perpetrated harassment. We are grateful for the support of the Good Law Project”.

TOPIC: The decision this week by the EU to approve Microsoft’s acquisition of Activision Blizzard

COMMENT BY: Alex Haffner, competition partner at Fladgate

“The European Commission’s decision leaves clear blue water between it and the UK CMA in their assessment of whether competitive concerns as to the future of the cloud gaming market could properly be dealt with through (behavioural) commitments offered by the parties.

Whereas the Commission felt these commitments, essentially a form of open licensing allowing gamers to stream Activision games on the platform/device of their choice  were “sufficiently comprehensive”, the CMA’s earlier decision described the same form of commitments as too static and unable to account for changes in the market over time.

Critics of the CMA’s stance, of which there have been many, will inevitably seize on today’s decision as proving the point made that the UK’s regulatory regime is too rigid and stifles innovation. Microsoft and Activision’s lawyers will also use the decision to provide greater ballast to their appeal of the CMA’s decision which is in the works.

What is now at stake, however, is not just any perceived differences in the UK and EU regulatory regimes, but more fundamentally whether the power wielded by big tech needs to be dealt with through structural rather than behavioural means. It is worth remembering also that the US Federal Trade Commission has yet to reach its final decision in connection with the same merger and many have suggested they too are gunning for Big Tech.

There is clearly still much to play for here.”

LEGAL APPOINTMENTS OF THE WEEK

OSBORNE CLARKE

Jonathan McDonald (left) is joining Osborne Clarke as a data protection partner in its London commercial team. Formerly with Charles Russell Speechlys, where he was a partner and head of data protection and privacy for five years, McDonald specialises in data, technology and commercial law across a broad variety of sectors.  He has advised clients on a range of complex commercial transactions with a data or technology element, managing compliance projects in the UK and internationally. He has also been involved in cross-border and domestic data transfers, preparing for and dealing with data security breaches and data subjects exercising their rights.

Osborne Clarke’s international data practice now operates across the UK, EU and from China and Singapore but advises clients on matters in almost every global jurisdiction. The firm was recently named as a partner law firm by Europe’s first Data Protection Seal. Mark Taylor, partner at Osborne Clarke, said, “Jonathan will add strength and depth to Osborne Clarke’s data protection team with his expertise, self-assured manner and strong client connections and practice.  We’re confident Jonathan will hit the ground running and are excited to see his influence in shaping the data practice going forwards.”

BOODLE HATFIELD

Nicola Bushby (left) has been appointed as a partner in the Private Client & Tax department of Boodle Hatfield, the private wealth firm. Previously with Irwin Mitchell, Bushby has specialised in trust and estate litigation for successful individuals and families, often involving complex capacity issues. She has particular expertise in claims for breach of trust and inter-family disputes, alongside Court of Protection work, including contentious financial applications concerning the estates and businesses of those who may have lost capacity to manage them.

 “Nicola is widely recognised across the industry as an accomplished litigator,” said Hayden Bailey, Head of Private Client and Tax at Boodle Hatfield. “Her skills will prove invaluable to the team when advising clients considering or engaged in contentious estate litigation. She brings particular expertise in the complex area of capacity, a field where we are seeing an increased need for families and trustees to take specialist advice.”

E-VENTS

We hope that you have found this edition of the Legal Diary interesting (and even useful). If so, please circulate to colleagues.

Meanwhile please continue sending your legal diary stories, legal insights, comments and appointments news to

fennell.edward@yahoo.com