Edward Fennell’s Legal Diary – Edition 100
Friday 8th April 2022 Edition 100
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK – POLICING THE DOGS OF WAR
In the aftermath of the revelations about the atrocities in Bucha a young Ukrainian soldier was interviewed by a British journalist. He said bluntly and bitterly. “We’re not going to be taking prisoners anymore.”
The journalist seemed to let it pass, impressed by the soldier’s sense of righteousness revenge. But, following that admission, it came as no great surprise yesterday when it was reported that a wounded and captured Russian had been shot dead by Ukrainian forces (or, possibly, their Georgian allies).
The issue of war crimes is, then, going to get very dirty, very quickly. Will subsequent investigations be even-handed? Will ordinary soldiers on both sides be held to account or will their commanders be in the dock? Where does the buck stop?
Forty years on the UK is still grappling with these questions from The Troubles in N. Ireland. How a workable frame of justice can be set up for this war in Ukraine remains to be seen. But to retain moral authority it has to be balanced from the start.
The LegalDiarist
PLEASE NOTE THAT THE LEGAL DIARY will NOT be appearing over the Easter period . We wish you a peaceful, travel-free holiday.
IN THIS WEEK’S EDITION
LEGAL DIARY OF THE WEEK
– Fighting the law and fighting for the law: Biography of Leslie Thomas QC
– London International Disputes Week: Details announced
– London Solicitors Litigation Association (LSLA) Appoints a New President
– Survey Highlights Benefits of ‘No Fault’ Divorce
LEGAL COMMENT OF THE WEEK on ‘No Fault’ divorce, the Government’s new energy strategy, libel proceedings against former Tory MP
APPOINTMENTS OF THE WEEK at LEVEL and Wedlake Bell
E-VENTS at Gresham College
LEGAL DIARY OF THE WEEK
Fighting the law and fighting for the law
If you are looking for some riveting reading over the Easter break then ‘Do Right And Fear No One’ by Leslie Thomas QC might fit the bill. Name the top scandals in British justice over the past two generations and you’ll find Thomas involved on the side of the angels trying to sort them out. From the IRA Birmingham pub bombings in the 1970’s through to the New Cross Fire inquest and on to the Grenfell Tower Inquiry (plus many other cases) you will find Thomas steely eyed in his determination to secure justice. There is all this and more in Thomas’s story of what his publisher Simon & Schuster describes as the lawyer’s commitment to ‘fighting for the underdog and holding the State to account’.
In time honoured fashion it was his own experience of being picked on by the authorities as a young black man that crafted his determination to challenge the status quo. Having overcome an array of challenges he moved through the ranks to become the Joint Head of Garden Court Chambers in the UK and head of JC Legal Solutions in the Caribbean. He is now a Bencher for the Inner Temple and a member of the Bar Standards Board.
But as his publisher comments, “Few in the UK have done as much to shine a light on the shockingly high number of deaths that have occurred in police custody, and Thomas delves deep into the corruption that seems to abound within the policing institution across the U.K. From disproving wrongful arrests concocted to justify police violence, to bringing in experts to conclude that deaths in police custody occurred due to positional asphyxia rather than Sudden Adult Death Syndrome, Thomas continues to act for the underdog rather than the Establishment.”
As featured previously in the Legal Diary, Thomas has recently been holding the legal and judicial system to account through his lecture series at Gresham College. Now Thomas observes, strikingly, ‘When people ask me what I do, sometimes I say that I represent the dead…’ So ‘British justice’ – still very much a work in progress.
DO RIGHT AND FEAR NO ONE A LIFE DEDICATED TO FIGHTING FOR JUSTICE PROFESSOR LESLIE THOMAS QC 14th April 2022 | Hardback | £20.00 | Simon & Schuster
London International Disputes Week: Details announced
‘Global, Sustainable, Ethical?’’ is the strapline for this year’s London International Disputes Week (LIDW) which will take place in hybrid format from the 9-13th May.
There’s going to be very much an international flavour including an innovative discussion of dispute resolution across a range of jurisdictions following the “disputes sun” as it traverses from Asia through to the USA. Consequentially, the online events will cover East Asia, India, Eastern Europe, the Middle East, the CEE, Africa, offshore disputes, Latin America, Brazil and North America. Headlines speakers will include the President of the Law Society, I. Stephanie Boyce; President of the Supreme Court, Lord Reed; and Judge Loretta Preska (Senior Judge, former Chief Justice, US District Courts, Southern District of NY, USA)., comments:
“This year’s LIDW will be truly international, with a hybrid programme allowing those around the world to join discussions on the new challenges faced by the dispute resolution community,” said Richard Bamforth, Chair of the LIDW Strategy Group. “This year’s theme, ‘Global, Sustainable, Ethical?’ will be explored by thought leaders from clients to senior judges, experts to arbitrators, examining our role in the wider corporate landscape, whilst also reflecting on our own practices and their global impact.”
Highly topical will be a panel discussion on climate change in disputes, with a focus on disputes that states and corporates may face arising from climate change and energy transition issues. There will also be consideration of whether “winning at all costs” is sustainable in the long term. Whether issues arising out of the war in Ukraine will surface remain to be seen.
For full details go to: https://lidw.co.uk/#
London Solicitors Litigation Association (LSLA) Appoints a New President
In line with the tone of the International Disputes Week, the London Solicitors Litigation Association (LSLA) forsees a surge in litigation coming London’s way. The war in Ukraine, it points out, will be central to this. But that simply adds to the heavy backlog of disputes arising out of Covid and Brexit (remember that? quite a lot of fuss about it back in 2016).
So it’s a testing time to be the new President of the LSLA – but that’s the lot which has fallen to Nicholas Heaton, a Hogan Lovells Partner and leader of the firm’s litigation practice in London. “I am honoured to take over the reins as President of the LSLA in what is a highly dynamic time for UK litigation,” said Heaton. “ London litigators and the Courts acquitted themselves well during the pandemic and, as we leave behind the restrictions it imposed, in many respects we now have a more modern and tech-based approach to litigation. There is more change to come. Events such as Brexit, Covid-19 and now the war in Ukraine will continue to influence litigation in London for many years.”
Referring to the LSLA’s annual litigation trends survey, Heaton commented that the Association’s members highlighted the importance of social mobility, diversity, inclusive work place culture and mental health and wellbeing. He also paid tribute to his predecessor Chris Bushell. “He was a fantastic leader and led important discussions around managing the impact of the pandemic, while at the same time ensuring that the LSLA was honouring its commitments elsewhere.”
Survey Highlights Benefits of ‘No Fault’ Divorce
This week will go down in the history of family law in the UK as the point when, finally, no-fault divorce became real and was no longer a phantom waiting over the horizon. As the LEGAL COMMENT (further below) illustrates it has attracted, unsurprisingly, massive interest.
Meanwhile, research undertaken by Fladgate reveals just how much ‘No fault’ was wanted and needed by couples who had realised that they had made an honest mistake in choosing their life partner.
According to the research more than a quarter (28%) of divorcees believe a ‘no fault’ divorce would have made the process less acrimonious or hostile and 47% of divorced people suggested that a no fault divorce would have made the process simpler and quicker. Other benefits suggested include that a ‘ No fault’ would have placed less of a strain on children’s mental health and wellbeing and, indeed, less strain on the relationshi between parents and children.
That said there is a significant difference between the genders. While 7 in 10 men would have chosen a no fault divorce, for women the figure is reduced to 4 in 10. (The implication being, presumably, that more women than men ‘blame’ their spouse for what went wrong).
“The introduction of no fault divorce has been eagerly anticipated in the UK,” said Teresa Cullen Family Law Partner at Fladgate. “This research demonstrates just how transformative the new rules may be in improving the UK’s divorce process.”
LEGAL COMMENT OF THE WEEK
TOPIC: NO-FAULT DIVORCE
COMMENT BY:Alex Carruthers, Partner at Hughes Fowler Carruthers.
“This is a huge leap towards a more civilised and amicable divorce process, ending the requirement to prove nasty allegations of behaviour. It is a relief to virtually the entire legal profession who believe that the previously antiquated divorce process caused unnecessary acrimony for separating couples and their families”.
“It has taken decades since the last unworkable no-fault divorce law for the Government to accept the need for further reform. This will save 65,000 or more divorcing couples each year from having to prove fault to get a divorce. This means people won’t waste money on an argument that has no bearing on anything other than why the marriage broke down.”
COMMENT BY: Sam Longworth, Partner and Divorce and Family Lawyer at Stewarts
“The framework for our divorce system dates back to 1973… and the requirement of one party to prove the fault of the other in order to obtain a divorce within two years of separation has seemed very out of sync with modern values and views for a very long time indeed.
“The breakdown of a marriage is always a difficult time for everyone, and the decision to divorce is never one that is taken lightly. Once that decision is made, having to highlight the fault of one party either through infidelity or examples of unreasonable behaviour can create far more difficulties and lead to anger and resentment, which can make the dialogue regarding children and finances more difficult.”
COMMENT BY: Hannah Gumbrill-Ward, Solicitor at Winckworth Sherwood
“This is a welcome step in the modernisation of divorce. Not only will the removal of blame from the breakdown of a marriage aid couples in reaching swifter financial agreements, but also by removing the need to prove facts such as adultery or unreasonable behaviour, it will help to keep private details out of court hearings. This is particularly important at a time when the prospect of greater press reporting in the Family Courts is looming on the horizon, following the publication of the President’s report in October 2021, which will affect everyone, not only high-profile couples.”
COMMENT BY: Amanda Rimmer, partner in the family law department at Stephensons
“Wanting to separate can happen for a variety of reasons, including couples who want to end a relationship on very amicable terms where both have simply fallen out of love. This was not easy to do at all and would force them into having to complain about their spouse’s behaviour. These changes should, in theory, put an end to the blame game and make it much easier for people to bring their legal relationships to a conclusion. Gone are the allegations of affairs and unreasonable behaviour.
“At the same time, these changes could leave one person reeling from the ease with which their partner can end their relationship. Simply signing a statement of irretrievable break down and issuing the Application with a quick click of a button online, starts a digital process of ending the relationship. The changes also mean that the ability to defend the Application will also be made much more difficult, meaning if one partner says the relationship has irretrievably broken down, the other has no grounds to say otherwise.
“It seems inevitable that these changes would eventually come about, and it will certainly be interesting to see whether rates the rates of divorce or dissolution increase over the course of the year as a result.”
COMMENT BY: Helen Bowns, partner and head of the family team, Shakespeare Martineau
“Ending a marriage is already a stressful decision, and for couples who have reached it mutually and civilly, it can be upsetting to choose who the proceedings will be made against. Applying jointly will remove this unnecessary formality and lessen the chance of blame creeping into the equation.
“Removing the option to contest a divorce is a vital step forward, stopping people from being trapped in a marriage that they no longer want to be part of.”
“Divorce terminology has also been judged to be outdated, so this is being brought up to date. For example, the person applying for the divorce will be called the applicant, rather than the petitioner. As well as this, the decree nisi will become the conditional order and the decree absolute will be known as the final order.These terminology changes may seem minor, but they bring the divorce process into the 21st century. People don’t want to be translating Latin phrases when coming to terms with the end of their marriage. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re going through more easily.”
COMMENT BY: Sam Longworth, Partner and Divorce and Family Lawyer at Stewarts
“The framework for our divorce system dates back to 1973… and the requirement of one party to prove the fault of the other in order to obtain a divorce within two years of separation has seemed very out of sync with modern values and views for a very long time indeed.
“The breakdown of a marriage is always a difficult time for everyone, and the decision to divorce is never one that is taken lightly. Once that decision is made, having to highlight the fault of one party either through infidelity or examples of unreasonable behaviour can create far more difficulties and lead to anger and resentment, which can make the dialogue regarding children and finances more difficult.”
TOPIC The UK Government’s Energy Strategy
COMMENT BY: Mustafa Latif-Aramesh, Legal Director at BDB Pitmans
“The strategy sets out a target for more nuclear – but it’s worth noting the experience of two recent, conventional nuclear projects. The nuclear power station at Hinkley Point C carried out its first consultation in 2009, it then made an application for planning consent in 2011, which was granted in 2013 (with the gird connection granted consent in 2016) and is due to open in 2026. The new nuclear power station at Sizewell C had its first consultation in 2012, applied for its planning consent in 2020, and is due to be decided next month and if consented, built by the early 2030s. It is clear therefore that planning reforms, upscaling of the supply chain and investment are needed to meet the ambitions in the strategy.”
COMMENT BY: Henry Davey, Partner in the Energy team at law firm McCarthy Denning comments:
“The government’s energy strategy strikes me as a lamentable policy judging from its press release. It fails on every leg of the energy trilemma: security of supply, carbon and energy costs.
“The government’s reaction to Putin’s aggression is to build nuclear power stations to be commissioned after he has left office. This is instead of ramping up gas production from the North Sea to assist Germany to turn off Russian gas immediately.
“ Furthermore, an obligation for the oil companies to apply their super profits to carbon projects looks like completely missing from the strategy.
Finally, the government fails to take immediate steps to reduce energy costs. There is no suggestion of a campaign to reduce energy demand, increase efficiency and make sure that the quickest and lowest cost of generation available to the UK – on shore wind – is built right now.”
COMMENT BY: Angus Walker, Partner at BDB Pitmans
“Fracking and North Sea oil exploration are back on the table, nuclear ambitions have returned to the 2008 position instead of embracing new technology, and onshore wind, the fastest and cheapest type of renewable electricity, has been vetoed once again because of outdated views of its costs and acceptability. What’s more, just having targets is not enough – there are no caps on new capacity at the moment – so other measures must be taken to speed up implementation. The move to cut planning times for offshore wind by 75% is intriguing especially given that the government itself has not made an offshore wind planning decision on time since 2015.”
COMMENT BY: Zoe Stollard, Partner in the Energy and Infrastructure team, Browne Jacobson
“It’s great to hear that the Government has taken a clear stance on energy security and that we’re stepping up renewable energy generation across the UK. We expect to see a significant increase in our solar power and onshore wind development work going forward, as well as many other types of renewable schemes.
“We’re also very pleased that the energy security strategy includes building up to eight new nuclear plants in the UK by 2050. We have seen at Hinkley Point C how, not only does large-scale nuclear create low carbon, reliable and affordable energy, it also creates high-quality jobs and drives economic growth. The recent Nuclear Finance Act coupled with government funding support will allow Sizewell C and some of the small-scale nuclear reactors to get off the ground. The UK has operated nuclear power for decades and has in place a well-respected nuclear regulatory system which reflects international best practice and which places an extremely high value on safety.”
TOPIC: The libel proceedings brought by Mohamed Amersi against former Conservative MP Charlotte Leslie and the Conservative Middle East Council (CMEC),
COMMENT BY: Mohamed Amersi
“My objectives all along have been to understand the extent and full nature of the false and defamatory statements which had been published about me; to have the record set straight; to restore my good name; and to receive a full apology. Miss Leslie and CMEC have not taken the opportunity to provide the remedies I seek, leaving me with no choice but to pursue those remedies through the Court.
“Like any citizen, I have a right to defend and restore my reputation when it has been attacked unfairly, and I look forward to the opportunity of having the evidence heard in full in court. I am confident that I will prevail.”
Mr Amersi’s solicitors are Carter-Ruck
APPOINTMENTS OF THE WEEK
Sofia Moussaoui is joining Level as its first family lawyer serving clients in the firm’s core sectors of music, entertainment, sport and technology. .
Previously with Axiom DWFM, Moussaoui’s expertise is in complex and substantial international cases, which includes the resolution of sensitive issues involving children and financial matters. She focuses on developing close personal relationships with her clients and a tactical and intelligence-based approach to litigation. She was the winner of the Lawyer Monthly – Women in Law family lawyer of the year 2017 award and a finalist in the Lexis Nexis Family Awards 2019, International Lawyer of the Year 2019.
“Sofia is an exciting addition to Level’s network since she brings family law expertise for clients within our focus areas of music, entertainment, sport and technology,” said .Morris Bentata, Partner at Level. “This is a significant expansion of our capabilities, and we can now offer our clients an even broader range of legal services.”
Matthew Brunsdon-Tully is joining the Family team at Wedlake Bell as a partner. He will also be Head of Family ADR and Innovation.
Brunsdon-Tully is ‘Top Recommended’ in Spear’s 500 2021 and 2022, has been described by the Legal 500 as being “energetic, empathetic and can always see the bigger picture”, He is also Vice-Chair of the Resolution Pensions, Tax and Financial Remedies Committee.
Brunsdon-Tully was originally a Barrister at 1 Hare Court where he gained expertise in all areas of family litigation including financial remedies, private law children, and jurisdiction disputes. Subsequently he became a Partner at Forsters.
“I am delighted to welcome Matthew to the Wedlake Bell partnership,” said Martin Arnold, Managing Partner at Wedlake Bell. “He is an outstanding lawyer with a wealth of expertise and experience that will add incredible value to the firm’s Family offering.”
E-VENTS
Freezing Eggs and Delaying Fertility: Law, Ethics and Society
Professor Imogen Goold
Monday 11 April 1pm-2pm Gresham College, Barnard’s Inn Hall/ Online/ Watch Later
https://www.gresham.ac.uk/lectures-and-events/fertility-law
In her lecture, Professor Goold will look at how we frequently accept the assumption that women are not properly informed and make poor decisions about how long they can wait to have children, drawing on data about what motivates them to wait, the effect this has on their careers, their understanding of fertility decline, and their attitudes towards their eggs. In other words, this lecture critiques the point of view that egg freezing could give women false hope and encourage delays.
Goold will say that there are some key reasons that women may delay having children: women say being in the right relationship, having financial security, owning their own home, and having access to affordable childcare and flexible working are key.
“Indeed, if we are to empower women and respect their choices, we should presume that whatever choice they make in relation to egg freezing is – in so far as it is based on accurate information – for them in their current situation and relative to the other choices before them, the best option. To prevent her from choosing freely is unacceptably paternalistic, particularly when that the harm she may suffer—the inability to conceive—is a sad, possibly damaging outcome, but a far cry from a choice that may endanger her life. In fact, under English law, she is at liberty to make choices that will end her life. Where only self-harm results, the law rightly places only minimal limits on individual freedom, thereby respecting individual autonomy, including reproductive autonomy. It would of course be far better if women did not need to risk their fertility, but paternalistically reducing women’s options for addressing the challenges they face does not empower them. Far from it.” Goold will say.
Touching on workplaces offering egg freezing, Goold will say: “it is possible that women in the workforce may find themselves under pressure to take up such offers,” however, she will conclude that overall, more choice should be empowering, and “the best solution remains leaving the decision to individual women, but committing ourselves to continue to address those societal barriers that we can address.”
You can sign up to watch the lecture online or in person via the links below;
https://www.gresham.ac.uk/lectures-and-events/fertility-law
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