Edward Fennell’s Legal Diary – Edition 101
Friday 22 April 2022
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK
Crystal ball gazing has always been a difficult art but made almost impossible when the crystal ball itself is smashed and shattered into fragments. One of those fragments is the cost-of-living and inflation. Another is still marked Covid. But the biggest and most jagged is a bloody Ukraine.
All of these represent a world of uncertainty for lawyers. But what does look certain is that the horizons within which Western lawyers can operate are contracting and that globalisation is at an end for the foreseeable future. The urgent drive for greater self-reliance in the West and the draining of trust from autocratic regimes suggest that the vision of a rules-based global future is crumpling. Even in the leafy suburb of Wimbledon the rules are becoming arbitrary. So will participation in the courts become smaller as force majeur takes charge?
The LegalDiarist
LEGAL DIARY OF THE WEEK
– Thomson Reuters Institute (TRI) Tells It Like It Was
– Wild at Heart at Hogan Lovells
– Solicitors’ Charity Stumps Up Less
– Baker’s Partner Makes Her Mark
– Conversion Course for Social Welfare Legal Workers
– Good excuse for not Jubileeing
– Clarke Willmott – Bowled Over
LEGAL COMMENT OF THE FORTNIGHT including the Assange case and Funkypigeon’s cybersecurity issue by Mishcon De Reya, Fladgate, First4Lawyers and Wedlake Bell
CONTRIBUTED ARTICLE OF THE WEEK
TRUST REGISTRATION SERVICE EXPANSION COULD AFFECT THOUSANDS warns Ben Taylor
APPOINTMENTS OF THE WEEK at Morgan Lewis and Shakespeare Martineau
E- VENTS including Swedish Ambassador to speak to Leeds lawyers about Ukraine and the Chartered Institute of Arbitrators’ Panel
LEGAL DIARY OF THE WEEK
Thomson Reuters Institute (TRI) Tells It Like It Was
A week is a long time in politics and three months is certainly a long time in the world of geo-politics. So while there is much to digest and appreciate in the 2022 ‘State of the UK Legal Market’ review from the Thomson Reuters Institute (TRI) the ‘elephant in the report’ is the complete absence of any reference to Ukraine or the new world economic order which we are entering. One cannot blame TRI for that – the research involving 265 senior corporate counsel and 29 global law firms was obviously undertaken some time ago – but the absence of any reference to, for example, major changes in the oil or gas market gives a slightly unworldly feel to the analysis. The irony is the report highlights, as a generality, the huge emphasis now placed by UK clients on ‘a law firm’s ability to grasp the strategic business challenges with which those clients are wrestling and are seeking a lawyer’s skill in packaging commercial solutions’.
“Law firms need to target their services to the areas in which clients most need assistance in order to better capture a larger share of this spending,” says the report. How law firms can calibrate their Eastern European services in the years ahead is going to be one of the most challenging issues for law firms’ management. It will be fascinating to see what Thomson Reuters has to say about it this time next year.
Download the State of the UK Legal Market 2022 report.
Wild at Heart at Hogan Lovells
As all good environmentalists know, today is EARTH DAY with the theme of “Invest In Our Planet” – and to mark the occasion Hogan Lovells is introducing phase two of its “Rewilding Hogan Lovells” initiative.
This does not mean allowing the weeds to grow outside their offices – as seems to be the case in the LegalDiarist’s manor where ‘Wilding’ is all the rage at the local council – but, instead, focuses on ‘preserving healthy ecosystems and cultural heritage in the Arctic North’ and co-operating with re-wilding organisations.
The favourite project right now is the Snowchange Cooperative in Selkie, eastern Finland, a non-profit cooperative representing northern Indigenous and local communities across the Arctic and boreal which is rewilding a former peat extraction site in Linnensuo. In the front line will be the reindeer-herding Sámi who are described by the firm as ‘the only indigenous people of Europe’ (although it is not clear to the LegalDiarist where that leaves the native Irish, Scots or Welsh).
Meanwhile back on its home-turf, so to speak, the firm is starting to work with ‘Rewilding Europe’ to support the further development of rewilding across Europe through pro bono legal advice. The firm is also sponsoring a six part film series showcasing the vision for rewilding specific landscapes.
“This helps to position our firm as a driver of nature-based innovations to tackle the rapidly advancing climate crisis, as well as aiding the crucial protection and restoring of biodiversity,” said Philip Brown, one of the sponsoring partners, “Our continuing support highlights our firm’s strategy of supporting innovation in environmental protection and advancing our sustainability goals and complements our efforts to operate our own business more sustainably.”
Everyone at Hogan Lovells is expected to dedicate at least 25 hours each year to approved pro bono and community investment work including rewilding.
Solicitors’ Charity Stumps Up Less
Demands on the support offered by The Solicitors’ Charity eased very slightly last year compared with the £1,109,507 awarded in 2020 at the height of the pandemic. Instead, as reported in the charity’s annual Big Report, in 2021 it handed out £1,024,218, a drop of £85K.
Significantly, for the first time in five years, more men (54%) requested support than women (46%) with ‘one-off’ financial awards covering a range of necessities, such as household equipment and medical aids. Also of potential significance is that for the first time, in 2021, the majority of new cases were solicitors identifying as black, Asian or from another ethnic minority background. Just 47% identified as white.
The report also shows that more people under the age of 60 were supported in 2021, compared to 2020, with seven in ten new applicants being in their 50s or lower. It also highlighted that most of the charity’s primary beneficiaries work for small firms or are sole practitioners.
“The charity’s support is now increasingly more tailored to the individual client,” said Nick Gallagher, The Solicitors’ Charity Chief Executive, “with 34% being spent last year on one-off awards rather than daily living allowances and other forms of support.
“We support solicitors in more ways than just providing financial support. Some of the things we have purchased that make a difference to our client’s lives include wheelchairs, physio equipment, domestic boilers, cookers and carpets.”
Advice and counselling is also a core part of the support which is available. The organisation LawCare was helped by the fund to support the mental health and well-being of 342 solicitors while17 solicitors in need of career counselling were referred to Renovo and 43 were given financial and debt advice.
Download your copy of Support for Solicitors: The Big Report here: https://thesolicitorscharity.org/big-report/
Find out more about The Solicitors’ Charity by visiting https://thesolicitorscharity.org/
Baker’s Partner Makes Her Mark
Congratulations to Rachel Wilkinson-Duffy (above, receiving her badge of office), a partner with Baker McKenzie, who has been elected as the President of The Chartered Institute of Trade Mark Attorneys (CITMA). She succeeds Richard Goddard.
Wilkinson-Duffy has had an interesting career having joined CITMA as a Student member in 2004 while working as a legal secretary for a boutique trade mark firm. She qualified as a trade mark attorney in 2010 and obtained higher courts litigation rights in 2013.
“I will work to continue to empower newly qualified practitioners to embrace taking advantage of the full range of their advocacy and litigation rights, as well as ensuring the trade mark attorney profession is at the forefront of attracting diverse new talent,” she said, adding that rights of representation before the UK IPO is a live issue for CITMA’s members and the IP sector, and one that she is determined to take forward.
“I want to ensure the views of the trade mark legal profession continue to be heard by the UK IPO and that the best outcome is achieved from its ongoing digital transformation project,” she said.
Conversion Course for Social Welfare Legal Workers
The Social Welfare Solicitors Qualification Fund (SWSQF) has secured funding for a first cohort of 22 social welfare legal workersto undergo conversion courses into social welfare solicitors.
Supported financially by 18 major law firms and the City of London Solicitors’ Company Charitable Fund the SWSQF aims to make dozens of awards annually so as to cover selected candidates’ full training and assessment costs. They will study part-time while continuing to work in their current social welfare roles. Once they are qualified it is estimated that each of the new social welfare solicitors will deliver over 1,200 social welfare law hours annually.
“The Social Welfare Solicitors Qualification Fund is a great initiative and really important,” said Dame Alison Saunders, Partner, Linklaters LLP and former Director of Public Prosecutions. “I have seen first-hand the impact of not having enough criminal legal aid lawyers who are vital to ensuring that all members of society have access to justice which is a fundamental part of the rule of law. I welcome legal organisations financially supporting the initiative.”
Meanwhile Dan Carden, MP for Liverpool Walton, said, “Removing barriers to entry to the [legal] profession will help to alleviate difficulties in accessing advice, particularly following the pressures of the COVID-19 pandemic. I am proud to give my support to a scheme that will help qualifying solicitors provide constituents, like mine, with the advice they need so desperately.”
The SWSQF is led by the City of London Law Society in partnership with legal training provider BARBRI and Young Legal Aid Lawyers.
AND SOME QUICK UP-DATES FROM LAST WEEK
Good excuse for not Jubileeing
Herbert Smith Freehills has announced a new initiative to offer its employees in the UK more flexibility around public holidays.
In effect they will be able to swap three public holidays each year for days off elsewhere in the same calendar year. And for 2022 that will include the Platinum Jubilee bank holiday. So staff can absent themselves from the public celebrations with a clear conscience (along with Harry and Meghan). ‘Street party? Sorry, I’ll be in the office’.
Clarke Willmott – Bowled Over
Given the state of English cricket it needs all the help it can get. So down in the West Country there have been whoops of joy that Clarke Willmott has renewed its partnership with Somerset County Cricket Club (SCCC).
Having provided the Club with legal advice for over 30 years, the firm will remain as SCCC’s Preferred Legal Partner.
“Following what has been another challenging year for the Club and the country as a whole, we are delighted to have again renewed our long-standing partnership with Somerset County Cricket Club and are very pleased to remain as their preferred legal partner,” said Chris Thorne, partner and head of Clarke Willmott’s Taunton office. “Having spent a day sitting in the sunshine enjoying the pre-season warm up against Gloucestershire, I can recommend the restorative qualities of watching cricket as an antidote to all that has been going on around us.”
Yes, but has he watched England recently?
LEGAL COMMENT OF THE FORTNIGHT by Mishcon De Reya, Fladgate, First4Lawyers and Wedlake Bell
TOPIC: The decision of the Westminster magistrates’ court to ap, prove the extradition of Julian Assange to the US
COMMENT BY: Thomas Garner, Extradition Partner, Fladgate
“Assange is notionally a step closer to extradition to the US, however there could still be additional traction in this case. Assange’s lawyers have already indicated that they intend to launch a further challenge at the High Court.
“He may have another opportunity to avoid extradition as the line of challenge terminated by the Supreme Court ultimately followed a victory at first instance by Assange. In that decision, Assange won on a single point but lost on several others. The Magistrate’s decision to block his extradition was appealed by the US, but Assange did not himself make a cross appeal on the other matters. It is here that his team will focus their fire now.
“Eyebrows will be raised at the amount of time Assange has managed to secure in the UK since he emerged from the Ecuadorian embassy but he undoubtedly remains in a very precarious position.
“If the High Court were to refuse permission to appeal then he would reach the end of the line domestically, but if he succeeds in securing permission to appeal then his challenge could last for many months yet. The saga continues for now.”
TOPIC: Funkypigeon.com’s suspension due to a cybersecurity incident
COMMENT BY: Mark Tibbs, Cyber Intelligence Director at MDR Cyber at Mishcon De Reya
“Cyber attacks are now unfortunately a part of the modern business risk landscape. While we don’t currently know the extent of the attack against Funkypigeon.com, businesses should consider the risks of cyber extortion, fraud and data breaches as part of their incident response planning.
“To minimise disruption to customers and losses to the business, teams should be prepared to tackle these incidents with both a well-drilled technical response to recover systems, but importantly also a response to pursue legal options such as recovery of lost funds.”
TOPIC: The data from the third quarter of operation of the Official Injury Claim portal.
COMMENT BY: Andy Cullwick, First4Lawyers
“The MoJ has tried to brush off the underwhelming statistics as teething problems, but that’s wearing thin nine months in and with no sign of improvement.
“Rather than eliminating fraudulent cases, could the fall in claims be down to the disastrous system which has proved so complicated to use that people instead choose not to bother? We simply don’t know.
“What we do know is that it has failed from Day One and if those in charge are genuine about delivering access to justice, they will accept responsibility for its failure and take urgent steps to try and fix it.”
TOPIC: Claims that Apple was able to access personal information on workers’ phones after a privacy complaint was lodged by a whistleblower.
COMMENT BY: Alexander Dittel, data protection partner at Wedlake Bell
“Accessing information on a personal device without a good reason, appropriate notice and protections against function creep is inconsistent with data protection laws and indeed human rights. We do not know enough to comment on the complaint at this stage but if the allegations are true there will certainly be a public interest in investigating them.
“Modern technologies often enable new functionalities which cross the boundaries of lawfulness regardless of the best intentions of innovators. Any access to private data will likely be judged on the scope of the interference with privacy, the objectives pursued and the individuals’ reasonable expectations. Limited access to technical data will not cause as much upset as deliberate excessive access to private data. However, if any wrongdoing is indeed proven, it will not have been the first time for a US corporation to misjudge the balancing tests which are so crucial to European data protection laws.”
CONTRIBUTED ARTICLE OF THE WEEK
TRUST REGISTRATION SERVICE EXPANSION COULD AFFECT THOUSANDS warns Ben Taylor, associate solicitor at Roythornes Solicitors,
THE TRUST Registration Service (TRS) was set up in 2017 as part of an anti-money laundering directive. However, recent changes to the Trust Registration Service have been difficult for experts to interpret, which realistically means that people with joint ownership arrangements and other trustees will find it very difficult to independently assess their situation.
In a timely manner, the Law Society has published guidance that has helped practitioners gain clarity on the new legislation and it is our hope to bring attention to these changes to help ensure people don’t have a nasty surprise.
Now that many more trusts are required to register, people are most likely to find themself facing the question of registration if they own property jointly where one person holds for themselves and another. So, for example, where a couple marry, the wife already owning a property gifts 50% to her new partner, without updating the legal title. Of course, this is only an example, and the rules affect civil partnerships, cohabitees, and people not in relationships equally.
In a marriage or civil partnership scenario, the gift itself would typically fall within the exemption for Capital Gains Tax and usually there will be no need to update the title at the Land Registry. Very often, such gifts are completed by a Declaration of Trust, whereby the person making the gift declares that they hold the property on trust for themself and for their partner in whatever proportions they decide.
It is now understood that such trusts, both new and existing, are required to register with the TRS. However, there are two exceptions. One is where the legal owners and the beneficial owners are the same, so if in the aforementioned example the legal title was updated so both individuals were registered as legal owner, that would be excluded from the requirement to register.
The second is where a statutory trust has arisen. In respect of that arrangement, only four people can be registered on the legal title to property, so a legal trust arises where property is owned by, say, five people.
It will be important for people outside of the exceptions to consider the costs of registration, the ongoing administration requirements, and the possible access to the TRS by others involved with money laundering investigations, compared with the costs of registering new legal owners.
“In most cases, updating the Land Registry title to include all names will be the simpler, long-term option.
Generally, for existing registrable trusts, registration is required by September 2022. For arrangements created after 4 June 2022, it is within 90 days of creation or meeting the criteria for registration. Failing to register may result in a penalty.
Where the lead trustee registers up to three months from the due date a £100 penalty is possible, moving up to a £200 penalty three-to-six months after the due date, before becoming a penalty of £300 or five per cent of the tax liability depending on whichever is the greater sum when registered more than six months late.
HMRC has historically been lenient with penalties, but people should not rely on this.
My advice for people with this sort of arrangement is to consider the issue of registration as early as possible, so that regardless of whether or not you wish to register your trust you have allowed adequate time to receive advice and support making the necessary changes.”
APPOINTMENTS OF THE WEEK
Richard Hanson (below) is joining Morgan Lewis as a partner in its London office where it is expanding its global structured transactions practice.
Previously with Orrick, Hanson has extensive experience in representing private funds on structured credit matters and securitisation transactions,
“Rick brings strong synergistic opportunities to collaborate with colleagues in our investment management practice,” said Morgan Lewis Chair Jami McKeon. “His capabilities both broaden and deepen our strength and the services we provide to our fund clients in an important jurisdiction.”
Frances Murphy, managing partner of the London office, commented, “We look forward to welcoming Rick as our most recent addition in London. His skillset overlaps nicely with our service offerings for our global financial institution and fund-related clients.”
Other recent additions to Morgan Lewis’s structured transactions practice includes Steven Becker and Alex Velinsky in New York and Washington, DC, respectively.
Catherine Rustomji (below) is joining Shakespeare Martineau to head up the firm’s national charity team.
Previously a partner and charities practice head at Browne Jacobson, Rustomji has been exclusively advising charities, social enterprises and not for profit organisations (specialising in charity law and governance, not for profit legal structures, trustee training and board development) for more than 20 years. Prior to that she worked at DWF, Hempsons, Dickinson Dees and Stone King, and was a charity trustee for Yorkshire Cancer Research.
“Shakespeare Martineau is a focused firm, which has a clear strategy for its people and itself, so I am delighted to be working at the core of a strong team to offer a complete service to our charities and not for profit clients,” said Rustomji.“Operating in the charity and not for profit sector has never been more challenging or more stimulating, with social, economic and political upheavals, scarce resources, and mounting needs and expectations.”
E-VENTS
SWEDISH AMBASSADOR CALLS OUT PUTIN IN LEEDS
On Monday next (25 April 18:00 – 19:30) as part of Leeds Beckett University’s Leeds Law School’s ‘Law in Practice’ lecture series, Ambassador Ehrenkrona of Sweden will share a legal breakdown of the invasion in Ukraine, examine the Crime of Aggression and answer the question, can Putin be prosecuted?During his career, Ambassador Ehrekrona served as Director-General for Legal Affairs in the Swedish Ministry for Foreign Affairs. Throughout his career, he represented the Swedish Government in cases before international courts including The European Court of Human Rights in Strasbourg and the European Court of Justice in Luxemburg. He worked on cases before the UN Human Rights Treaty Bodies and represented Sweden in the UN Sixth Committee.
He also represented Sweden in the final stages of the negotiations on the Crime of Aggression and the subsequent amendments to be included in the Rome Statute.
The lecture is free. To book tickets visit: https://www.eventbrite.co.uk/e/the-invasion-of-ukraine-russia-the-international-criminal-court-and-putin-tickets-311903300167
The Chartered Institute of Arbitrators’ Panel Discussion on the best forum for low-value disputes.
26th April at 6:30pm-8pm at the Stevens & Bolton offices in Guildford
Panellists include arbitration experts Michael Frisby (Partner at Stevens & Bolton), Kim Franklin QC (Crown Office Chambers), Matt Molloy (MCMS Ltd) and Alice Sims (Keating Chambers)
The debate will address which jurisdiction can best solve lower-value disputes, with litigation, arbitration, adjudication and mediation each having their merits analysed. Each expert will advocate for one jurisdiction, with the audience voting for the best method.
The session is open to non-members across the industry.
For more, contact Harry Rogers, Senior Account Executive
Farrer Kane Tel: + 44 (0) 20 7415 7154 Mob: +44 (0) 7887 378 968
We hope that you enjoyed your Easter break. We had a great time on the Watercress Steam line and at Danebury Hill Fort in Hampshire. Nonetheless we look forward to returning next week.