Edward Fennell’s legal Diary – Edition 102
Friday 29 April 2022
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK: Justice – Still held up in the Post
This week’s Panorama on BBC1 (Monday 8.00pm) was a timely reminder that you do not have to be one of Putin’s thugs to exercise arbitrary power, lie, deceive and undertake actions to imprison the innocent and drive them to despair and even suicide. You can also be a member of the Church of England, a senior IT executive or a lawyer with prosecutorial powers in Her Majesty’s Post Office. In mitigation, the one consolation is that in this country the truth does comes out, sometimes, in the long run.
But that does not necessarily render justice. A statutory inquiry into the Post Office scandal led by former High Court judge Wyn Williams is now under way. But as journalist Javad Iqbal commented in The Times this week, “Is it really too much to hope that someone senior in the Post Office is held to account for this scandal AND SOON?”
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– No Disputing Togetherness at Travers Smith
– Our Man in Moscow (Not)
– Book Now at the Inner Temple
– What happened to the innocence of the Virgin islanders?
+ CONTRIBUTED ARTICLE OF THE WEEK
A DIM FUTURE FOR THE SERIOUS FRAUD OFFICE? ponder Richard Sallybanks and Anoushka Warlow, Associate of BCL
+ SPECIAL REPORT ON LAW IN THE BOX-SET
THE SPLIT: DID IT RING TRUE? by Jayne Martins of Royd Withy King
+ LEGAL COMMENT OF THE WEEK on watching porn at work, NHS Litigation Reform, and the Justice Committee’s report on ‘Court Capacity’
APPOINTMENTS OF THE WEEK at Hogan Lovells and Davitt Jones Bould
LEGAL DIARY OF THE WEEK
What happened to the innocence of the Virgin islanders?
Those of a cynical disposition would have not been greatly surprised that British Virgin Islands premier Andrew Fahie has been arrested yesterday in the United States on charges related to drugs trafficking and money laundering. After all there are plenty of deeply honest and law abiding law firms based on the island who have expertise in highly complex cross-border deals. That’s the kind of thing they do down there.
As one of the last vestiges of empire Whitehall has, over the past year or so, been investigating misgovernance on the island – much to the displeasure of the local political establishment. But they have been in the safe hands of the good old former British attorney general, Sir Geoffrey Cox QC (remember him) who has been representing Andrew Fahie and other government ministers. This latest development should keep them busy for some time to come.
No Disputing Togetherness at Travers Smith
It would have required a heart of stone not to be moved just a little by the Introduction written by Rob Fell , the Head of Dispute Resolution at Travers Smith, to his Department’s very glossy, photograph-heavy annual report. There was, not surprisingly, a massive amount of trumpet-blowing taking place. And why not? you might say. After all they had enjoyed a very good year across a wide spectrum of cases. But the heart-string moment was the celebration of coming back together again as a team.
“The uncertainty on the world stage makes us all the more cognisant of the benefits we as a team enjoy,” declared Fell, “including being in each other’s company again – at our desks, socialising together, dashing between meetings and in Court. The texture of our lives is enriched by all those day-to-day interactions, and by the friendships that are forged on them; this is what makes working at Travers Smith and in our disputes practice so special, and why we are all proud to be part of it. I hope that the photographs in these pages capture some of camaraderie, trust, laughter and fun that we are lucky enough to share here, and which we do not take for granted.”
If it was an argument to get back to the office (even if only occasionally) it seemed to work.
Our Man in Moscow (Not)
Against the horrors taking place daily in Ukraine the vicissitudes of law firms previously active in Russia are of marginal significance. Nonetheless the optics of any contact with Russia have become deeply significant in terms of reputation as the recent experience of Eversheds Sutherland has revealed. Already some in the legal press are suggesting that the closure of western law firms in Moscow is no more than a charade so it was with some urgency that Eversheds this week was forced to rush out a clarification of ‘an apparent misunderstanding around the firm’s previous statement of 25 April 2022’. “Eversheds Sutherland (International) LLP,” the latest release says, “confirms that it has ceased operating in Russia.”
What’s happened, they went on to say, is that its former Russian partners had set up a new outfit called Birch Legal, which had joined Eversheds’ group of 200+ relationship firms around the world ‘which provide support to our clients which have legal needs in jurisdictions where we do not have offices’. Should clients choose to instruct any of our relationship firms, it added, including Birch Legal, “We do not benefit financially”.
In the present circumstances it feels more comfortable to pull the shutters down entirely on all things Russian. But, in brutal reality, the messiness of commercial life makes that impossible. Birch Legal is probably the least worst way forward.
Book Now at the Inner Temple
Like so many of the LegalDiarist’s library books this story is a bit overdue – but better late than never (and we’re happy to pay the fine). To the delight of many legal researchers the Inner Temple Library re-opened last month in its refurbished historic home in Crown Office Row. Like all such refurbishments it has been a long process, having closed in May 2019 and moving to Fetter Lane for the duration so as to allow for the re-development of the whole Treasury Building. “Staff [were] looking forward to being back in the Library’s real home and to welcoming back Library users,” commented the magazine Information Professional.
Mind you it could be argued that the timing of the refurbishment was perfect. As was pointed out, many of the Library’s users would have been unable to visit in any case over the past two years because of Covid. There has to be a silver book-lining somewhere.
CONTRIBUTED ARTICLES OF THE WEEK
A DIM FUTURE FOR THE SERIOUS FRAUD OFFICE?
The Serious Fraud Office has come under tight scrutiny of late. So what is likely to happen next? ask Richard Sallybanks, a Financial Crime partner, and Anoushka Warlow, Associate, at BCL
Last year saw the Serious Fraud Office (“SFO”) suffer the disclosure failures which led to the high-profile collapse of its prosecution of executives in the Serco trial, and to the Court of Appeal quashing Ziad Akle’s conviction following the Unaoil trial.This year did not get off to a much better start. In March, the Court of Appeal quashed the conviction of Paul Bond, one of Akle’s co-defendants, on the basis of the same disclosure issues. Those failings are already the subject of an independent review being carried out by Sir David Calvert-Smith. The report is expected in May and is likely to comment not only on the SFO’s conduct in the Unaoil case, but also on wider issues relating to its policies, procedures and culture. With a separate report (by Brian Altman QC) into the Serco disclosure failures also due in May, the two reports may make for painful reading.
Lisa Osofsky (Director of the SFO for the past four years) has, perhaps unfairly, tried to pin some of the blame for the SFO’s recent failures on the statutory disclosure regime. In evidence to the Parliamentary Justice Select Committee last month she criticised the current disclosure framework for failing to reflect the reality of investigating offences in a ‘data first’ world. Ms Osofsky confirmed that the SFO had written to the Attorney General seeking reforms to the disclosure regime and she has confirmed that a report will be prepared on the current position, but it is reported to be the Attorney General’s view that if any issue exists, it is with the “application of the law, rather than the law itself”.
As for the rest of this year, there are eight SFO trials due to commence in 2022 and if the SFO can successfully navigate those trials, and especially if it can secure convictions, that will go some way to re-establishing some of its lost credibility as an effective prosecutor. That said, for as long as the SFO is operating under the shadow cast by the Calvert-Smith and Altman reviews, success in the current trials may only provide short-term relief.
SPECIAL REPORT ON LAW IN THE BOX-SET
THE SPLIT: DID IT RING TRUE?
In the first of a new series Jayne Martins, a family partner at Royd Withy King examines the legal plausibility of the successful BBC 1 TV Series THE SPLIT (and if you have not seen it. but plan to do so. then we suggest that you look away now!).
The Quest for a Good Divorce
Like many family lawyers, and the general public, I have been glued to series 3 of The Split, the hit legal drama which is currently airing on BBC.
The final season has proved to be highly addictive, entertaining viewing and while many of the plots were somewhat ridiculous, I was impressed with how realistic some aspects of the main storyline, the breakdown of the marriage of the protagonist Hannah Stern, a family lawyer, were portrayed.
At the start of the series, Hannah who is having doubts about the separation, is shocked when her husband Nathan brings his new girlfriend to a dinner they are both attending with friends. Quite how Nathan had managed to keep this relationship a secret from Hannah is beyond me as in my experience the mere whisper of a new love interest sends the jungle drums beating and the news is shared almost immediately with the other spouse. Unsurprisingly, the new partner spells the death knell for the Stern’s marriage, especially when it is revealed that she is pregnant.
I thought the show dealt with this aspect of a relationship breakdown incredibly well. It is very common for new partners to be quickly introduced after a separation and while not a legal issue, I regularly advise clients on how best to deal with this sensitive situation. The emotions are usually raw, painful and uncomfortable for all involved and this was true forHannah, Nathan, their teenage children and the new partner. The key is to understand that there is pain on all sides and to understand that conflict is going to be the only thing that damages children when a relationship breaks down and to respect each other as parents and individuals.
Always a proponent for the ‘good divorce’, I was interested to see whether Hannah would be able to achieve this for her own marriage and not just for her clients. It started well, with the agreement drawn up, but quickly fell apart partly because of Nathan’s highly implausible (but entertaining) choice of lawyer, the formidable, highly litigious Melanie Aickman. The show demonstrated how important it is to get good advice and avoid the ‘Melanie’s’ of this world. A good divorce is not getting every penny from the other side, but allowing both to live independently from each other in a way that is fair and protective of children. In the end, Hannah and Nathan were able to work together as a separated family unit for the children. While far from a fairy tale ending, it was a happy ending of sorts and the show did well to ensure that Sterns put their children first. This was good advice.
LEGAL COMMENT OF THE WEEK
TOPIC: Watching porn whilst at work
COMMENT BY: Daniel Zona, Employment lawyer at Collyer Bristow
“Most employers will have workplace policies that explain how IT and communications equipment provided by a company can be used. They will often explicitly state that the watching or downloading of pornographic material will be considered an act of gross misconduct. Watching pornographic material on a personal device will be no defence, particularly if in an open environment or seen by colleagues.
“Employers will in most instances see this as gross misconduct with the employee dismissed without notice.
“Female colleagues will understandably feel deeply uncomfortable if they see a male colleague opening watching pornography. Employers who do not act could find themselves facing harassment claims.”
TOPIC: The Health and Social Care Committee report: NHS Litigation Reform
COMMENT BY: Qamar Anwar, managing director of First4Lawyers
“It probably isn’t coincidence that this report is published in the same week that the fixed recoverable costs consultation closed; the government is clearly intent on reforming medical negligence.
“As most claimant lawyers in the sector will testify, however, NHS Resolution’s inability to accept liability even in the face of overwhelming evidence is a key reason why so many cases drag on longer than they need to. Its own report last year confirmed that NHS legal costs were rising while claimant costs were on the decline.
“The report says the new system would prioritise learning from mistakes, which should surely be the case already. It references birth injury cases which unsurprisingly cost the NHS the most to resolve and can take a long time to reach settlement, largely because it can take years to fully assess the extent of the damage done. Furthermore, it says compensation for ongoing care needs should be based not on private providers but on the top-up care available through the NHS and social care – two systems which have already been pushed to the brink of collapse.
“MPs should understand that victims invariably don’t want to go to court, they just want answers. In many cases, they have to fight to get them, which we agree is wrong.
“Lawyers fight for their client’s needs, helping them to uncover the truth, highlight injustices and drive learnings so mistakes are not repeated. They also do an enormous amount of due diligence to filter out spurious cases at the outset. To replace them with an administrative body which is part of the NHS is akin to letting the fox guard the chickens.
“The current system may not be perfect, but MPs should instead consider why so many people feel litigation is their only option rather than taking that option away.”
COMMENT BY: Kris Kilsby, Council Member, Association of Costs Lawyers
“Though we recognise that the government wants to reduce what the NHS spends on clinical negligence claims, this debate boils down to what is right for the injured person. These claims may be relatively low value, but they are not low impact and negligence victims need to be able to seek justice.
“Fixed recoverable costs are a very blunt instrument that may work in areas where the course of claims is relatively predictable – such as road traffic accidents – but not in a much more complex area like clinical negligence.
“Our members are experienced and knowledgeable about costs and are able to greatly assist the court to ensure that costs in such cases are kept to reasonable and proportionate amounts. Introducing FRC will remove this level of check and balance and could lead to unjust results in respect of costs recovery which could ultimately lead to an impact on access to justice.”
COMMENT BY: Stephanie Prior, head of clinical negligence at Osbornes Law
“If MPs really want to ensure ‘the prevention of future harm’ then the first thing they need to do is tackle the chronic underfunding of the NHS and the shortage of staff that leads to errors that cause so many thousands of patients pain and suffering.
Reducing the compensation bill for the NHS will not solve the fundamental issue of a service buckling under the strain of the untold pressure of staff shortages, resulting in unnecessary and avoidable deaths and life changing injuries for those affected by negligent medical care. These suggestions are tantamount to putting a plaster on a gaping wound and will not ensure less mistakes happen.
“While it is true that legal costs are high, this is often down to NHS lawyers dragging out cases for an inordinate amount of time, so anything that shortens the process has to be welcomed. However, reducing the amount of compensation patients receive is rubbing salt in the wounds of people who have already suffered enough. The idea that an independent administrative body should be set up is utterly ridiculous and will be a waste of money. The fact is lessons could and should be learnt from Serious Untoward Incident (SUI) reports and internal investigations and a new body isn’t going to make the situation any better.”
COMMENT BY: Nick Grant, Managing Director at clinical negligence firm, Devonshires Claims
“These ‘let’s save the NHS money’ headlines always sound great on the surface, but the real risk is that the patients, who have had their lives irreparably damaged, are overlooked. Until such time as Government and highly paid NHS managers get to grips with the reasons behind these claims, such as a chronic shortage of staff, outdated policies and a lack of training, then a superficial overhaul of the compensation process is just going to leave seriously injured patients with no real access to justice. Is handing this role to an ‘independent’ body, funded by Government with the express aim of reducing costs, really what these patients, their lives ruined through no fault of their own, deserve? I don’t think so. We are dealing with human beings here, not just statistics.”
TOPIC: The Justice Committee’s report ‘Court Capacity: Sixth Report of Session 2021-22’
COMMENT BY: Dr Natalie Bryom, Director of Research and Learning, The Legal Education Foundation
“The Legal Education Foundation welcomes this important report from the select committee. It rightly exposes how poor data collection from across the justice system continues to undermine the ability of the MoJ and HMCTS to predict and respond to problems relating to court capacity.
“As I said in my evidence to the committee, the absence of data and robust governance for managing data has a direct cost in human terms on victims, witnesses, defendants and all those who use the court system – and weakens our ability to shape a more effective and accessible justice system for the future.
“The committee reflects the findings of the Foundation’s report for HMCTS in 2019 to improve data collection and governance and I fully agree with the committee’s view that addressing this problem requires ‘a sustained focus and significant investment’. I hope that the MoJ and HMCTS will now take forward the report’s recommendation to ring-fence funding ‘to expedite work to deliver on its commitment to improve data’ and publish a detailed timetable to ‘ensure it is accountable for progress’.
“No other public service would be permitted to operate with the dearth of essential data and information that exists across our courts. Addressing this is essential if we want a justice system that delivers for users and wider society alike.”
COMMENT BY: Professor Chris Bones, Chair of CILEX (the Chartered Institute of Legal Executives)
“This report once again highlights the huge challenges facing our courts system and the desperate need for a sustainable long-term approach to growing the capacity of the courts.
“One immediate action that could be taken is widening the pool of available prosecuting lawyers by creating a fresh pipeline of recruits. At present, there are far too many capable and qualified lawyers, many acting as Associate Prosecutors, who can’t progress their careers to become Crown Prosecutors. If the legislative barrier on CILEX members’ eligibility to become Crown Prosecutors was removed, a new supply line of lawyers to meet the justice crisis would be enabled, with the public purse actually saving money by removing the needless present route of retraining them to become solicitors in order to do so.”
LEGAL APPOINTMENTS OF THE WEEK
Paul Akehurst has been appointed by Hogan Lovells as the firm’s new Head of Sustainability. He will be based in the firm’s London office and will work closely with other members of the firm’s D&I and Responsible Business team.
Akehurst joins the firm from JLL, where he was regional operations lead for energy and sustainability services, supporting a range of corporate clients in all aspects of sustainability ranging from Net Zero Carbon strategies to enhancing social value. He has a strong technical background in building design, energy and carbon management, and environmental assessment and is able to draw on more than 35 years of experience developing sustainability strategies and implementing engineering solutions to improve the operational performance of the built environment.
“At Hogan Lovells we are committed to operating our business sustainably,” said Susan Bright, Global Managing Partner for Diversity & Inclusion and Responsible Business. “Delivering on our commitments to D&I and Responsible business is one of the firm’s five strategic priorities. We are delighted to welcome Paul to help us on our journey to support the achievement of the UN Sustainable Development Goals and to help both people and planet prosper.”
Rima Gasperas has been appointed as a Partner by Davitt Jones Bould (DJB), the UK’s largest firm specialising entirely in real estate law. Gasperas has over 20 years’ experience in commercial property law with a focus on the retail sector and is regarded as a leading specialist.
She joins from Keystone Law where she represented both landlords and tenants and has a wealth of experience in property insolvency issues. She has also dealt with leases and land acquisitions related to the renewable energy sector.
“We continue our successful strategy of hiring top candidates in real estate law, which is in line with DJB’s people-centric business model,” said Peter Allinson, the firm’s Chief Executive Officer. “We only engage senior professionals with more than 10 years’ post qualification experience; and we free them of any supervision, management or business development responsibilities. This gives our lawyers the opportunity to offer their full attention to clients and provide them with the best legal advice available in the market. We look forward to working with Rima.”