Edward Fennell’s Legal Diary – Edition 12
SHORT THOUGHT OF THE WEEK
It has not been a good week for the British administrative establishment. Monday evening’s television schedule highlighted the Great Post Office scandal and the ‘Limbo’ experience of the Windrush generation. In both cases officials and government politicians came out of it poorly. Ordinary members of the public were abused and then abandoned. Aside from the victims only the lawyers were the heroes.
Then we heard of the Ministry of Justice’s decision to remove alternative dispute resolution from the incoming whiplash portal. It’s a small but typical example of the same mind-set. “It is a disgrace that the government is turning its back on a fundamental part of their proposals just because it is ‘difficult’ to achieve,” responded Qamar Anwar, managing director of First4Lawyers. “The message is simple, try harder. The government seems intent on creating yet more ‘David v Goliath’ inequality in the justice process by allowing innocent accident victims to fend for themselves against insurers.”
Mind you, with a good slingshot – aka lawyer – David can win in the end. But by heaven it’s a soul-destroying process.
The Legal Diarist
THIS WEEK’S CONTENTS
+ THE LEGAL DIARY OF THE WEEK
+ LEGAL REPORT OF THE WEEK – ‘REFORMING LEGAL SERVICES’
+ LEGAL COMMENTARY OF THE WEEK – TEST AND TRACE?
+ PRO BONO PROJECT OF THE WEEK – CMS
+ THE LAW BUSINESS – WORKING ACROSS JURISDICTIONS
+ ARTWORK OF THE WEEK – HOGAN LOVELLS
THE LEGAL DIARY OF THE WEEK
LOVE THE V SIGN IN COURTS
One encouraging sign of ‘green shots’, we guess, is that the courts would be back in business big time. And that is what is happening according to research from law firm HFW and litigation analytics company Solomonic who say that activity in the English Courts has recovered to pre-Covid-19 levels. This follows a sharp slump during the height of the outbreak.
“At least 70 new claims were filed in the English Courts in each of the last three weeks of May, according to Solomonic data, having previously fallen below 30 new claims per week in March – a drop of 56% on the previous year. The English Courts are now slightly busier than they were at this point in 2019 (61 new claims per week on average) and 2018 (63 new claims per week on average),” says HFW.
Damian Honey, Dispute Resolution Partner at the firm, added, “The current uptick in claims being filed in the English Courts suggests that the market is now coming out of that initial crisis stage. Businesses are starting to look ahead more confidently and consider issuing proceedings – particularly in relation to contractual issues that have arisen due to the outbreak.The high levels of market uncertainty mean that disputes activity could remain patchy over the coming months, but we ultimately expect the market consequences of Covid-19 to result in a surge of litigation and arbitration.”
So let’s all welcome the (admittedly jagged) V-shape graph below.
BREAKING UP IS NOT SO HARD TO DO
When we exit this Corona crisis and the word ‘Lockdown’ has disappeared from the popular vocabulary, people are still going to look back on the Summer of 2020 as a time of critical change in British social life. Because, rather like the 1944 Education Act, the vote in favour of the Divorce, Dissolution and Separation Bill (which had its second reading in the House of Commons a few days ago) will transform how fractured couples manage the conclusion of their relationships.
“The real impact is to reduce the areas that divorcing couples need to argue about and research has shown that the current need to find fault heightens tensions and creates unnecessary animosity,” said Julian Hawkhead, Senior Partner at Stowe Family Law. Meanwhile Alex Carruthers at Hughes Fowler Carruthers commented, “Although opponents to the law suggest that it will make divorce easier, in fact what it does is make it less divisive. That must be a good thing.”
Simon Beccle of Payne Hicks Beach, one of the lawyers involved in the landmark Owen divorce case which acted as a catalyst in highlighting the shortcomings of the current system, was clear about the benefits. “Once, hopefully, this no-fault or no-conduct divorce legislation has been brought into effect, couples will be able to divorce with greater dignity without them having to trawl over their conduct or behaviour towards one another and attribute blame for the breakdown, which often has a negative effect at the outset of proceedings and so often damages efforts to resolve issues relating to finances and children.“
But almost the last word must go to Tini Owens, the woman involved in that case. “My devastating experience going through the divorce courts left me trapped in my marriage and unable to move forward with my life. I am so pleased with today’s vote to bring in legislation which is fit for the 21st Century and which should mean that in the future, couples will not have to go through the unhappy, long, arduous and expensive divorce process which I have had to endure and which I would recommend to no-one.”
According to the Office for National Statistics, there were 7.5 divorces of opposite sex couples per 1,000 married men and women in 2018. It will be interesting to see how – if at all – the figures move following this expected change in the law. Simon Bassett of Royds Withy King supports the proposed changes but counsels those considering a divorce at this time that they should try to step back from the current situation, as it may be that any issues that have surfaced are due to the stresses surrounding the situation at present. “It is important to be open and honest with each other as it may be that the issues are something that you can work through with a counsellor or therapist,” he advises. Sounds prudent.
MIXED SOUNDS IN THE ECHO CHAMBERS
Professor Stephen Mayson’s much anticipated report on future regulation of the legal profession ‘Reforming Legal Services: Regulation beyond the echo chambers’ has appeared this morning. The early signs from the first responders is a broadly supportive but nonetheless mixed reaction.
From Professor Chris Bones, Chair of Chartered Institute of Legal Executives (CILEX) it was a green light. “The measures included in this report that will protect consumers, open the market further to full competition and ensure that legal services as an industry remains a competitive sector for the UK, are all welcomed by CILEx and by CILEx lawyers.”
By contrast Sheila Kumar, Chief Executive of Council of Licensed Conveyancers (CLC) was not so supportive. “Stretching a single regulatory framework across the full range of legal services is not an obvious solution to the needs of a dynamic legal sector. Our approach to having different levels of qualification, cited in the report, shows the benefit of a diversity of approaches by different regulators so allowing innovative solutions to develop.”
Meanwhile Claire Green, chair of the Association of Costs Lawyers, seized the opportunity to have a little dig at solicitors. “Professor Mayson…notes how errors from ‘dabblers’, including solicitors, can lead to significant and avoidable shortfalls in costs recovery, to the detriment of lay clients.“ But she went on to add, “There is much to digest in his report about the overall structure of legal regulation, and it will hopefully form a major stepping stone to a regime where those needing advice on costs receive it from those who have demonstrated their expertise and have proper consumer protections in place. We also strongly welcome his call to protect all legal professional titles, including that of Costs Lawyer.”
See below an article from Profesor Mayson outlining his recommendations.
NCDV SUPPORTS HIGH COURT CHALLENGE TO LEGAL AID RULES ‘DEATHTRAP’
Among all the demands for the ‘defunding’ of the police – mainly in the USA but also in the UK – it should not be overlooked that this country has already massively defunded the Justice system – and has been doing so for over a decade.
Evidence for that is well known and frequently discussed but one little-known gap is in the Catch-22 over access to legal aid by women involved in domestic violence litigation.
Basically if you are a home-owner then you will be deemed to be able to fund yourself and will not be eligible for legal aid. But, in reality, capital which is locked up in bricks and mortar is not readily available to pay lawyers’ bills. So the money you notionally have disqualifies you from accessing legal aid even though, almost by definition, it is not available in practice. That is whythe Guildford-based National Centre for Domestic Violence (NCDV) earlier this week strongly supported a lone woman’s High Court challenge to the current rules.
“This challenge is hugely important,” says Mark Groves, the NCDV chief executive. “It is no exaggeration to say that in some domestic violence cases, where speed of protection is key, the current legal aid rules can amount to a deathtrap.”
The case involving “Claire” (not her real name) is very typical. Claire has two children and is on Universal Credit but cannot get the legal aid she needs for proceedings against her ex-partner because she has equity in the home she co-owns with him.
In this case, the family home may also be subject to further legal proceedings – for which she may require legal aid – and she also cannot borrow against its value because that would require her ex-partner’s consent.
“The so-called ‘capital’ that victims have on paper but cannot get at becomes a cruel trap from which there is no escape.,” said Mark Groves. “It dissuades victims from protecting themselves or leaving the home. It is time that the High Court looks at this issue afresh.”
LEGAL REPORT OF THE WEEK – ‘REFORMING LEGAL SERVICES’
THE INDEPENDENT REVIEW OF LEGAL SERVICES REGULATION
Two years in the making the final report of the Independent Review of Legal Services Regulation has now been submitted to the Lord Chancellor. Its author Professor STEPHEN MAYSON sums up here its findings in what could be a game-changing development for the legal industry.
The key proposal in this week’s Independent Review is for the registration and regulation of ALL providers of legal services, whether legally qualified or not, with a base level of regulation for the lowest-risk services. And regulation should be the responsibility of a single, sector-wide, regulator to ensure a common, consistent and cost-effective approach, subject to a statutory duty to apply only the minimum necessary regulation.
Risk should be assessed by reference to the public interest or to the potential for detriment to consumers. Regulatory obligations should be targeted on the risks of what practitioners actually do, and be proportionate in burden and cost to those risks. Higher-risk activities would attract additional regulatory attention.
Regulation could then reflect the circumstances, vulnerability and challenges inherent in the life-events of consumers. A more inclusive approach to regulation would also offer the prospect of investigation and redress for all individual consumers and small businesses, irrespective of the source of their legal advice.
The proposals would, however, still allow professions to maintain and promote higher professional standards than those required by the regulatory minimum.
Finally, while the principal focus of the report is on longer-term reform of the regulatory framework, the Covid-19 pandemic has accelerated the need for change. The likely increase in use of ‘unregulated’ providers and technology at a time of personal, social and economic instability in the lives and circumstances of both consumers and regulated providers suggests a need for short-term reform to regulation.
The report, therefore, also recommends a new ‘parallel’ structure. This would leave the currently regulated untouched, but bring ‘the unregulated’ (including online services) within a short-term version of registration and access to ombudsman investigation and redress.
The report is available at: https://www.ucl.ac.uk/ethics-law/publications/2018/sep/independent-review-legal-services-regulation.
Stephen Mayson is Honorary Professor, Faculty of Laws, University College London
LEGAL COMMENTARY OF THE WEEK
– ‘TEST AND TRACE’ WHAT’S LEGAL ABOUT THIS?
The introduction of ‘Test and Trace’ to stop the spread of Covid-19 is proving problematic all round. It’s not just that there has been the usual organisational road-crash but, more seriously in many respects, there are some fundamental issues of data protection law being overlooked under the cover of protecting public health. Here AARON MOSS, barrister at 5 Essex Court, unwraps the problem.
“The Open Rights Group’s primary challenge to Test and Trace is that the agencies have not carried out a Data Protection Impact Assessment. A DPIA is required by Article 35 GDPR where the data processing “is likely to result in a high risk to the rights and freedoms of natural persons”. The GDPR highlights that “new technologies” are more likely to require a DPIA.
The Prime Minister has said that he wants a “world beating system” for testing and contact tracing, to identify “local flare ups”. But this system will only achieve its goal if the public has confidence that their data will be protected and used in ways they can understand and to which they consent. Otherwise people will not use it and a significant tool to fight the pandemic will be lost. If Public Health England is unable to gain the public’s trust in Test and Trace, the prospect of the public putting their faith in a contract tracing app, which records location data, seems pretty remote.
‘It was 20 years ago today’ —
Test and Trace will collect personal data including an individual’s full name, NHS number, home address, and description of medical symptoms. In addition, people will be asked to identify anyone with whom they have been in close contact. Where somebody has shown COVID-19 symptoms, that data will be retained by Public Health England for 20 years in a personally identifiable format. People will understandably worry that the data could be used for purposes to which they would not consent. This is what the Information Commissioner calls “function creep”.
The 20-year retention period will likely be the battleground. Public Health England states in its privacy notice that this retention period is justified because COVID-19 is a new disease, and it may be necessary in the future to know who has been infected or in close contact with somebody who has had symptoms. PHE does not explain this statement any further, but this is understandable: it is not in a position now to state precisely how and why it might be necessary to use the data.
Just Gives Us the Facts —
This approach represents a departure from the contract tracing systems being used in other countries. Apple’s and Google’s joint API does not record any identifying data; the purpose of such a contact tracing app is to prevent the spread of the virus in the short term by informing those with whom a symptomatic individual has had contact that they are at risk of developing symptoms. In contrast, Public Health England wants the opportunity to do something much more long term, retaining the data to exploit it if the need arises. Public Health England will say that they are forward thinking, allowing the country to respond as the pandemic evolves; the ORG will say that the public should know how their data will be used before they hand it over.‘
Aaron Moss is a barrister at 5 Essex Court, a set of Chambers that regularly provides advice and advocacy across the full scope of matters relating to information and data protection law.https://5essexcourt.co.uk/our-people/profile/aaron-moss
PRO BONO/CSR PROJECT OF THE WEEK
DEVELOPING ISO 31022 – THE FIRST INTERNATIONAL LEGAL RISK MANAGEMENT STANDARD courtesy of CMS lawyer DR SAM DE SILVA
ISO (International Organization for Standardisation) 31022 is a new principles-based standard designed to guide companies in the management of legal risk in relation to all their operations and activities. It will help them meet their legal and regulatory requirements, manage contractual risk and enhance strategic decision-making in complex legal environments. Dr SAM DE SILVA, a partner in CMS’s IT and Outsourcing Team, joined the-then newly established ISO Working Group as Co-Convenor, acting as a representative of the British Standards Institute (BSI), and played a leading role in the development of the new ISO standard. All of Sam’s work was done on a voluntary and pro-bono basis. Here he describes its significance
Organisations have often not considered legal risk as a category in its own right and such risks have been subsumed within other risks. For example, in relation to financial services, Basel II defined legal risk as being a part of operational risk. This lack of identification of legal risk in its own right could be the result of its comparative lower profile when compared to other risks arising from, for example, financial crime, conduct and duty of care, IT and cybersecurity. These, historically at least, have had a much larger impact on the viability or capital adequacy of an organisation. However, this has changed over recent years with the level of fines in relation to not managing legal risk appropriately, and the significance of reputational losses for many businesses, driving significant changes in the profile of legal risk.
What is Legal Risk? —
The definition of legal risk is one of the most difficult areas on which to reach a consensus. Ultimately, legal risk was defined by reference to the established definition of “risk” as the “effect of uncertainty on objectives”– see ISO 31000 (Risk Management – Guidelines). This definition was then modified to include concepts specific to legal, regulatory and contractual matters, as well as non-contractual rights and obligations as part of that definition. The intention was to keep the definition as broad as possible – and as relevant possible to multiple jurisdictions – to ensure as wide an application as practicable.
ISO 31022 has 3 core sections which deal with the principles of legal risk management, the legal risk management process and, finally, the implementation. The principles section adopts the principles set out in ISO 3100, i.e. integrated, structured and comprehensive, customised, inclusive, dynamic, best available information, human and cultural factors and continual improvement. These principles are then applied to the context of the management of legal risk. In addition to these principles a new principle of “equity” has been introduced.
Supporting Fairness —
The Working Group responsible for drafting the new standard considered that, for decision-makers, establishing the principles of equity was useful to guide in the management of legal risk as it includes managing conflicts of interest and refers to providing an unbiased, independent voice in decisions and supporting due diligence and fairness for the best interests of an organisation.
The section of the standard covering the legal risk management process includes a flow-chart and description of how legal risk can be managed, including guidance relating to establishing the relevant context and criteria, the assessment of legal risk and the treatment of legal risk. The process also reinforces that monitoring and reviewing, reporting, communication and consultation should be ongoing throughout the entire process of managing legal risk.
The final section provides guidance on implementation and discusses the issues related to policy, roles and functions, integration, resource allocation and awareness of legal risk. It’s an important step forward.
For more on the new Legal Risk standard go to https://www.iso.org/standard/69295.html
THE LAW BUSINESS:
PERSONAL PERSPECTIVE OF THE WEEK –
WORKING ACROSS JURISDICTIONS
KARISHMA VORA is based at 39 Essex Chambers in London also runs a set of chambers in India which specialises in international commercial disputes. Adjusting from the culture and etiquette of one jurisdiction to another requires constant attention, she explains.
Practising law in a jurisdiction other than where one grew up or read law prompts an internal negotiation between two cultures (although I suppose the same may be said about a barrister practising in London who grew up in Scotland or Ireland!).
So, for example, every time I get off the plane, I remind myself of the manner in which I must address my clerks. Here in London it is ‘if you do not mind..’ and ‘when you have a moment, please can you do…’. In India, by contrast, it involves simply making the task known to the clerk – ‘this needs doing’ without ‘please’. Although a ‘thank you’ would be welcomed, it is not expected.
In terms of the law itself, the chance to imbibe differing analytical approaches and advocacy skills are one of the key reasons why English lawyers might wish to gain experience working abroad. Before relocating to London in 2009, as a junior at the Bombay High Court, I was instructed to argue 3-4 commercial interim applications per day, developing the ability to think quickly on my feet.
Meanwhile as a lawyer with full rights of audience at the DIFC Court in Dubai, I learned about the interplay between local culture, a domestic civil law system and the common law governed DIFC Court.
In London, by contrast, a valuable lesson has been ‘less is more’. Nonetheless difficult judgments need to be made about drafting practices and the vociferousness of presenting one’s argument in court. In that regard, ‘tiptoeing’ is perhaps a better approach than performing ‘vertical gymnastics’.
ARTWORK OF THE WEEK – SAMUEL BASSETT AT HOGAN LOVELLS
Samuel Bassett, Alone at Sea and The Lord Lay Cold, 2015, Mixed Media on Board, 238 x 214 cm
“Sam Bassett’s works were the first new addition to the Hogan Lovells Collection as part of the refresh,” explains Mike O’Donoghue, the art-savvy lawyer who curates the firm’s collection. “My first project was to source a large work that would command the entrance to our new lounge in Atlantic House, which was a big ask given the size and space. I looked at a large number of works and artists and spoke to a number of galleries to find something that would not only logistically work in the space, but would engage with visitors and communicate the benefits and the role that art plays in the Hogan Lovells office. Sam’s work struck a chord, not just with me, but once up, with our staff, visitors and even a few passers-by from the street who have wondered in.
“In these paintings Sam paints the sea a dark black, almost oil-like. The figures delicate but surrounded and submerged in bold and brutal splashes of colour. His paintings are instantly recognisable as his work, but traces of his influences remain embedded in his work.
“The imagery is drawn from the space around him in St Ives, a seafront renowned for its beautiful golden sand and azure waters, which artists usually adorn on their canvases, but here in these works, they represent the sea at winter; dark, brutal and atmospheric. This is what it looks like when the holiday makers are gone.
“Sam often refers to his work as a confessional and diary all rolled into one and perhaps that is what makes and keeps the viewer intrigued.”
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