Edward Fennell’s Legal Diary – Edition 14
Thursday June 25 2020 Lunchtime publication Edition 14
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT OF THE WEEK
– SINS OF THE FATHERS
It should come as no surprise to anyone who knows anything about British economic or political history in the period 200 years ago that law firms were complicit in the slave trade. Slavery was both big business and was legal and so it needed lawyers. How culpable we should regard the heirs to those firms today is a moot point.
But the question it does raise is the moral choices made by lawyers now about whom they take on as clients and the transactions they undertake for them. Rest assured, our descendants a century or so ahead will be making judgements about our conduct. To argue that a client is acting perfectly legally might not stand up in the court of public opinion in 2120. But then, you might ask yourself, does that matter?
The Legaldiarist
In this edition
+ WEBINAR TO WATCH THIS WEEK
+ LEGAL DIARY OF THE WEEK
+ APPOINTMENT OF THE WEEK: EOIN O’SHEA AT CMS
+ LAW BUSINESS INSIGHT OF THE WEEK : AI IS COMING
+ CSR INITIATIVE OF THE WEEK – THE COMMUNITY JUSTICE FUND
+ LEGAL COMMENTARY OF THE WEEK: TELEMEDICINE
+ ARTWORK OF THE WEEK : PINSENT MASONS
+ PLACE IN LEGAL HISTORY OF THE WEEK – THE OLD BAILEY
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WEBINAR TO WATCH THIS WEEK
TONIGHT – ‘THE FRAUD FACTOR HALF HOUR‘
A lively webinar this evening 6pm-7pm hosted by Keith Oliver, Head of International at specialist business crime law firm Peters & Peters and featuring the Right Hon Lord Briggs of Westbourne, Justice of the Supreme Court along withJane Colston (Partner at Brown Rudnick) and Mona Vaswani (Partner at Milkbank) who will debate the key fraud issues of the moment.
“There isn’t a confirmed agenda as the desire is to get straight to a candid conversation about things these market leaders are seeing first-hand,” says the organisers. “What are the regulators missing? Who’s the regulator got its eye on? Are we anywhere near keeping tabs on fraud during lockdown?
The session will be interactive so it welcomes ‘guest appearances’ from the audience. Sounds as if it could be fun as well as informative.
Join by phone via +44-20-3198-8143 (UK) and use the access code 160 772 9141
LEGAL DIARY OF THE WEEK
Burford sets precedent in deal with PCB
Thenews yesterday that Burford Capital, the world’s largest litigation funder, has become an equity stakeholder in PCB Litigation LLP, the leading specialist dispute resolution firm, represents a step of enormous importance in the evolving relationship between lawyers and those who invest in their cases.
In the first ever move of its kind, Burford’s tie up with PCB is a powerful endorsement of the law firm’s reputation. Not only will Burford finance a portfolio of matters but it will also to take a 32% equity stake in the firm’s success overall as a part of agreeing to make capital available. This novel structure has been in train since last year and has been approved by the Solicitors Regulation Authority (SRA). PCB has now converted to an ‘Alternative Business Structure’ (ABS).
“We have spent some time working on this and in some ways the importance of the deal has grown as a result of Covid-19, “ said Anthony Riem, PCB’s Managing Partner. “The idea behind it was to leverage off our respective top tier legal and financing expertise in dealing with fraud, asset recovery and distressed debt so as to offer world class solutions to clients in these areas and in dispute resolution generally especially in relation to insolvency and white collar crime. Distressed debt was already a huge issue before Covid-19 and will be even more massive as a result of it.”
Riem went on to highlight two features of the present crisis for business. “The first is that there are those who are taking advantage of the current situation now by committing fraud while there are others who may feel compelled to do so to keep their businesses alive. The second point is that creditors and victims of fraud are going to be looking for help to fund those claims. We believe that with Burford now having taken an equity stake, we are best placed to help.”
Don’t Bank on It!
Things are hotting up in the case of Banco Central de Venezuela (BCV) v The Governor and Company of The Bank of England and will come to the boil today on the final of four extraordinary days in the High Court.
It is, to put it mildly, a complicated case. Or, if you approach it from the other end, dead simple.
“Why are we in this court at all?” asked Mr Vineall QC instructed by Zaiwalla & Co. on behalf of the BCV. “Well, we are in this court because, on the one hand, the Bank of England and, on the other hand, Deutsche Bank, both of whom for present purposes are undoubtedly in this jurisdiction, need to know, as between two competing claimants, both of whom claim they represent the BCV, which they are to give the money to. That’s what this case is about. To characterise it as being essentially about things in Venezuela seems to us just to be utterly artificial.”
At stake is a pile of gold which the Bank Of England has been kindly looking after on behalf of the BCV – and thereby, possibly, its government. The problem is, as anyone who follows South American politics knows, that there is a bit of a dispute at the moment about the status of that Government. Or indeed anyone claiming to be the Government.
As ever these days the C-virus is game changer. The BCV says it wants the gold back to spend on fighting the virus – so let’s not allow politics to get in the way. Or as Sarosh Zaiwalla, senior parter of Zaiwalla & Co. puts it, “Venezuela has been denied access to its resources during an international crisis. In effect, the nation’s gold reserves in the BoE are being held hostage to political factors dictated by the foreign policy of the United States and certain of its allies. In the meantime, there is a very real risk that the people of Venezuela will suffer.”
Sadly they are likely to have to suffer for some time longer. “We expect Mr Justice Teare to withhold judgment to allow him to properly consider the many authorities that have been cited in the last couple of days,” commented a source close to the case. Meanwhile the golden dream goes on.
Well Noted
In the light of the Bank of England story above I have to mention another curious case involving a far away country. This time the focus is on De La Rue PLC, a long time supplier of bank notes to the Bank of England but which also does a healthy amount of business for other governments. Of late, however, it has been under scrutiny by the Serious Fraud Office for its activities in South Sudan.
What could it have been up to? Well nothing very much apparently because after eleven months the inquiries have been halted. “News of the SFO having dropped its investigation into De La Rue PLC’s activities in South Sudan will come as a welcome relief for the embattled banknote printer,” said Neil Williams, Rahman Ravelli’s Legal Director.
Actually less than a year represents quite a quick decision by the SFO. “This announcement also suggests that the SFO is working to free up resources,” continued Williams, “presumably in anticipation of an increase in activity as it unpicks the wrongdoing that been committed by those who have sought to gain advantage during the pandemic.”
De La Rue’s share prices surged following news of the investigation’s closure – a clear reminder of the destabilising impact that an SFO investigation can have on a business. You might say it now has a licence to print money.
WFH – Really?
According to a story elsewhere in the legal press this week a ‘well-respected Mexican IP lawyer’ at Basham, Ringe y Correa died suddenly of a heart attack at age 44. Obviously very sad for him and his family. But also for his colleagues in the office who blamed the long hours culture – and, who knows, maybe presentism – of working from home.
Well maybe it’s different in Mexico but the general view during recent weeks over here seems to be that – unless you are also dealing with young children in lockdown – WFH is better for productivity and for your general state of mind. Maybe the reality is that – home or away – being a lawyer is a stressful activity. You need to keep a cool head, wherever you are, to make it work.
APPOINTMENT OF THE WEEK:
EOIN O’SHEA, HEAD OF WHITE COLLAR CRIME, at CMS
White collar crime is one of the hottest and fastest growing areas of the law right now with fraud expected to surge in the aftemath of the C-Virus pandemic. As Guy Pendell, Head of Disputes at CMS comments “There has been a huge amount of movement and growth in the Corporate Crime & Investigations space over the last five years. As such, we have identified this as a high-growth area and an important focus for the team.”
So the appointment of Eoin O’Shea as Head of White Collar Crime in CMS’s Corporate Crime practice – which he will lead alongside partner Omar Qureshi, Head of Corporate Crime – is an important development for the firm.
White collar crime is one of the hottest and fastest growing areass of the law right now with fraud expected to surge in the aftemath of the C-Virus pandemic. As Guy Pendell, Head of Disputes at CMS comments “There has been a huge amount of movement and growth in the Corporate Crime & Investigations space over the last five years. As such, we have identified this as a high-growth area and an important focus for the team.”
With years of recommendations in Chambers and Legal 500 O’Shea is the author of a leading textbook on the law of bribery. Add to that being the Chair of the City of London Law Society Corporate Crime Committee it is no surprise that he has been has been praised for being “fiercely passionate about the rule of law”.
”We are seeing an increase in demand for new and evolving streams of work, particularly in the investigations space, “ said Omar Qureshi “Eoin’s impressive experience and proven track-record will be of real benefit to the team and our clients, enabling us to better respond to their evolving needs and I look forward to working alongside him.”
Impact of the Bribery Act —
Bearing in mind that the Bribery Act has recently marked its tenth anniversary the Legadiarist asked O’Shea whether it had made much difference in practice. “The Bribery Act has had a very significant impact on business,” he said. “It has shifted the Overton window [ that is the ‘range’ or ‘window’ of policies that the public will accept.] as to tolerable corporate conduct, and over a very short period. The spread of corporate anti-bribery procedures has definitely prevented some potential bribery, and the broader changes to corporate culture have triggered major policy decisions by boards and investors.”
Of course bribery still happens, O’Shea continued. Enforcement is critical but has, in the UK, been patchy. “Enforcement against companies (in the form of Deferred Prosecution Agreements) is now common. The prosecution of individuals is far more problematic for agencies such as the SFO. But we should remember that, twenty years ago, foreign bribery was hardly being investigated, let alone prosecuted. “
Across the wordl organisations such as the OECD and other agencies see the UK Bribery Act as a model, says O’Shea. “Reforms and improvements to the laws of other countries have stemmed from a global movement towards transparency and against corruption. That movement both gave rise to the Bribery Act and was, in due course, given momentum by it. It also facilitated international cooperation between law-enforcement on major corruption cases, a trend which is likely to continue.”
LAW BUSINESS INSIGHT OF THE WEEK
AI is coming – but it should not be feared
by ANDY MOSEBY, Corporate Partner at Kemp Little
Before the COVID-19 pandemic, a number of AI and machine-learing software products had been released, each designed to increase the efficiency of legal processes. Many of these were built to aid contract review, particularly for M&A transactions. Without the use of software tools, a buyer waiting to understand the value and risk associated with a target’s revenue-generating contracts but have little choice but to instruct a team of lawyers to review each agreement. AI was heralded as a method of transforming this due diligence process. However, in reality, most forms of this technology are still fairly rudimentary.
It’s not hard, though, to see how useful the next generation of AI tools could be for deal-makers. As we’ve seen over the last six weeks, fortunes and financial forecasts can change rapidly; for most businesses contemplating a sale or looking to raise investment during the UK’s lockdown period, the result has been a slow-down, with many deals in limbo until buyers or investors can more accurately predict how the effects of COVID-19 will impact the target business. In such circumstances, AI-powered real-time data analysis could help deal-makers make informed decisions faster, without the need to put transactions on hold.
Even though the country has started to come out of its lockdown state, we anticipate there will be far greater use of software tools aiding remote working, such as collaboration portals between lawyers and their clients. We’ve also seen how useful technology and data analytics which aids contract analysis can be in a crisis situation. Businesses not employing such tools have found it difficult to respond quickly to questions around how robust their revenue-driving contracts are in the face of potential supply-chain disruption or renegotiation by customers facing working capital difficulties.
Clients interacting with lawyers –
There are a lot of interesting developments happening across the lawtech sector involving a number of suppliers and law firms. Whilst areas of focus differ at Kemp Little we believe that the most transformative tools are not simply those which enable lawyers or client deal teams to work more efficiently.
We have developed internally a number of software products which look to change how clients interact with their lawyers. Across the industry, billions of pounds are still being spent on complicated legal advice given by humans, yet this is rarely captured in any way which allows for future searching or tailoring. Software can be used to database and store legal advice in a way that means it is memorialised and can be updated in a tailored way to all that may need it in the future. The aim is that this will democratise the advice and save significant amounts in fees for repeat work.
We have also built a product which uses new technology to provide a service which simply wasn’t possible until now: monitoring the whole web for design infringements, and filtering the list of millions of potential results down to the couple of hundred real infringements, using advances in AI-vision. Using software to provide a more efficient legal service is already a given. What interests us is how cutting-edge technology can be used to fundamentally benefit our clients’ operation of their business and how they use their lawyers.
CSR INITIATIVE OF THE WEEK
– THE COMMUNITY JUSTICE FUND
Legal advice charities from around the UK are benefiting this week from grants worth over £1.8 million awarded by the Community Justice Fund.
The Fund was set up by the Access to Justice Foundation and five other leading social justice funders to help not-for-profit legal advice organisations be effective and sustainable in the face of responding to COVID-19.
The grants vary in value from £10,000 to £75,000 and have been awarded to 35 charities supporting disadvantaged and vulnerable people across the UK, in areas such as disability, employment, housing, immigration women’s rights, benefits, debt and welfare. They are intended to enable the organisations to respond to challenges arising from the current pandemic.
The charities whoch have been awarded grants include Child Poverty Action Group, Disability Law Service, Brighton Housing Trust (BHT), Welsh Housing Aid (trading as Shelter Cymru), Mary Ward Legal Centre, JustRight Scotland, Just for Kids Law, Norfolk Community Law Service Ltd (NCLS), Advice on Individual Rights in Europe Ltd (The AIRE Centre) and Independent Provider of Special Education Advice (IPSEA).
“We have tried to make the application process as straightforward and streamlined as possible to provide the vital financial support that the not-for-profit legal advice sector needs as quickly as possible”, said Ruth Daniel, CEO of the Access to Justice Foundation. “We are working hard to issue multiple grants every week and strongly encourage applications from specialist legal advice charities across the UK who need urgent and flexible financial assistance to stay open and sustainable at this time of crisis.”
For further information on the Community Justice Fund, to donate, or apply for a grant, visit www.communityjusticefund.org.uk.
LEGAL COMMENTARY OF THE WEEK: TELEMEDICINE – THE THREAT OF DATA BREACH
With the C-virus prompting a new way for patients to consult with their doctors it is vital the technology complies with the law, says RAUL KALLO, Chief Executive Officer, Viveo Health
A recent McKinsey survey revealed that 76% of people globally would prefer their doctor’s appointments to be virtual and the predictions are that online healthcare interactions could surpass the one billion mark by 2025. While phone and video calling has become more common between doctors and their patients, we are seeing a growing risk of major data breaches such as with Babylon Health earlier this week where users of the service were sent videos of other people’s consultations.
In order to maintain the highest standards in telemedicine, platforms need to be designed so that the risk of personal data leaks is reduced to the absolute minimum. End-to-End encryption (E2EE) – where only the communicating users can read the messages – offers one solution to this problem. By using E2EE encryption in all communications between patients and doctors, data is secured and doctor-patient confidentiality standards can be upheld.
Importance of Compliance —
Compliance under HIPAA (the American ‘Health Information Privacy and Portability Act’ ) and PCI DSS 3.2 (the Payment Card Industry Security Standards Council) needs to be inbuilt into any telemedicine platform from the ground up. Perhaps the most important area of compliance, however, is with the Regulation (EU) 2016/679 of the European Parliament on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR, General Data Protection Regulation). We have already seen fines issued from the ICO to those failing to comply, so inbuilt security must become the norm in every sector, not just telemedicine.
Data protection and GDPR compliance can only be guaranteed when a telemedicine service is provided solely through a secure platform (often called a health portal). Inside such health portals, doctors should be allowed to access only the health records of those patients that they themselves are consulting with. When signing up for the telemedicine platform, each patient is given a unique strong password, and every time the patients enter the platform, they use a secure login with this same strong password to maintain the highest security standards.
From a technology perspective quality assurance is also a key factor that must be given due consideration. Very strict QA processes that are undergone with transparency between all areas of a business are essential to ensuring that new features and updates to software do not damage the quality of service in any way. Proper communication between departments ensures that testing is only carried out in the most careful conditions; this is the key to preventing occurrences such as the data breach experienced by Babylon Health.
PHOTOGRAPHY BY STUART FRANKLIN
AT PINSENT MASONS
ARTWORK OF THE WEEK
During Covid-19 we have witnessed a renewed appreciation of parks and green spaces with many of us dependent on them to provide some much-needed relief mentally, physically and emotionally, writes MAGGIE O’REGAN of InSitu, the art consultant to Pinsent Masons.
Within the art collection of Pinsent Masons there are a number of pieces which celebrate nature and our connection to it, specifically the extraordinary landscape series ‘Narcissus’ by Magnum Photos photographer Stuart Franklin.
Partner and Head of the Pinsent Masons art committee, David Isaac says ‘During lockdown we have all been forced to re-engage with the natural world. Nature has always been around us but until now modern life hasn’t easily allowed us to acknowledge that fact. Franklin’s work is an exception. The playful way in which he turns his stunning images of Norwegian fjords into human form have always been a reminder to us that we are part of nature and that it is never far away”.
Image Narcissus: Stela I 2010, (copyright 2020 Stuart Franklin Magnum Photos)
Scandi Noir (et Blanc) —
‘Narcissus’ is a collection of landscape photographs taken by Franklin over a five year period in the region of Møre og Romsdal on Norway’s western fjordland. Beginning in 2009, Franklin bought a cottage by a lake on the island of Otrøya, spending a great deal of time there over the following years. These tranquil, contemplative, anthropomorphic and introverted landscape photographs time and again seek references to human beings.
Long associated with landscape photography, Franklin engaged with the subject from as early as the mid 1970’s when he explored the landscape of Thomas Hardy’s Dorset. Later, during the 1980’s he was drawn – but as more of a documentary incentive – to the post-industrial landscape of Alsace-Lorraine and northern England. Franklin has documented the rapid changes in the European landscape, culminating in his book ‘Footprint: Our landscape in Flux’ (Thames and Hudson, 2008). Other publications include ‘The Time of Trees’ (1999 Leonardo Arte, Milan) which examines the social relationship between nature and society.
Photography in one place —
Franklin’s trip to Norway followed a busy period of assignments and three years as Magnum’s president. The remoteness of the Norwegian location provided him with space and time to think which enabled the development of a more personal and subjective approach to landscape. Franklin acknowledges the change in his approach as a backing away from political engagement and the work highlights that time taken to slow down, to think, to reflect, to photograph in one place is still a political as much as a creative act.
POST SCRIPT: FIRM SUPPORT FOR YOUNG ARTISTS
The Covid-19 pandemic has left art college graduates grappling with no access to workshops, ‘virtual’ degree shows and uncertain career prospects. So for the remainder of June and throughout July, Pinsent Masons art consultant, Maggie O’Regan of InSitu, is providing free online consultations for the sector via the Instagram @insitu_art_consultants.
PLACE IN LEGAL HISTORY OF THE WEEK
– THE OLD BAILEY
In the first in a new occasional series Dan Dodman, a Partner at Goodman Derrick LLP, reflects on the story of the Old Bailey site and its grim history
The Old Bailey (or the Central Criminal Court as it should properly be called) is probably the single most famous legal building in London. It’s the site of many of the most notorious cases in the Country (Oscar Wilde’s criminal case, Dr Crippen, Lord Haw-Haw, Christie and Peter Sutcliffe to name a few). However, what is rarely remembered is that for 800 years it was also location of Newgate Prison.
This had an equally illustrious list of prisoners as the Old Bailey (Titus Oates and Daniel Defoe) but was also the location for major criminal executions from the late 18th century onwards. Scaffolding sat on the Old Bailey street and those to be executed climbed on to it having gone through the exit on Newgate Street. The crowds attending were huge, many people died in 1807 when a crush developed during one of the hangings. The last public execution in Great Briton took place outside the walls of the prison in 1868 but the killings would continue behind closed doors until 1902 (1,169 died in total).
The prison has also entered literary history with Dickens visiting it on a number of occasions and becoming somewhat obsessed with it. Newgate features in Barnaby Rudge and Great Expectations. It’s also the location where Fagin waits for his comeuppance in Oliver Twist, not far from his den in Saffron Hill.
The Old Bailey now stands as a testament to how far law and order in this country has progressed but perhaps also a reminder that things can continue to improve.
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