Edward Fennell’s Legal Diary – Edition 78
Friday October 22nd 2021
Diary news, commentary, insights, appointments and e-vents from the legal world
SHORT THOUGHT FOR THE WEEK – SHOULD CHILDREN HAVE ANY CHOICE?
On Monday (25 October) at lunchtime Gresham College will be hosting a lecture by Visiting Professor of Medical Law Imogen Goold on the tricky topic of Children & Consent to Medical Treatment, the first in a series on medical law.
It could hardly be more topical. The massive rise in Covid numbers in the LegalDiarist’s home town is primarily due to the influx of young people into the large number of schools and colleges. In a free society the State should be reluctant to mandate oppressive interventions. Nonetheless there is some confusion over ‘young people’s capacity to consent, and who gets the final say if they or their families want to refuse medical treatment’. Historically this is also relevant to the Treloars ‘infected blood’ case (see below).
There aren’t easy answers – but if there were there would be no need for the law.
The LegalDiarist
Monday, 25 October 2021, 1:00PM – 2:00PM Barnard’s Inn Hall/ Online or Watch later
https://www.gresham.ac.uk/lectures-and-events/children-medicine
In this week’s edition
LEGAL DIARY OF THE WEEK
Give Life Chances a Chance, says BCLP
It’s a Movers’ Market, reports top recruitment agency MLA
Development in Devonshires
Ampa Gets Military Backing
LEGAL COMMENT OF THE WEEK
MUSIC TO WHOSE EARS? By Caroline Harbord of Forsters
TRELOARS SCHOOL IN THE DOCK OVER INFECTED BLOOD by Des Collins of Collins
MAKING SENSE OF THE ‘OFFICIAL INJURY CLAIM’ STATISTICS by Andy Cullwick of First4Lawyers
MANAGING IN THE MODER LAW FIRM by Iain Blatherwick
APPOINTMENT OF THE WEEK
E-VENTS from Pinsents, Harvard and Cadwalader
LEGAL DIARY OF THE WEEK
Give Life Chance a Chance, says BCLP
Historically the East End has always been the ‘poor’ part of London and in many respects that is still the case (although, of course, by no means the only underprivileged part of the capital). Over the years there have been many attempts to alleviate the poverty but the latest initiative comes from the East End Community Foundation’s (EECF) Life Chances Campaign which has been given a massive lift of support from Bryan Cave Leighton Paisner (BCLP) as a founder member. The firm already has at rack record of charitable work in the area.
“We’re really grateful that BCLP have generously pledged their commitment to the Life Chances campaign,” said Chief Executive of the EECF Tracey Walsh. “Having such a prominent local business on-board who already support vital work in the community means they are knowledgeable and equally passionate about our vision to collaborate and create much-needed opportunities for the residents of the East End.”
Despite some parts of east London gaining a veneer of ‘cool’ the statistics are depressing. It is reckoned that more than 50 percent of children in Tower Hamlets and Newham are now living in poverty, more than half of all older people are income-deprived and there is even more suffering from loneliness and isolation. Mental health issues are at record levels.
The campaign now aims to raise and distribute £5 million to grassroots organizations and will focus its resources to improve the wellbeing of and employment opportunities for young people, tackle digital exclusion, and reduce poverty and isolation among older people.
As Segun Osuntokun, partner in charge BCLP UK commented, “It’s crucial that we support and give back to the local communities in the areas in which the firm operates. By providing support, services and reconnecting them with society as a whole, they can still make a valuable contribution to society.”
It’s a Movers’ Market, says Top Recruitment Agency
Major Lindsey & Africa (MLA), one of the leading international legal recruitment agencies, has just delivered a fascinating update on the state of the legal employment market. It is now obvious from reports in the legal press that there is a mighty drive taking place towards expansion but it is always useful to have that confirmed from the front line. According to MLA’s latest Global Law Firm report, “The lateral market is extremely active around the world. [The U.S. continues] to see law firms making hires across all practice groups and with a willingness to look at candidates from not only other law firms but from government and in-house positions as well….The challenge, however, is not law firms’ interest in hiring but candidates’ interest in making a move.”
The same applies to London. says MLA with a highly active lateral partner market. “Firms across the City remain persistent and aggressive in pursuing a policy of growth in line with the major U.S. legal markets. Amidst decent economic recoveries on both sides of the Atlantic, there is a prevailing view that an interest rate rise cannot and will not happen as aggressively as some commentators have predicted. Borrowing, therefore, may remain relatively cheap. All of which is supported by the continuing rapacious appetite in the market for transactional PE, M&A, leverage finance and capital markets partners; in fact, anything transactional remains on the menu. Some of the top U.S. firms have made some noteworthy anticipatory hires but we will see more.”
To read the report in full go here.
Development in Devonshires
A good example of what MLA was talking about comes from Devonshires which has just announced nine new hires for its London office. A fizzy firm which is, maybe, rather under the radar Devonshires operates both in the mainstream and also in intriguing specialist corners such as military law, inquests and inquiries, local government and decarbonisation.
With such an eclectic practice it’s no surprise that it has gone out to a diverse range of firms for its recruitment drive. Charles Russell Speechlys, Capsticks, Ronald Fletcher Baker have all lost lawyers to Devonshires’ construction team while Mayo Wynne Baxter, Wilkin Chapman, and Beauchamps have been the source for the expansion in the real estate and projects team. Finally the Khan Partnership, HB Public Law and Capsticks (again) have contributed to Devonshires’ litigation and dispute resolution, employment team and housing management and property litigation practices respectively.
Of course, successfully weaving new but experienced people from such a range of backgrounds into the Devonshires’ fabric will be a management challenge. The firm’s motto is ‘A law firm with personality’. Let’s hope their personalities fit in.
Ampa Gets Military Backing
Whether Ampa would say that, like Devonshires, it too is a ‘firm with personality’ is not clear. Instead it would seem it has multiple personalities, two of which are law firms – namely Shakespeare Martineau and Lime Solicitors, But alongside that there is also a planning consultancy and an assets recovery firm. In other words, as Ampa puts it. they are a ‘group of legal and professional services companies with a shared purpose’. And, for sure, they are role models for the new kind of ownership in the legal industry with another brand just added in the shape of global cyber security firmCSS Assure. This marks the first non-legal service provider to join what is called Ampa’s ‘house of brands’ strategy.
There is, actually, a logical fit with the world of law given that CSS Assure’s services include cyber security, data protection, financial crime resilience and background checks. And when CSS’s co-founders Mike Wills and Charlotte Riley join the Ampa membership (after SRA approval) they will bring a certain military bearing to the operation. Wills is a retired British Army infantry Major with more than 20 years’ experience working in technical and information assurance roles while Riley has worked for NATO and the United States Department of Defence. Expect them to be quick on the draw.
LEGAL COMMENT OF THE WEEK
MUSIC TO WHOSE EARS?
Following the Competition and Markets Authority’s decision to undertake a review of the streaming industry review due to concerns that apps like Spotify “have squeezed artists’ income and harmed consumers”, Caroline Harbord, Senior Associate in the Dispute Resolution team at Forsters examines what might happen next.
This week’s announcement that the Competition and Markets Authority (CMA) is commencing a market study of the music streaming industry will no doubt be of grave concern to streaming platforms such as Spotify.
If the final report suggests that such platforms have acted anti-competitively, this could lead to a gigantic “opt out” class action against the platforms (in the style of the recent Collective Proceedings Orders (CPOs) granted in Merricks v Mastercard, Le Patourel v BT and Gutmann v London and South Eastern Railway Limited).
Given how ubiquitous streaming platforms are, the potential class of claimants could extend to all individuals who have streamed music over a specified period (potentially since the inception of the platforms), and the damages could run into billions (as was the case in each of Merricks v Mastercard and Le Patourel v BT). This is leaving aside class action that the musicians themselves could also launch.
Le Patourel v BT is of particular relevance here, because the Competition Appeal Tribunal (CAT) made it clear in that case that a CPO, the order required before an “opt out” group action can proceed, could be granted against BT on the basis of the findings of an Ofcom market review.
As such, the findings of the music streaming market study could themselves provide sufficient evidence for a CPO to be granted against streaming platforms (whereas the more traditional school of thought was that a specific finding of anti-competitive behaviour had to be made by the European Commission or CMA).
The threshold evidential requirement for granting CPOs has therefore been lowered by Le Patourel v BT, and it seems plausible that any findings of the recently announced market study by the CMA could be enough to get an “opt out” group action against the streaming platforms off the ground.
Watch this space – while the announcement is good news for consumers and musicians, the streaming platforms may be feeling a sense of impending doom.
TRELOARS SCHOOL IN THE DOCK OVER INFECTED BLOOD
Gary Webster, now 56, was given infected blood as a teenager while receiving treatment for haemophilia at Treloars School in Hampshire. This was without parental consent or advice on the risks involved. Acting on behalf of Mr Webster, Collins Solicitors has now sent a letter before action to the Chair of the Governing Body of the school. Here Des Collins, Senior Partner at Collins Solicitors, maps out his case.
It will be our client’s case that the treatment he received at Treloar’s was negligent and amounted to breach of duty of care. There was a total failure to inform and obtain consent on the risks associated with the blood products administered and a deplorable dereliction of duty in the handling of his subsequent diagnosis and after-care, despite Gary effectively being given a death sentence.”
“Normally the time-limit for personal injury claims is three years after a child’s 18th birthday.
However, it is our position that this should not apply here given the extraordinary evidence heard – for the first time after all these years – at the Infected Blood Inquiry in June. Relevant testimonies include those by Treloar’s former headmaster, house master, care staff and clinicians in the hospital attached to the school.”
“We recognise Treloar’s School does great work with disabled pupils today and that some former pupils have fond memories of the time they spent at the school they regarded as home for much of their childhood. However, the fact remains that in the past the school as a collective body ruined the lives of a substantial cohort of haemophilia sufferers. Sadly, many are no longer with us to be able to evidence the appalling negligence and abrogation of responsibility that took place. No amount of money can ever make up for a life spent on borrowed time, enduring disease that was preventable and the associated social stigma, but recompense might go some way towards easing my client’s daily struggle and provide recognition of the injury he is so deservedly owed.”
According to Litigation Protocol, Treloar’s, or its representatives, have 21 days to respond to Collins’ correspondence.
MAKING SENSE OF THE ‘OFFICIAL INJURY CLAIM’ STATISTICS
Responding to the publication by the Ministry of Justice of the first three months of data on the operation of the Official Injury Claim (OIC) portal, Andy Cullwick of First4Lawyers says
“We’re going to take time to analyse and compare this data with Compensation Recovery Unit (CRU) data. However on first reading, 40% of unrepresented claimants seeking an uplift strikes us as high. It begs the question whether the unrepresented properly understand the process needed to make a claim at all?
“Unfortunately, there is no breakdown on how many law firms are submitting claims, but we do know there is a 10% drop in the number of road traffic accidents (RTA’s) going through the CRU at the moment compared to last year. When compared to pre-pandemic levels it represents a 45% drop. However, given the number of issues reported when the OIC portal went live and the lack of integration to the Claims Portal, it is far from clear if the OIC is doing the job effectively or just blocking justice to access.”
“The purpose of these reforms was to enable unrepresented claimants to handle their own RTA claims as they were thought by the government to be straightforward. It is very clear that very few are using this portal by themselves, which suggests they are not comfortable in handling their claim via an insurer and need representation. This is exactly why we were forced into launching our own alternative business structure First4InjuryClaims to help those who require support through the process.”
MANAGING IN THE MODERN LAW FIRM
Continuing our regular series on law firm management Iain Blatherwick formerly Browne Jacobson’s Managing Partner and now a management coach, builds on recent articles about mental wellbeing for leaders and the importance of culture to consider leadership in a crisis.
Between 2009 and 2020 I was the Managing Partner of Browne Jacobson, a leadership experience bookended by crises. I have since qualified as an executive coach and have reflected on the lessons I learned and those I wish I had!
Below is some practical guidance to consider before the next unexpected challenge hits…
First, is your governance clear?
Do the boards/committees/key office holders understand and respect the scope of their roles. In a crisis you do not have time for turf wars or duplication – make sure terms of reference are agreed, understood and respected. A lot of the interference will be well-meaning, but it is still interference. This could come about through a lack of communication, so make sure you communicate clearly whenever you can to keep the organisation up to speed.
Second, leave space for innovation
There is so much noise in a crisis that it is not always easy to know where to start. Ensure you take the time to work out what genuinely needs attention and what can wait.
It is easy though for innovation to get lost in a time of crisis, despite many of the best ideas being generated at times like this – so put in place a structure to capture those ideas. Identify someone with capacity to consider those ideas and who is close enough to leadership to know what might work now. This will enable the best ideas to be brought forward and implemented and those which are good but not for now to at least be captured.
Third, consider a coaching approach to leadership
Coaching means believing in potential, developing trust and making the ‘coachee’ an empowered and resourceful team member. You need this from the team around you, to make sure they share the responsibility, and they need it in turn from their team.
This does not require everyone to go on coaching courses. Coaching is about having a really good in-depth conversation, where you really listen properly. Perhaps have fewer line-management meetings and instead make sure that there is space and time to have key conversations, giving them the attention they deserve. Let your ‘coachee’ set the agenda and focus on what and how something is being said -and make sure you are not distracted by whatever meeting is next or offering up your own solutions. Wrap up the discussion by asking your ‘coachee’ to summarise next steps – the responsibilities coming out of the meeting should be theirs. That is not to say every meeting would need to be at this level, that could be exhausting for the leader and un-nerving for the team!
This approach builds strong bonds of trust, capability and resilience in the leadership team–skills which will be essential to successfully ride out a crisis.
So much of this comes back to time: time for yourself, time for your team, time to set up governance structures, time for honest constructive conversations. If you take one thing from this, make sure you take as much control as you can on how you spend your time – not easy in a crisis, but essential so you can deliver the outcome your business needs.
Iain Blatherwick runs Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.
APPOINTMENT OF THE WEEK
Dora Grant has been appointed by DWF as UK Deputy Head of its Regulatory Consulting team. She joins from BDO LLP where she was a Senior Manager.
Grant is an experienced risk management, governance and compliance professional with experience gained from within the financial services industry from FTSE 100 companies, challenger banks, start-ups and professional services firms. In her new role she will provide regulatory advice to help clients meet their regulatory and compliance needs from complex projects and regulatory change management to ad-hoc support and ongoing services.
“I am excited to join DWF and work with the teams to support clients on their compliance and regulatory needsm” said Grant. “DWF’s clear global presence is definitely a key attraction to joining the business, as are the growth and success of the Regulatory Consulting team since established just 2 years ago. My experience and drive, together with DWF’s reputation in the market, will allow me to help grow the practice. I look forward to getting started and working with the team.”
E-VENTS
| Register for this upcoming event!View this email in your browser |
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| Register Now: Nov. 5 Webinar In an increasingly globalized world, a complex and interlocking web of nations, governments, non-state actors, laws, and rules affect human behavior. When crisis hits—whether that be extrajudicial detention, unprompted deportation, pandemics, or natural disasters—lawyers are increasingly among the first responders, equipped with the knowledge necessary to navigate the regulations of this ever more complex world. While lawyers are often well prepared to support clients experiencing crises, what happens when such crises test their own professional identities and training in ways that directly impact them and their organizations? Building off of the recent publication of Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (NYU Press 2021) as well as the recent issue of The Practice that takes up the same theme, this webinar brings together leading experts to identify and define what it means to engage in the practice of law in crisis situations and this new normal. Register by clicking here or visiting bit.ly/crisislawyering. |
| PINSENTS |
| – EVENT -Can an AI machine be an inventor? The future of AI, IP and innovation 9 NOVEMBER 2021  Artificial Intelligence (AI) has the potential to transform our society and economy. Recently it has become a focus area for investors. Dynamic development of AI technologies, and their increased prevalence, has raised questions as to whether existing patent laws are equipped for such innovations. A recent UK Court of Appeal decision in the Thaler/DABUS case reiterated that the current legislative regime does not allow for a machine to be named as an inventor of a patentable invention. This mirrors decisions across the globe, with exceptions in South Africa and Australia. It is likely that this case will reach the UK Supreme Court but, ultimately legislative change must take place. In what promises to be a thought-provoking cross sector discussion, Pinsent Masons experts Mark Marfé and Sue Chadwick will be joined by special guests Prof Chris Dent (Chair of Industrial Mathematics at the University of Edinburgh, Fellow at the Alan Turing Institute) and Alexander Korenberg (Kilburn & Strode Patent & Trade Mark Attorneys), to discuss the likely future developments in the UK and further afield, whether invention by an AI system is likely to be a reality in the future, and the ethical considerations surrounding such issues. Please note that this invitation is unique to Edward Fennell. If you know someone else who would like to attend, please forward this invite and ask them to register here. Can an AI machine be an inventor? The future of AI, IP and innovation9 November 202113:00 – 14:00 GMT Accept |
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| Finance Forum Focus Series: Spotlight on LIBOR Transition In our next installment of the Finance Forum Focus Series, Cadwalader partners Lary Stromfeld and Jeff Nagle discuss the latest LIBOR transition developments, including:The deadlines for the rest of 2021 (and beyond) and a discussion of the ramifications for Q4 2021;Various rates in the market; and Legislative solutions, including the statute enacted in New York and Federal legislation currently pending. Watch Now Having trouble downloading? Try listening here. |