Edward Fennell’s Legal Diary – Edition 82

Friday 19 November 2021 

Diary news, commentary, insights, and appointments from the legal world

SHORT THOUGT FOR THE WEEK

Pull Stumps on Lord’s?

The irony is palpable. In this wretched ‘watershed’ week when cricket and cricketers have been exposed to withering criticism for racism of all kinds (including, following last night’s revelations, anti-Semitism) the Asian Jewish Business Network (AJBN) and its hundreds of members supported by law firm Axiom DWFM decided to hold its flagship annual meeting at Lord’s,  ‘the most famous cricket ground in the world’.

Of course the organisers probably had little inkling what was about to hit the national Summer game. And perhaps they would have gone ahead with it in any case as a brave statement of reconciliation. But maybe next year go to Wembley?

The LegalDiarist

IN THIS WEEK’S EDITION

+ THE LEGAL DIARY OF THE WEEK

– Law Books Galore

– No Rush for Windrush Compensation

– Got to Go Now

– Eyes on Ireland

-This Case is Worth Crowdfunding

+ LEGAL COMMENT OF THE WEEK on

– REVELATIONS ABOUT RACISM by NICK LE RICHE

– AMAZON’S ANNOUNCEMENT by SIMON de BOISE

– THE HMI PROBATION REPORT by JABEER BUTTOBE. CEO

– NO JAB, NO JOB by MARIE HORNER

– GOOGLE’S FAILED APPEAL by ALINA POPESCU

+ CONTRIBUTED ARTICLES OF THE WEEK

– THE CHANCERY LANE PROJECT: How ‘Off-the-shelf ‘ contract clauses can ‘Keep alive 1.5’ by LEONIE BRABANT, Project Associate

– CLOGGING UP THE FAMILY COURTS: Should couples face financial penalties? asks HETTY GLEAVE, partner in the family law team at Fladgate

– ALL CHANGE IN THE CAYMAN ISLANDS by CHAI RIDGERS and NICK HOFFMAN of Harneys 

+ APPOINTMENTS OF THE WEEK at CADWALADER and EXCELLO

+ E-VENTS

THE LEGAL DIARY OF THE WEEK

Law Books Galore

There will be an impressive legal line-up next Thursday evening at at 2 Temple Place when the International Law Book Facility (ILBF) celebrates its fifteenth anniversary. Over that time the charity has distributed more than 72,000 legal textbooks to 200+ organisations in 54 countries including developing countries, for use by law students, teachers, lawyers and judges.

Happily presiding over the event will be the ILBF Patron – and founder – the  Rt Hon. The Lord Thomas of Cwmgiedd but guests will also enjoy the wit and wisdom of Rt Hon. The Lord Burnett of Maldon, Lord Chief Justice of England and Wales and the sagacity of Professor Richard Susskind OBE, the IT guru and adviser to major professional firms and to national governments. The event will also launch the ILBF’s inaugural essay competition for law students across the UK which asks them to think about how the practice of law will be transformed over the next decade. The fortunate winner will receive an internship at Brown Rudnick.

For more go to https://ilbf.org.uk/ and for a video go to https://brownrudnick.com/news_post/ilbf-celebrates-15-years-of-promoting-access-to-justice-and-legal-education/

Hold Ups in ‘Windrush’ Compensation

If Yorkshire Cricket Club has become (for the time being at least) a simile for ‘racism’ so Windrush is shorthand for ‘justice denied’. That’s why the JUSTICE Working Group has now published its Reforming the Windrush Compensation Scheme report.

The trials and tribulations of the younger members of the Windrush generation who lacked the paperwork necessary to demonstrate their lawful immigration status have been well-documented. Appropriate compensation is now available – in theory – but the scheme has proved to be woefully difficult to access, lacks independence and suffers from delays and inconsistencies in decision-making. On top of that its awards fail to reflect claimants’ losses. In other words, you might say, it’s a typically British illusory solution to a genuine grievance.

Dechert is now backing JUSTICE’s report for reform which sets out 27 recommendations to improve the administrative and procedural aspects of the Scheme. “Through this Working Group and Dechert’s own pro bono casework supporting Windrush claimants, in collaboration with the Joint Council for the Welfare of Immigrants and six other law firms, we have seen first-hand the challenges faced by individuals seeking redress,” says Tim Bowden, Dechert partner and member of the JUSTICE Working Group. “This report makes practical proposals which are readily implementable, and we hope it will lead to significant changes in the scheme to ensure that claimants are fully and fairly compensated.”

To read the Reforming the Windrush Compensation Scheme report go to

Got to Go Now

Covid turned the world upside down and we are still trying to work out the long term consequences. Indeed, maybe like the Black Death in the 14^th century, it may take decades for the full consequences to work their way through.

What is clear now, however, according to a survey of lawyers undertaken by Thackray Williams, is that the pandemic has been detrimental to individual careers prompting a majority of lawyers to consider looking for a new role.

The discordant feature is that, notwithstanding their dissatisfaction, 76% of law firm staff said they were well treated by their employers during the pandemic and 30% felt more positive about their employer than before Covid. But that did not compensate for their view that it is now time to move on. In short the past 18 months has been a major disruptor and a catalyst for unrest

.Among the most common goals are a better work/life balance (69%) and more opportunities for promotion and progression (48%). (Oh and, of course, more money). But poor internal communication was cited as a major cause for unhappiness along with poor technology (35%) and inadequate systems for managing mental health and wellbeing (34%). “In an era where lawfirm culture is just as important as pay, the results of this survey present a timely reminder for firms to keep communication and employee wellbeing at the top of their agenda.” said Sean Sanders, managing partner of Thackray Williams.

“Financial remuneration always ranks highly for candidates, but flexible working is no longer a nice to have – it is essential,” added Leilani Reader of LR Legal whoch co-operated on the survey. “Most legal professionals will not even consider a law firm if they don’t offer flexibility or aren’t actively investing in their culture.”

Eyes on Ireland

With the EU’s Vice-President Maroš Šefčovič meeting Lord Frost today this could be another (correction, yet another) critical moment in trying to unravel the knotty Northern Ireland Protocol.

Meanwhile south of the border things are going pretty well as laid out in the latest edition of Dominic Carman’s REPORTS LEGAL which is entirely dedicated to Ireland.

With Facebook, Microsoft and Google all heavily invested in the Republic and Amazon also due to open a high tech hub the good times are flowing for Irish law firms in what is becoming a heated-up market. The local rankings list is still dominated by Ireland’s own version of the Magic Circle – Matheson, A&L Goodbody, Arthur Cox , McCann Fitzgerald, and Mason Hayes & Curran but London names now also feature in the Top 20 – notably Eversheds Sutherland, Freshfields, DAC Beachcroft and Pinsent Masons.

“Ireland is becoming such a hugely important jurisdiction, particularly for overseas expansion of internationally focused corporations,” says Alan Connell of Eversheds in Dublin. “There’s a significant challenge for the status quo in the Irish legal market because the larger firms have relied heavily on international referrals in order to operate at the level they have been doing for many years. The influx of international firms will inevitably mean that the quantum and level of those international referrals will reduce somewhat. As a result, something has to change. Whether that’s more alliances, tie ups, or mergers in that space, I definitely see more consolidation in the market. It’s becoming somewhat inevitable.”

Read more at https://reportslegal.com/ireland-report/

This Case is Worth Crowdfunding

Simon Hawkins and his wife, Penny Ericson were victims of the notorious Interest Rate Hedging Product (IRHP) which was forced on to them by the HBOS team in Reading in the late 2000s. This policy proved to be disastrous and led to the couple losing what would otherwise have been a very successful business. As Hawkins puts it,  “What I didn’t know at the time was that I was being deceived and coerced into taking out a totally unnecessary and unsuitable product solely so they could earn £120,000+”

Hawkins and Ericson are now seeking justice and compensation from   Lloyds (LBG) which took over HBOS.  “In 2019 –11 years after the bank ruined me – and, following a review of the handling of my claim, the FCA informed me that it had not been reviewed correctly and that Lloyds’ behaviour “did not meet the standards expected of them,” explains Hawkins.

The couple are now seeking crowdfunding to pursue their claim. The full story is available at https://www.crowdfunder.co.uk/truth-for-justice

If you feel any embarrassment at how ‘big law’ and ‘big finance’ bully the little people it is worth looking at – and probably supporting.

LEGAL COMMENT OF THE WEEK

TOPIC: Revelations about racism in cricket and at Yorkshire County Cricket Club in particular.

Nick Le Riche  Partner at BDB Pitmans comments:

 “Azeem Rafiq’s powerful evidence to the Department of Culture Media and Sport’s committee underlines the huge emotional impact on an individual and their family where they feel they have been subjected to race discrimination. 

 “Whilst it is not right at this point to pass judgement on how Yorkshire reacted in this matter, it is very clear that it is vital for all employers, particularly in this day and age, not to make assumptions when employees come forward with allegations of discrimination and harassment ; not to rely on “culture” or “banter” as an excuse, and for them to be prepared to investigate complaints independently and fairly without any pre-judgment.

 “Given the statements made by Rafiq and Yorkshire chairman Roger Hutton to the committee it does appear surprising that no disciplinary action was taken against Yorkshire staff since the investigation report found that  Rafiq had been subjected to racism.  While training and education can be part of the required improvements, it is vital for organisations to show that racism isn’t tolerated and disciplinary action, even if this doesn’t go as far as sacking individuals, makes a very important statement in this respect.”

TOPIC: Amazon’s announcement that it will stop accepting payments made using Visa credit cards issued in the United Kingdom from the New Year.

 SIMON de BOISE, Senior Associate at Collyer Bristow LLP, comments:

 “It remains to be seen whether Amazon will make good on its threat, or whether there is a deal to be done, but either way it is a very significant development in the payments sector.

 “The announcement that Amazon will stop accepting payments made by Visa credit cards demonstrates how much the payments sector has matured in recent years. Consumers have far more payment options available to them now, following the rise of the fintechs, e-money providers and e-wallets etc, and consumer confidence in these products has grown substantially.

 “Such a move against one of the card schemes would have been unthinkable even a few years ago, but retailers are now starting to benefit from the proliferation in the sector and so may feel that they can move away from the traditional players without damaging their businesses.”

TOPIC: The HMI Probation report on the criminal justice journey for people with mental health needs

JABEER BUTT OBE. CEO of the Race Equality Foundation, comments: 

“This report paints a grim picture of a criminal justice system that is failing people with mental health needs. 

“It’s worrying enough that people from Black, Asian and minority ethnic groups are disproportionately represented in both the criminal justice system and in mental health services. But this report also highlights that despite the work done by the Race Equality Foundation to identify some services available to address the mental health needs of ethnic minority people, there is scarcely any evidence that probation leaders are reaching out to source or access specialist services. 

“This is perpetuating a cycle in which ethnic minority communities continue to be denied the tailored support that would prevent them from entering the criminal justice system or needing to use mental health services in the first place.”

TOPIC: The legality of employers adopting a ‘No jab, no job’ policy.

MARIE HORNER, partner in employment law at Langleys Solicitors comments:

“Commentary on the situation is plentiful at present but sometimes misleading. Employers might be forgiven for believing that they are entitled to simply dismiss those members of staff who are unvaccinated without further ado, or to place them on unpaid leave whilst a decision is taken. However, such approaches would almost certainly be misguided.

 “Employers must take care to factor in the individual’s contractual terms, and to ensure that all alternative options to dismissal are exhausted. Contracts containing specific terms allowing an employee to be placed on unpaid leave pending a decision are also likely to be the exception to the norm. Care must be taken in relation to each individual employee’s reasons for not having the vaccination, with one eye on, for example, potential discrimination issues.

 “Finally, if the decision is still to dismiss, having considered all factors, employers must ensure that any termination is effected in accordance with the provisions of the employment contract.”

TOPIC: Google’s failed appeal against a €2.42bn EU competition fine over its shopping service. ALINA POPESCU of MPR Partners, comments:

 “In last week’s decision, the General Court resorts to the concept of “self-preferencing” as a theory of harm in its own right under EU competition law. The General Court agreed with the European Commission that Google had abused its dominant position on the general searches market by favouring its own specialised search services (comparison shopping services). 

“Self-preferencing is a target for the EU’s Digital Markets Act, which prohibits this practice when perpetrated by companies deemed as “gatekeepers”. Whilst the Digital Markets Act is still undergoing enactment, the theory of harm used by the European Commission, as vetted by the General Court, as well as the existing climate surrounding big tech and the conclusions of the various market studies commissioned in relation to the development of digital markets legislation will likely serve as a deterrent to big tech against similar practices.”

CONTRIBUTED ARTICLES OF THE WEEK

THE CHANCERY LANE PROJECT: How ‘Off-the-shelf ‘ contract clauses can ‘Keep alive 1.5’

by LEONIE BRABANT, Project Associate

Lawyers are not your obvious choice of people to save the planet. Post COP26 and the compromises that were made to secure the Glasgow Climate Pact, it is clear that if the 1.5 degrees Paris Agreement goal is to be kept alive, private and public sector organisations will need to take significant action immediately to turn their net zero pledges to action. This is where lawyers come in.

Contracts are a much quicker way to implement climate goals than waiting for legislation and regulation to be made and to take effect. Lawyers also have precisely the skills that are needed to help their clients manage the climate risks that are increasing in number and intensity around the world.

The Chancery Lane Project (TCLP) is a collaborative pro bono initiative that provides over 100 free climate clauses to help lawyers and organisations address climate risks and impacts and achieve their net zero targets. The clauses cover multiple practice areas and sectors including commercial supply chains, corporate governance, finance, real estate and insurance. TCLP have recently published their Net Zero Toolkit, which provides a suite of resources to help legal professionals understand net zero concepts and how to incorporate them into their contracts.

Rather than locking in high-carbon emissions and perpetuating business-as-usual, lawyers can add clauses to contracts to address climate risk and impacts and ensure that business operations are aligned with net zero targets.

So if you are worried about the pace of climate action, be part of the solution and start embedding the clauses in your contracts today.

https://chancerylaneproject.org/

CLOGGING UP THE FAMILY COURTS: Should couples face financial penalties? asks HETTY GLEAVE, partner in the family law team at Fladgate

Government plans to penalise parents for fighting over their children in court is welcome news to the overstretched court system.  However, is it fair?

Mediation has long been encouraged by the family lawyers as a cost-effective and less adversarial way of resolving children disputes.  Warring parents can explore their differences, using a mediator who will keep the conversation focussed and constructive. There seems little justification for using valuable court time and resources to decide, often mundane issues such as amount of time the children spend with each parent, when there is a backlog of more serious care and child abuse cases.

However, many parents adapting to life after separation find it difficult to assume a new co-parenting role and to prioritise their children’s needs above their own feelings. Parents should consider the impact on their children of the physical, psychological and emotional consequences of being caught in the crossfire. Sometimes however, only a judge imposed decision will finalise matters, especially if it carries sanctions for non-compliance.  

Costs sanctions may also be justified in cases where a parent uses proceedings as a threat, knowing that the other parent is unable to fund the proceedings or deal with them emotionally, in the hope they will concede at an early stage.  If matters could have been agreed with a more realistic or reasonable approach, and there are no serious child welfare issues at stake, is it so wrong that the court should retain discretion to decide whether parents should also pay for their day in court?  The public purse must be protected and Courts may soon have the power to read just both the financial and the emotional balance if they feel that the circumstances are right to do so.

ALL CHANGE IN THE CAYMAN ISLANDS

The changes proposed in the Cayman Islands’ Companies (Amendment) Bill 2021 are likely to have significant consequences for practitioners in the UK explains CHAI RIDGERS, Head of Restructuring, and NICK HOFFMAN, Cayman Islands Managing Partner of Harneys

 The Cayman Islands government has published a Bill which, if passed, will provide a company breathing space to restructure its debts through a refined scheme of arrangement process. The scheme will be protected by an automatic extraterritorial moratorium (viz. unsecured creditors) and a Court appointed supervisor (a Restructuring Officer (RO)). With this, it is hoped the new process will qualify as a “collective insolvency proceeding” for recognition and assistance purposes by Model Law countries and similar jurisdictions.

The refined scheme process will be available to both Cayman Islands and foreign debtors (with qualifications) and will, so long as “efficacy” is likely, compromise both Cayman Islands and foreign law governed debt. This will maintain and improve the necessary ecosystem for the Cayman Islands to continue as a global restructuring hub.

For English law debt, a Cayman Islands scheme can restructure foreign debt if the Court can be persuaded that it will be given “efficacy” in that foreign jurisdiction either by recognition or the absence of dissentient creditors. The Cayman Islands will therefore continue to follow the “rule in Gibbs”. In view of Brexit, England may no longer be a gateway for European recognition of Cayman Islands Court restructurings, and further recognition applications may need to be made on the continent.

The RO regime has been designed to be used alongside English Court processes. Furthermore, English insolvency practitioners are permitted to be appointed together with a Cayman Islands RO. English legal practitioners are likely to be particularly interested in their role in making applications to “recognise and assist” restructurings within the Cayman Islands courts. A test case is needed, however, to establish the boundaries of any assistance that the English Court will grant. It is hoped that the Grand Court of the Cayman Islands and the English Courts will work together to compromise debts and rescue companies within the spirit of the new regime.

APPOINTMENTS OF THE WEEK

Cadwalader, Wickersham & Taft LLP

Michael R. Bergmann is joining Cadwalader, Wickersham & Taft LLP as a partner in the firm’s Corporate Group and will be based in Washington, D.C.

Formerly with Skadden, where he was a member of the firm’s Executive Compensation and Benefits practice, Bergmann counsels clients on executive compensation, employee benefits and ERISA matters. He devotes a significant portion of his practice to advising major public corporations and private companies on executive compensation and employee benefit arrangements in the context of mergers and acquisitions and other transformative business transactions.

“Michael is a highly experienced and highly regarded executive compensation lawyer,” said Cadwalader managing partner Pat Quinn. “We know he will be an important advisor to our clients and an outstanding leader of our executive compensation practice.”

Excello Law

Not so much a single individual but a whole team from specialist property litigation firm Rex Cowell Solicitors, led by Rex Cowell himself and assisted by Robert McLellan, has moved its practice to national consultancy law firm Excello Law.

The Rex Cowell team, which is based in Kent, specialises in all types of landlord and tenant disputes in commercial and residential properties, as well as advising on land disputes such as easements and boundaries.

“We have successfully transitioned seven firms to Excello Law in recent years and have developed a comprehensive and supportive programme to ensure a seamless and supportive process,” said Joanne Losty, recruitment director at Excello Law. “We are delighted to welcome the Rex Cowell team and we look forward to working with other similar specialist practices who are looking to join a supportive and collaborative firm.”

E-VENTS

If you have enjoyed this edition of the LEGAL DIARY please relay on to friends and colleagues.

We’ll be back next week so please send your Diary stories, legal insights and commentaries to

fennell.edward@yahoo.com