Edward Fennell’s Legal Diary – Edition 84

Friday 3 December 2021 

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

SHORT THOUGHT FOR THE WEEK

Today the Parliamentary JUSTICE COMMITTEE has launched a new inquiry to investigate the criminal justice system’s approach to combatting fraud. The need is urgent.  The first half of 2021 saw a 285% rise in online fraud fuelled by the increased use of online platforms during the pandemic. And it is calculated that 350 people a week are victims to a fraud that leaves them in severe emotional distress.

Fraud is one of those crimes which shades into the world of the commercial law business. Like money-laundering it can entangle even reputable law firms. Among a number of questions being followed up by the committee are:

• How the Justice System conducts fraud investigations and prosecutions;
• The roles of the Crown Prosecution Service and the Serious Fraud Office in the prosecution of fraud;  
• The prosecution of frauds that are not of sufficient scale to be investigated by the Serious Fraud Office; 
• Problems with evidence and disclosure in the prosecution of fraud cases;

It is quite possible that you – or some of your colleagues – might have useful insights to offer on these issues and, if so, the Justice Committee would be keen to hear from you. More information on how to submit evidence is available here

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

– Wig & Pen Prize for pro bono legal work goes to Angela Dimsdale Gill

– Scots Do Love a Lawyer

– No Gulf Too Wide for Expat Law

– Eversheds Sutherland launches its SQE Academy

– Pedlars Pull in £130K for Breast Cancer Now

– Cool Support for Tech Start-Ups

+ LEGAL INSIGHT OF THE WEEK

– TOPIC: Meghan versus The Mail – The latest developments!

– TOPIC: The ICO’s decision on Clearview AI 

+ CONTRIBUTED ARTICLES OF THE WEEK

– Getting Ready for the UK National Security and Investment Act: The View from Sidleys

+ APPOINTMENTS OF THE WEEK at Seladore and AG

+ E-VENTS

THE LEGAL DIARY OF THE WEEK

Wig & Pen Prize for pro bono legal work goes to Angela Dimsdale Gill

Angela Dimsdale Gill of Hogan Lovells has been named as the winner of this year’s Wig & Pen Prize in recognition of her thirty year involvement in pro bono work. Awarded jointly by the City of London Solicitor’s Company and the City of London Law Society the award celebrates the pro bono legal work of City lawyers.

Dimsdale Gill was instrumental in setting up the full-time pro bono practice at Hogan Lovells in 1997 which is believed to be the first of its kind in the UK and continental Europe. She herself has become very involved in providing pro bono support to clients across a range of innovative, complex, and often traumatic issues. Among these she is particularly celebrated for her work with the Hostage International organisation through which she has provided advice and support to individuals and families dealing with a kidnap or disappearance.

‘Over the course of a brilliant career, Angela Dimsdale Gill has made – and continues to make – an outstanding pro bono contribution to the law,” said Edward Sparrow, Chairman of the City of London Law Society, “She is a worthy winner of the 2021 Wig & Pen Prize. As well as demonstrating understanding of complex and often highly specialist legal issues, she has acted at all times with compassion and empathy for those she advises. Her impact on the pro bono landscape in the City deserves acclaim.’

Scots Do Love a Lawyer

Do the Scots have a certain softness for lawyers? Given the widespread popularity of Nicola Sturgeon you might think that there must be something else going on beyond just the competence (or otherwise) of her Government. So maybe it’s her legal qualification which gives her that extra boost because, according to polling undertaken by the Law Society of Scotland, there is 90%+ client satisfaction with the performance of Scottish solicitors by the public.

This represents, the Society says, a ‘huge vote of confidence’ in the profession and showed that members of the public place ‘high levels of trust in solicitors and said they are highly trained professionals’. Further evidence of this, it has to be admitted, is offered by the recent TV series Guilt where the clients had a touching level of confidence in the alcoholic lawyer and in Shetland where the dodgy solicitor was much admired all-round. Could this be replicated south of the border, one wonders.

No Gulf Too Wide for Expat Law

Now here’s an interesting development. Niche firm Expatriate Law is opening a new office in Abu Dhabi to provide an on-the-ground international family law advice to expats and families with links to England who are living in the UAE and across the Middle East.

Leading the office will be award-winning partner Byron James who has been based in the Middle East for several years and has an expert understanding of the local law and culture and, in particular, the way in which it affects expatriates.

“For  expats it can be especially  difficult to know where to turn for accurate and trusted advice in the event of marriage breakdown,” says James. “The effective conduct of a cross-border divorce requires technical knowledge combined with practical experience of a number of niche areas of law.  It is essential that clients seek out the assistance of a lawyer who is able to deliver strategic advice relating to, for example: choice of jurisdiction for divorce, domicile residence and nationality, international injunctions, recognition of foreign marriages and divorces, stays and forum disputes, cross-border enforcement and financial relief in the English courts following an overseas separation.”

Expatriate Law is ranked in Band 1 for Family Law – High Net Worth in UAE by Chambers & Partners.  

Eversheds Sutherland launches its SQE Academy

Week-in, week-out it seems that leading law firms are innovating in how to train and develop their paralegals. So this week it’s the turn of Eversheds Sutherland (International) which is launching a ‘Solicitors Qualifying Examination (SQE) Academy’ for its existing cohort of paralegals in the UK. This take advantage of the new legal qualification route introduced this year by the SRA and will provide the required training, preparation course, work experience and supervision to enable the paralegals to become qualified lawyers. To get the scheme going the firm will support ten paralegals, with paid time off each week for their studies.’

“Our SQE Academy will enable our candidates to move their careers through training to qualification as lawyers over the next two years,” commented Lorraine Kilborn, Chief People Officer, Eversheds Sutherland (International). “By opening up a new route to a legal career for candidates who will come through from more diverse backgrounds, we are reflecting the communities we operate in and meeting the demands of our clients who look to our firm to invest in and shape the future of legal services.”

The firm has also launched in recent months a Legal Technology Graduate Scheme and a  Risk and Compliance Graduate Scheme

Pedlars Pull in £130K for Breast Cancer Now

‘Lawyers in lycra’ cycled their way to a massive £130,000 for the charity. Breast Cancer Now in this October’s ‘Tour de Law’ fund-raiser. Competing in teams of up to ten 1,300 legal professionals from 54 offices across the UK were involved and managed to complete – virtually, of course, mostly on static or gym bikes – a total of 43,876.25 kilometres.

Coming out on top as #TourdeLaw2021 Cycle Your Way champions was the ‘Underdogs’ team from Simpson Thacher & Bartlett which managed to pedal–push furthest over the course of the weekend of the event. Meanwhile Ward Hadaway and CMS zipped in not too far behind.

Among other leading outfits involved were Squire Patton Boggs, Duncan Lewis Solicitors, Kirkland & Ellis LLP, Graysons Solicitors, DLA Piper, Clifford Chance, Stowe Family Law LLP, Cloisters, Reed Smith LLP and 2 Harcourt Buildings. Appropriately enough Wheelers Solicitors also took part.  

“It’s been a real treat to get everyone on their bikes and working as a team,” said Simpson Thacher & Bartlett. A huge thanks to all the different teams that took part. We look forward to doing it all again next year!” 

If you’re interested in taking to the saddle in 2022 contact  tourdelaw@breastcancernow.org.

Cool Support for Tech Start-Ups

US law firm Cooley has announced plans to direct its experience in DEI (diversity, equity and inclusion) to the UK tech industry via its London office. The firm is partnering with Libra (Tech Nation’s growth programme for start-ups with at least one Black or multiracial founder) to provide access to capital, commercial opportunities and professional networks to entrepreneurs from under-represented backgrounds.

As part of the partnership Cooley will offer practical guidance on how to secure institutional investments to a cohort of 30 companies, most of which are at the ‘seed or pre-seed’ stage or have yet to raise their first funding rounds.

“With under-represented founders facing a historic lack of access and a significant lack of diversity within venture capital, we are excited to partner with Libra as they drive change around how capital is allocated and accessed,” said Chris Coulter, a London-based Cooley partner and member of the firm’s diversity committee.

 Over a period of six months, the 30 cohort companies will enjoy 60+ hours of support and mentoring by world-leading scale coaches on fundamental growth challenges – from fundraising to international expansion.

“I am confident Cooley’s contribution will help under-represented founders on their growth journey and provide vital support for these companies to take with them long after they complete the program,” said Abi Mohamed, who leads the Libra program at Tech Nation.

LEGAL INSIGHTS OF THE WEEK

TOPIC: Meghan versus The Mail – The latest developments! 

On the Privacy issue……..  Steven Heffer, Partner and Head of Media & Privacy at Collyer Bristow,comments:

In general terms, privacy law requires the Court to balance the Claimant’s right to privacy against the rights of the press to publish matters which are in the public interest, but this is not the same as what the public may be interested in reading. 

The court has repeated that the contents of the letter were private personal and not matters of legitimate public interest.The Mail had relied on new revelations about the drafting of the letter but this was not enough to counter Meghan’s very strong claims to privacy and copyright. Had they persuaded the Court of Appeal, even to tip the balance in favour of ordering a trial this would have been regarded as a major victory for the press. As things stand it is another bad loss for the Mail and they will face heavy costs consequences, as well as damages.

None of this is new law, the courts deal with this balancing exercise all the time in media cases. An individual has the right to a private life, and to keep information private, but the media has a right to publish information if there is a genuine public interest in the story. It is clear that the Mail failed to establish any such public interest in this case.”

On the outcome of the appeal ……Steven Heffer comments

 The outcome of the appeal should not surprise those who have closely followed the legal principles involved in the case, despite the heavy legal fire power brought into play by the Mail.

 The case was originally decided by a senior and respected High Court Judge who had practised as a media lawyer often acting for newspapers. He could not be accused of being Claimant friendly. His reasoned judgment set out in detail why she was entitled to judgment without a trial. That was hard for the Mail to take as they wanted the spectacle and drama of a big trial with cross examination of Royals and Royal aides.

…..Michael Gardner, Partner at Wedlake Bell, comments

 “Good news for Harry and Meghan from the Court of Appeal. The Court of Appeal has dismissed an appeal by Associated Newspapers against an earlier High Court ruling in favour of the Duchess of Sussex.The Court upheld her claim that the publication of the letter was an unlawful intrusion into her privacy.

There was no need for the Mail to have published so much of the letter.  The Duchess’s right of privacy was not outweighed by the Mail’s right to freedom of expression. The new evidence unearthed by the Mail ahead of the appeal hearing in the form of a statement from Jason Knauf did not affect their judgment. There was no need for a trial of the claims.  The High Court ruling was upheld. The Court accepted the Duchess’s apology for her lapse of memory.

TOPIC: Decision by the UK Information Commissioner’s Office to issue its first non-data breach-related fine under the GDPR against facial recognition company Clearview AI

Edward Machin, a lawyer in Ropes & Gray’s Privacy, Data Protection and Cybersecurity team comments:

Announcing its ‘provisional intent’ to issue a ‘potential fine’ suggests that the ICO may now be incorporating an element of self-preservation in its approach to enforcement. This approach looks more like the starting point for a discussion about liability rather than a final and unilaterally determined penalty. Given that each of the ICO’s provisional fines have been reduced on appeal, often significantly, there’s logic in wanting to avoid a similar fate in future cases. But having publicly trailed a large headline figure, if the final penalty is reduced or scrapped entirely it risks the ICO being seen as a regulator that struggles to get its largest enforcement actions across the line.

CONTRIBUTED ARTICLES

Getting Ready for the UK National Security and Investment Act

Alessandra Moroni, Associate & Patrick Harrison, Partner in Sidley’s Private Equity team and Sven De Knop, Partner for Sidley’s Global Arbitration, Trade and Advocacy teamhighlight the implications of the new Act

Consistent with recent investment screening reforms across Europe, in April 2021, the United Kingdom (UK) adopted the National Security and Investment Act (NSIA). NSIA introduces a comprehensive investment screening regime that will apply from January 4, 2022, with significant implications for ongoing and future transactions. Significantly, the UK government will screen investments both in domestic UK businesses and offshore businesses with connections to the UK (e.g., a UK subsidiary or contracts to supply critical goods to UK customers).

NSIA requires certain investments into ‘critical’ sectors (e.g., data infrastructure, artificial intelligence, dual-use items) to be approved prior to closing. NSIA also empowers the UK government to ‘call in’ for review transactions that are otherwise deemed to pose national security risks, whilst also giving investors the option of requesting a voluntary review.

What should parties to a transaction bear in mind?

1. Approval requirements: Parties will have to assess whether pre-closing approval is required or whether the risk of a call-in warrants a voluntary filing, and should consider the likelihood of the transaction being prohibited or subjected to conditions.

2. Contractual provisions: Transaction documents should reflect the requirement to obtain approval, or the decision to make a voluntary filing. For transactions that may close on or after January 4, 2022, parties should consider a ‘springing condition’, to ensure that relevant approvals are obtained if closing only takes place after January 4, 2022.

3. Timing: Parties to transactions that may close on or after January 4, 2022 should consider (a) that there may be a rush of notifications on or shortly after January 4, 2022, which might delay approval, and (b) that there may be a benefit to engaging with the relevant department – the Department for Business, Energy and Industrial Strategy – in advance of January 4, 2022, to ensure as smooth a process as possible. Parties to transactions set to close before January 4, 2022 should also assess the risk of a call-in and make sure that contractual provisions give them the ability to apportion risk appropriately.

APPOINTMENTS OF THE WEEK at Seladore and AG

Gary Milner-Moore has joined Seladore Legal which specialises in complex cross-border disputes.

 Formerly with Herbert Smith Freehills (HSF), where he was a senior equity Partner, Milner-Moore has worked on international insolvencies including the global insolvency of Nortel, one of the largest corporate bankruptcies in history. He has also advised major financial institutions, including in relation to financial derivatives. andoccupied various roles in the firm’s disputes practice and lead on a number of high-profile client assignments. As a qualified Solicitor Advocate, he has appeared both in Court and in arbitration proceedings.

At Seladore, Milner-Moore reunites with a number of former HSF colleagues, including Seladore founder Simon Bushell, and Partners Gareth Keillor and Kevin Kilgour. Simon Bushell commented: “Gary’s intellectual prowess, collegial nature, and his resilient character are well known to us and he is a natural fit for Seladore. He is an exceptionally good lawyer with a notable reputation for conducting heavy cross-border disputes of real complexity and importance. We are delighted to welcome Gary to the practice.”

Jacqueline Heng has joined Addleshaw Goddard in their Debt Capital Markets team.

Qualified in England and New York and formerly with Norton Rose Fulbright Heng has particular expertise in green and sustainable bonds and isable to advise across multiple jurisdictions. Her recent work has included advising HSBC, NatWest Markets, Sandvik, Ecobank and Scotiabank.

Heng’s recruiment is part of the current drive by Addleshaw Goddard to grow both its domestic and international offering – especially in finance. She has been recognised as a Next Generation Partner by Legal 500 and a Rising Star by IFLR.

“ESG (Environmental, Social, and Governance)-related finance has never been more important to our clients, and Jacqueline’s specialist knowledge here adds to an already enviable bench strength of recognised experts in this space,” said Amanda Gray, Divisional Managing Partner for Finance. “AG has made a real name for itself in the sustainable finance sector and this is a sign that we are committed to continuing our focus.

“With Jacqueline’s arrival, 41% of the London Finance partner group are women. We’re committed to building diversity in every sense as we know that diversity of perspective improves our overall offering to both our clients and our people.” 

E-VENTS

GRESHAM COLLEGE – JUDICIAL RACISM

The 2017 Lammy Report shows Black defendants get worse outcomes if tried by judges
Black defendants get worse sentences for the same crimes than white defendants
Lecture sets out seven steps to help judges make fairer decisions.

Learn more through the online lecture on Judicial Racism and the Lammy Review on 7 Dec, 6pm, by Professor Leslie Thomas QC. In this lecture Professor Thomas will look at this history of judicial racism in England, at judicial racism today, and at what society can do about it. He will draw on his experience as a practising barrister and on research showing that judicial racism exists, for example that black defendants get better outcomes via a jury trial than if they are tried by a judge; and black defendants generally get worse sentences for the same crimes than white defendants. He will also look at the underrepresentation of Black and Minority Ethnic people in the Judiciary.

“Most people know that the English legal system has long had a race problem. Yet, we often attribute this to policing only, allowing the wider justice system – judges in particular – to get off scot-free. However, judicial racism has, and still does, play a critical role in perpetuating racial inequity.” Professor Thomas will say

In the lecture Professor Thomas will go on  to look at 7 suggested steps to ending judicial racism, including “swift and decisive disciplinary action against judges who make racist comments in court or who treat litigants and lawyers of colour with disrespect”; and a requirement for judges “to communicate, outside of a court setting, with people and communities for whom their decisions impact.”

You can sign up to watch this lecture via the link below

Judicial Racism and the Lammy Review

6 pm -7pm GMT, Tues 7  December, online (or watch later)

gres.hm/judicial-racism

We hope that you have found this edition of the LEAL DIARY of some interest.

If so, please relay on to colleagues and friends.

We plan to be back next week so please continue to send your Diary stories, insights and legal comment to

fennell.edward@yahoo.com

Have a good weekend – and hope that you don’t get too cold!