Edward Fennell’s Legal Diary – Edition 90
Friday 28 January 2022
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK
You take your life – as well as your career – in your hands when you become a lawyer. LawCare, the legal mental health charity, has reported that legal professionals in the UK are at high risk of burnout with 69% having experienced mental ill-health and 1 in 5 saying they have been bullied, harassed, or discriminated against at work. So, however generous the salaries of young lawyers – and, as we know, they are rocketing by the day – they still might not compensate for the mental wear-and-tear that people experience.
According to Robbie Weston, Executive Director at Howden Employee Benefits & Wellbeing, “Law firms need to proactively support employee health and wellbeing, including mental health, and include this in their wider company offering if they want to attract the right people. The war for talent is likely to grow fiercer this year, so making changes now to improve company culture and ensuring employee benefits are fit for purpose is vital for recruiting and retaining the best people.”
So, as the masks come off over the next week this could be the critical moment – a change for the better or a reversion to type?
The LegalDiarist
In this week’s edition
LAW DIARY OF THE WEEK
– ‘There must be some way out of here’ cry many young barristers
– No Change at the Top of the Law Firm Brand Index
– Bloody Legacy of the 1980s at Treloars
– Boodle Hatfield Marks Tri-centenary
– Good Time to be a Cost Lawyer
LEGAL COMMENT OF THE WEEK on Changes to the Highway Code, Mike Lynch extradition, Love Islanders’ Non-disclosures and Self-Driving Vehicles
CONTRIBUTED ARTICLES
The benefits of extending auto-enrolment by Rhiannon Barnsley
How effectively are we fighting Economic Crime? byJohn Binns
The Need for Speed: There’s a better way technologically for lawyers to negotiate contract changes, says Richard Mabey
Why collaboration between solicitors and financial planners can be the best approach for clients’ selling their businesses, explains Lorraine Denton
APPOINTMENTS OF THE WEEK at Shakespeare Martineau and the UK Government’s International Data Transfer Expert Council
LAW DIARY OF THE WEEK
‘There must be some way out of here’ cry many young barristers
The dream of becoming a lawyer is quickly going sour for a significant minority of 25-30 year olds according to the reportLife at the Young Bar published by the Bar Council this week.
The figures are stark. More than 15% of young barristers want to leave the profession citing unmanageable workloads. “There’s lots of burnout within the team,” said an employed commercial barrister. “We’re working lots of 14-hour days.”
One of the key grievances is the view that work falls to heavily on the shoulders of those at the start of their careers. Only around half believe work is allocated fairly – and many say they “desperately” need their workload reduced. In line with this the young barristers “overwhelmingly” oppose extended operating hours within courts.
Meanwhile there are familiar concerns about discrimination with the report observing, “Discrimination against women and under-represented groups in the Young Bar appears to be deep-rooted and needs to be stopped.”
The sad feature of these findings is that most young barristers still believe in the value of the work and gain satisfaction from it – provided it is at sustainable levels. “Much of the foregoing appears to paint a negative and bleak picture of working life at the Young Bar,” said the report. “While a minority in the focus groups were struggling to see a sustainable future, most did express some joy or powerful feelings of satisfaction with their profession, especially valuing its purpose and collegiality.”
Michael Polak, Chair of the Bar Council’s Young Barristers’ Committee said that lessons need to be learned. “This research should act as a wake-up call for those interested in the future of the profession,” he said “It’s clear we need to modernise the way that the Bar operates.”
Life at the Young Bar was produced by the Careers Research & Advisory Centre (CRAC) and is based on responses to the 2021 Barristers’ Working Lives (BWL) survey and other data.
No Change at the Top of the Law Firm Brand Index
It’s the ‘same old, same old’ with Baker McKenzie continuing to monopolise the top spot of the Thomson Reuters ‘Global Elite Law Firm Brand Index’ for the 12th consecutive year. How do they do it one wonders? With league tables such as ‘The Best Place to Live in the UK’ you can expect some movement from one year to the next. But that does not happen with the ‘Global Elite Law Firm Brand Index’. It’s always top of the heap for the Bakers.
Mind you there is a bit of movement among the also-rans. Although DLA Piper continues to be the runner-up Clifford Chance moved up two spots to third, followed by Dentons and Norton Rose Fulbright.
Indeed, fourteen of this year’s top 20 firms increased their brand index score from last year. CMS was particularly successful moving up to 13th place although there was only a single new entrant to this year’s Top Twenty – Gibson Dunn.
“This year’s index proves that it is possible to grow your firm’s brand virtually, in a remote environment,” said Elizabeth Duffy, senior director of Global Client Services, Thomson Reuters. “And while there is no single formula for success, a winning strategy is one that doubles down on a firm’s strengths and aligns closely with its clients’ changing needs today while preparing for tomorrow.”
According to the report “The ability to handle a wide variety of legal matters in multiple jurisdictions around the world clearly rose in importance this year, as clients sought support for their global business. Consideration for both multi-jurisdictional litigation and multi-jurisdictional deals are now two of the most important success factors for global law firm brands. Five of the seven fastest growing brands showed above-average consideration levels for multi-jurisdictional deals.”
So now you know.
Get your copy of the 2022 Thomson Reuters Global Elite Law Firm Brand Index at https://www.thomsonreuters.com/en-us/posts/legal/global-elite-law-firm-brand-index-2022/
Bloody Legacy of the 1980s for the Treloar’s victims
As we now appreciate, the most successful conspiracy theories often have a grain of truth in them. Don’t believe the US/UK Government? Well ‘Weapons of Mass Destruction’ might explain why. Don’t trust the health care establishment or the pharmaceuticals industry? The thalidomide catastrophe has a lot to answer for. Meanwhile, another historic healthcare horror – the infected blood scandal of the 1980s – continues to haunt us.
The latest chapter in the story came this week when a group of 36 claimants – former pupils or their representatives at Lord Mayor Treloar School (“Treloar’s”) in Alton, Hampshire – advised by Collins Solicitors lodged an application for a Group Litigation Order. (If you live in southern England you will have seen extensive TV coverage of this on BBC South earlier this week).
“We are bringing this action following new evidence heard last year at the Infected Blood Inquiry,” said Des Collins, Senior Partner, Collins Solicitors. “The extraordinary testimonies of Treloar’s former headmaster, house master, care staff and clinicians at the hospital attached to the school made clear a total abrogation of responsibility which has had immense repercussions for my clients.”
Meanwhile Gary Webster, now aged 56 and the proposed lead claimant, commented.“Why didn’t our headmaster or other teachers want to know what was being injected into pupils in their care at the time? No one at the school seemed to show the slightest curiosity over what treatment was being prescribed to us young kids nor, I now know, did they seek parental permission. It beggars belief.”
This does not excuse the attitudes and actions of the current anti-vax movement but it does, in part, explain it.
Three Hundred Not Out at Boodle Hatfield
Boodles is a great eighteenth century name. The elite club of that name has its roots in the 1760s but the law firm – Boodle Hatfield – is even older, tracing its origins to 1722.
Best known for its position in the private wealth and real estate market the firm is marking its triennial centenary by launching an extensive programme of initiatives to help dismantle barriers to entry into the legal profession and build on its work amongst local communities.
“It is a privilege to be Senior Partner of a firm with a 300-year legacy,” said Sara Maccallum, the firm’s Senior Partner. “While there are many historical milestones of great note, rather than look back at the firm’s history, in our 300th year we are very much focused on the future and how we continue to shape the firm and its activities to the benefit of future generations, clients and communities. We are merely today’s custodians of the Boodle Hatfield name, and we want to create a legacy that our successors will be just as proud of.”
What the firm now has in mind is to deliver publicly accessible guidance and insight into pressing social and legal issues from navigating the legal challenges of surrogacy to responsibly passing on wealth to the next generation.
Meanwhile it is worth remembering that the firm was actually founded – in 1722 – by a mere stripling of 19 years old, a legal clerk by the name of Robert Andrews. It just shows that successful youthful start-ups are not just a modern, tech-biz phenomenon.
Costs Lawyers Enjoying a Boom
Business seems to be booming for costs lawyers. A recent survey reported that almost half of them as saying that they are busier than ever as a result of the pandemic – and a quarter saying their businesses have had to recruit to keep up with demand.
So where is this new work coming from? It is notable that the number of solicitor/own client disputes continues to rise, from 46% in the first half of 2021 to 52% by the end of the year. Much of the work involves personal injury claims, with a lot hanging on the Court of Appeal hearing in Belsner over what constitutes a client’s ‘informed consent’ to their solicitor deducting fees from their compensation.
Interestingly only 11% of Costs Lawyers in the survey said that solicitors always stuck to their budgets, with 57% saying they sometimes went over and 21% that they always went over. Surprised?
LEGAL COMMENT OF THE WEEK
TOPIC: This week’s changes to the Highway Code
FROM: Paul Loughlin
“There is no doubt that better protection for more vulnerable road users has been long overdue and the changes in the Highway Code will go some way to close that gap. There has been much debate since the announcement of these rule changes as to whether they now go too far the other way.
“In motoring law terms, there could be more of a marked difference between how the courts deal with different road users who commit the same offence. The test for careless driving, for example, is to consider whether the standard of driving has fallen below that of a competent and careful driver.
“We may now see a clearer distinction between how a motorcyclist’s driving is assessed compared to that of a HGV driver given their different positions in the new ‘hierarchy of road users’. There is already a distinction within the sentencing guidelines for offences of this type for those driving heavier, more dangerous vehicles. It may be that the new structured hierarchy sees the need for new, more structured sentencing guidelines.
“In the immediate term, however, there still appears to be an uncertainty surrounding how these new rule changes will be acted on by road users and how they will be enforced by authorities. The concern is whether motorists and other road users are aware of these new rules and what they mean. Whilst the volume has been gradually turned up, I’m still unsure whether the message is actually being heard. Without better education and awareness, we could see swathes of motorists breaking the law and with that an inconsistency in knowledge from one road user to another, and potentially even a short term increase in accidents.”
Paul Loughlin specialises in motoring law at Stephensons
TOPIC: Mike Lynch’s interim challenge to District Judge Snow’s decision to not permit the Secretary of State more time to consider her decision in his extradition case: PLEASE NOTE THAT THIS WAS WRITTEN BEFORE TODAY’S JUDGMENT
FROM: Thomas Garner
“Mr Lynch’s lawyers wanted more time to persuade the Secretary of State to consider the doubtless mammoth judgment in the long-running Autonomy trial, which is expected to be handed down in the coming weeks. However, the High Court has decided that DJ Snow was correct in declining to postpone the case any further. In reality, the matters that the Secretary of State is entitled to consider in extradition cases have been tightly restricted ever since Theresa May blocked Gary McKinnon’s extradition. It is not clear whether considering the ruling would assist the Secretary of State to make her decision.
A favourable decision in the civil trial could provide a basis for Mr Lynch in any appeal. Still, a negative decision in the civil trial would, of course, be very damaging. It is not a black and white issue, though – lawyers on both sides will pore over the civil judgment for any findings which help their cause, and it’s possible that there could be ammunition for both sides whatever the decision. Whatever the outcome, it seems likely that Mr Lynch’s case will rumble on for some time yet.”
Thomas Garner is Extradition Partner at Fladgate
TOPIC: Love Islanders’ failure to declare their posts as being paid-for and the attempt by the Advertising Standards Authority to clamp down on influencer marketing and promotional content
FROM: James Corlett
“The ASA’s ‘CAP’ Code (the rule book for non-broadcast advertisements) is comprised of a set of rules that apply to many forms of advertising where there is payment to the individual for their service and brand editorial control. Although the ASA will not take action where there is no editorial control, the Competition and Markets Authority (CMA) will expect influencers to disclose when they’ve received payment, commission or any form of incentive for posting the content.
The Code is designed to reflect the law in which many of its provisions correspond with, such as failing to state commercial intent and avoiding unfair commercial practice.
The overarching principles are firstly that advertisements must be obviously identifiable. For example, the ASA has found that understanding of the term “affiliate” was particularly low amongst consumers. Secondly, the ad must not mislead a consumer, or be likely to do so. Caution should be taken when using words such as “free” and exaggerating an offer, as well as product information relating to pricing, guarantees and availability.
The ASA’s decision to launch a campaign exposing re-offenders shows a step up from the regulatory body’s usual sanctions and listing of influencers who consistently breach the Code. It will be interesting to see the response to the campaign and establish whether its message will have an impact on the consumers that are currently engaging with these influencers.
Its true effect on the market remains to be seen, but is obviously an attempt to ‘nudge’ the market towards compliance by education as opposed to punishment. If you are an influencer or a brand that uses them to promote your business, it would be sensible to take note of the rules as the spotlight continues to be focused on this area.”
James Corlett is a Commercial Partner at Beyond Law Group
TOPIC: The Law Commission of England and Wales and the Scottish Law Commission (the Law Commissions) joint report on the safe introduction of self-driving vehicles
FROM: Niall Edwards
“The Law Commissions should be congratulated for their thorough work over three consultations leading now to the practical recommendations for self-driving vehicles in this report.
“The devil, of course, will be in how the details are developed by government, but we feel – subject to a closer review of the report itself – that our insurer clients will be broadly supportive that the Law Commissions have taken on board many of the practical points we raised on their behalf, in particular around the difference between ‘driver assisted’ and ‘self-driving’ vehicles, minimum regulatory safety and compliance standards, the logic around hand-over/hand-back ‘transition demands’ and, critically, public buy-in.
“It is right for the Law Commissions to highlight the important distinction to the way vehicles that are ‘driver assisted’ rather than ‘self-driving’ are marketed. The public need to fully understand the differences and a harmonisation of terminology is essential. Ultimately, underpinning any successful implementation of self-driving vehicles will be public confidence.
“As such, our own extensive global research has indicated that a long-term government-led education campaign will be required if self-driving vehicles are to become a commercial reality in a reasonable timescale.”
Niall Edwards is a partner at Kennedys
CONTRIBUTED ARTICLES
Extending auto-enrolment could lead to more people saving for retirement, says Rhiannon Barnsley
Since employers became legally required to automatically enrol employees into a qualifying pension scheme, more people are saving for retirement than ever before. The introduction of auto-enrolment is widely seen as a great success. However, there is one catch – not everybody meets the requirements for automatic enrolment.
Automatic enrolment requires employers to enrol employees into a qualifying workplace pension scheme if they are (i) at least 22 years old but younger than state pension age (currently 66 years); (ii) earning more than £10,000 a year and (iii) normally working in the UK. Once automatically enrolled into a pension scheme, the employer must also make minimum contributions on behalf of the employee (usually, at least 3% of “qualifying earnings”).
Certain people are excluded from the scope of auto-enrolment, in particular young people and those on lower incomes. Recently, the think tank Onward has recommended abolishing this earning threshold and lowering the age to qualify for auto-enrolment from 22 years to 18 years to boost British pension savings by c. £2.77 trillion over the working lives of the current workforce.
Conservative MP Richard Holden has put forward a Private Member’s Bill which proposes extending auto-enrolment to those aged 18 and over and scrapping the £10,000 earnings threshold. This could be particularly beneficial to young people who could start saving for their retirement sooner. Those with part-time jobs in higher education could benefit from this too. The bill would also be welcomed by those with more than one job, who are more likely to fall short of the earnings threshold. This is because even if their total annual earnings exceed the £10,000 earnings threshold, they will fall short of the requirements to be automatically enrolled if the earnings in each job are under £10,000 a year.
The Private Member’s Bill will have its second reading in the House of Commons on 25 February 2022. If the bill is successful, it will transform retirement saving for many.
Rhiannon Barnsley is an Associate at Arc Pensions Law
How effectively are we fighting Economic Crime?
The Spotlight Report on Corruption was published earlier this week. It suggested that the UK authorities are overstretched and outgunned in their efforts to tackle this kind of corruption. John Binns, reviews how we might do better.
The new report from Spotlight on Corruption is right that the UK’s law enforcement agencies (LEAs) are under-resourced in their fight against economic crime.
But its proposal to fund that fight from penalties and forfeited monies strays into murky waters. True, the existing Asset Recovery Incentivisation Scheme (ARIS), has its issues. ARIS is designed to encourage LEAs to pursue orders that deprive offenders of the proceeds of their crimes, by letting them keep up to 50% of sums recovered.
But those orders may be at the expense of other, maybe preferable, outcomes, like imprisoning offenders, or compensating victims.
ARIS is also bureaucratic, slow to pay, and reliant on poor information systems.
LEAs’ core budgets can also be cut or adjusted, so its real benefits are less than advertised. The proposed fund would instead pool 100% of these sums, as well as penalties from relevant cases, before adding them to LEAs’ core budgets.
The idea of pooling begs the question of how the returns would be allocated to LEAs. Even the five main LEAs raise issues.
- The CPS, HMRC, and the NCA have differing functions, which go beyond economic crime. Which of their cases are relevant, and how should their shares be calculated?
- The FCA is funded by the firms it regulates, rather than the state. Would the fund give them a windfall?
- Even the SFO, the clearest beneficiary of the fund, opted out of ARIS. Would it do the same for this?
- Allocation decisions may either blunt the incentives ARIS is designed for or make them more perverse. There is also no guarantee that core budgets would be preserved, which leads us to the real point.
- The question of whether LEAs should be incentivised to pursue maximum financial orders for the state is obviously difficult. But is it the right one to ask?
Instead, we may ask why the straightforward solution – to increase LEAs’ budgets from general taxation – should be ruled out.
We all accept that this is a worthwhile fight. So why waste time working out how to split the bill, when we could just get on and pay it?
John Binns is a partner at BCL Solicitors LLP, specialising in economic crime.
The Need for Speed: There’s a better way technologically for lawyers to negotiate contract changes, says Richard Mabey
As a trainee lawyer at Freshfields in 2010, I spent most of my time using computer technology that was already 27 years old– Microsoft Word.
12 years and a pandemic later, little has changed. Contracts are agreed in Word by default, with tracked changes exchanged messily over email until an agreement is reached.
At some point, we accepted that there was no better solution. But the problems and delays are manifold: assuming all parties have the same software, constant communication is then needed to track the document’s movements; unable to collaborate in real time, making and agreeing minor changes is a painstakingly slow and repetitive process.
The demand for an alternative is still there. While 68% of in-house lawyers still agree contracts in Word, 35% now use Google Docs. But editing in real time also has its problems– one side can see the other deliberating over past and present changes, can undermine the process of negotiation.
What was needed was a solution made with lawyers in mind, guaranteeing a quick, collaborative process that could automate many of the tedious processes of editing, using tech to minimise the risk of human error around a UX that wouldn’t put off non-technical lawyers.
Arising out of this I founded Juro, a legal tech company, to change this – and this week, we received a $23m investment from Fidelity-backed Eight Roads Ventures to help us do it.
Juro’s software centres on a unique browser-based editor. Instead of Word files that need to be manually changed and emailed, lawyers and their colleagues create contracts from digital templates, and then collaborate on and negotiate them in the cloud; the network of computers to holding information in different geographical locations.
This would be nothing new for most professions, but it represents a radical step forward for legal teams who still work largely in word processors, surrounded by business teams using the latest cloud-based tools.
Radical, perhaps; but in 2021, companies processed 250,000 contracts in Juro – so we are seeing real change happen. Just as designers or software engineers work collaboratively online by default, we’re building the platform that allows in-house lawyers to do the same.
How does this change lawyers’ work? We’ve seen in-house legal teams save up to 75% of time on administrative tasks through contract automation.
Good for lawyers, and good for the CFOs who hold the company purse strings – in-house lawyers can be expensive, and their time is better spent on high-value projects and solving complex problems than administrative contract work.
This is driving adoption of Juro at technology scaleups like Deliveroo, Trustpilot and Cazoo – companies at the vanguard, now with legal teams at the vanguard too.
With $23m newly invested, Juro is poised to expand into many more exciting companies and lift the admin burden from in-house lawyers. Could this be a step forward in contracts moving away from word processors and truly into the cloud?
Richard Mabey is the CEO and co-founder of Juro
Collaboration between solicitors and financial planners can be the best approach for clients’ selling their businesses, argues Lorraine Denton
When business owners come to sell, they may have many concerns about the financial and legal implications of a sale alongside how best to achieve their desired lifestyle and retirement, whilst taking care of their loved ones.
A partnership between solicitors and financial planners can provide the best support to help guide business owners through the sale. Three questions, aligned to key stages of the business ownership lifecycle, enables us to produce a holistic financial plan.
Pre-sale – Will I be able to make my money last?
This initial stage is about getting the business in the right shape for sale by looking at all aspects, including Articles of Association and employment contracts, with a solicitor. Clients need to consider how to make their money last in retirement. Cashflow modelling forms an important part of the process, and helps business owners understand where they are and visualise the future.
Selling – How will the sale of my business impact my tax position?
Prior to sale, it’s important to ensure all tax allowances are utilised, such as maximising pension contributions. Capital Gains Tax may also need to be paid. Once all taxes have been considered, we will then help clients transition from the world of Corporate Tax to Personal Tax.
A financial planner will ensure all the clients’ allowances are used to provide the most tax-efficient income in retirement. This often involves arranging life policies in trust as a useful way of providing liquidity in the short term. Longer term, there are a range of options including qualifying reinvestments and gifting, either outright or into trusts.
Post-sale – Can I take care of my loved ones and live the kind of retirement I would like?
After completion it’s time to structure investments to ensure they provide the right income to maintain a clients’ desired lifestyle. Ongoing advice is important in case of changes in circumstances, legislation, and investment markets.
It’s difficult to achieve these stages without collaborating with solicitors and other professionals. Working as a team supporting business clients, we can help ensure the best outcome is achieved.
Lorraine Denton is a Chartered Financial Planner at Punter Southall Wealth Lorraine.Denton@puntersouthallwealth.com
APPOINTMENTS OF THE WEEK
Joanna Lee-Mills has been appointed by Shakespeare Martineau as partner to head-up its social housing development team.
Previously with Anthony Collins Solicitors in Birmingham (where she was departmental manager for the built environment team) Lee-Mill’s expertise encompasses complex housing acquisitions and disposals. She has also gained a breadth of experience in larger scale projects, including stock rationalisation transactions, stock swaps and transfers.
“I am delighted to be joining Shakespeare Martineau at a time when the legal sector is having to adapt strategically and intuitively to the ever-changing landscapes perpetuated by the pandemic and its resulting challenges,” says Lee-Mills.
Louise Drew, partner and head of building communities at the firm adds, “We have been really successful over the past 18 months in terms of winning tenders in the sector, including retaining appointments for Walsall Housing Group and Platform Housing Group, as well as securing new appointments for Regenda Homes and Onward. All of these have ambitious development programmes consisting of large-scale acquisitions, as have many of our other clients. This has required a need to increase capacity within the team and we have highlighted a need for an excellent development lead to take us to the next level in terms of reputation as a market leader in social housing.”
Ruth Boardman, a Bird & Bird data protection expert, has been appointed as a member of the UK Government’s International Data Transfer Expert Council.
The Council consists of a group of world-leading experts who provide the Department for Digital, Culture, Media and Sport (DCMS) with independent insights and perspectives on the UK’s policy development and delivery on international data transfers. As well as industry experts and organisations, academics and representatives from groups such as the World Economic Forum and the Future of Privacy Forum are also part of the new council.
Expert Council members such as Boardman will provide independent and expert insights and perspectives, of a technical, tactical, and strategic nature, which will inform UK Government work. As part of the National Data Strategy, the UK will work globally to remove unnecessary barriers to cross-border data flows. The council has been created to ensure this continues now the UK has left the EU and to remove any further barrier to data flows in order to boost trade.