Edward Fennell’s Legal Diary – Edition 93

Friday 18 February 2022 

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

SHORT THOUGHT: TOO LATE TO CATCH THE POST?

The Public Inquiry which opened this week into the wrongful conviction of more than 700 Sub-Post Masters and Mistresses is expected to grind on for many weeks. Of course, it is right that all the miserable details should be exposed in full. But one of the key messages was expressed right at the beginning by  Baljit Sethi, the first witness to give evidence, when he said, “The people who did this should be brought to justice.”

The UK’s track record over a couple of centuries is that, in the end, the record is put straight where great wrongs have been done by the State or its agents. Where the record is not so good is bringing those responsible to justice. Too often blather, bluster, evasion and delay are deployed to allow time to cover their tracks. The real test of the value of this Inquiry is what happens when it is over.

The LegalDiarist

IN THIS WEEK’S EDITION

+ LEGAL DIARY OF THE WEEK

– Deal Activity Soaring

–NFTs Rocketing

– ‘Our D-I-V-O-R-C-E becomes final today’

– Responsible for What Exactly?

– London Rules (Still)

+ LEGAL COMMENT OF THE WEEK on Prince Andrew settlement, ‘Golden Visa’ and media privacy

+ E-VENTS on latest from Kids Law

LEGAL DIARY OF THE WEEK

Deal Activity Soaring

Latest figures from  Lex Mundi, the independent law firm network, suggest that, despite the pandemic, 2021 saw a record year for deal activity. Moreover, the signs are that we should expect further, unprecedented global growth in 2022.

For most parts of the world the evidence is that ‘due diligence’ was of paramount importance to doing deals in 2021 – 73% of practitioners in the Middle East and Africa, 62% of practitioners in Asia, 45% of practitioners in Latin American and the Caribbean and 42% of practitioners in Europe cited it as a key area of focus for legal advisers. By contrast 54% of respondents in North America highlighted transaction structure as the most pressing concern.

Also high on lawyers’ list of priorities was the regulatory environment with antitrust concerns standing out in particular for respondents in Asia – 46% of respondents agreed that it was at the forefront of minds.

“Although global deal flow continues to be influenced by the pandemic, a number of other factors appear to have eclipsed it amongst the concerns of practitioners – most notably, restrictions on foreign investment in an increasingly polarized world,” said Jenny Karlsson, Lex Mundi’s Head of North America within the Global Markets team. “Nevertheless, we have found that the mood is remarkably bullish, with optimism for further growth across most jurisdictions and markets in both the public and private sphere.”

NFTs Rocketing

They might still seem something of a novelty but the number of non-fungible tokens (NFTS) is ratcheting up dramatically with the United States Patent and Trademark Office (USPTO) having received 1,263 NFT-related trademarks in 2021. By contrast there were just three filings in 2020 – and in January of last year there were precisely none. Yet by the time we reached December there was an astonishing 407 in the month and in January of this year a record 450 had been clocked up (which translates to about 15 applications per day). The result is that since February last year the number of applications has grown by a hugely impressive 11,150%.

According to a Finbold, research report, “The [number of] trademark applications emerges when the NFT scene is attracting curiosity, excitement, scepticism, and enthusiasm over the potential prospects. The filings point to companies and individuals’ greater need to enter the blockchain space to protect their brands, banking on the sector’s potential.”

Although the trademarks highlight the need by brands to get the NFT legal side in order, says Finbold, there are several concerns including that regulatory compliance with NFT remains unclear and can potentially result in downside risks that might impact the utilization of the technology.

Read the full story with statistics here: https://finbold.com/u-s-nft-trademarks-applications-skyrocketed-400x-in-2021-with-15-registrations-daily-in-2022/ 

‘Our D-I-V-O-R-C-E becomes final today’

It was not so much Valentine’s Day but Kramer Day (inspired by the film Kramer vs Kramer) on Monday for the lawyers at Stowe Family Law.

As the firm pointed out, ‘There are 845,000 people in the UK trapped in abusive relationships, according to the latest ONS figures – a number that keeps rising every year. Meanwhile, two to three women are murdered each week by their partners or ex-partners in England and Wales’.

So not so much ‘love is in the’ air but, instead, ‘easier divorce is just over the horizon’ thanks to the Divorce, Dissolution and Separation Act 2020 which is coming into effect in April and which will remove the notion that one party is at fault or has committed any form of wrongdoing.

“The new system will greatly help those trapped in abusive or violent relationships. It is hard for someone in an abusive relationship to be faced with the prospect of having to blame their spouse for a relationship breaking down and risk further wrath,” said Julian Hawkhead, Senior Partner at  Stowe Family Law, “Sadly, there are many situations in which the wife is so in fear of the husband and so coercively controlled that she is extremely reluctant to blame him.”

The firm went on to comment that it hoped that on this week’s Valentine’s Day, ‘those suffering at the hands of abusive partners can feel some sense of comfort in knowing that upcoming changes to the UK’s divorce laws will empower them to step out of their marriages in a far less contentious manner’. Unfortunately, though, a nationwide survey had revealed that 80% were unaware that any changes were imminent. Time for an anti-Rom Com to drive home the message?

Responsible for What Exactly?

It is a sign of just how much attitudes have changed over the past couple of decades that it is now a common-place for firms to publish ‘responsible business’ reports.

Quite a number pass over the LegalDiarist’s desk but the latest is from Burges Salmon. Among a widerange of achievements across the full spectrum of ESG activity – including achieving the Gold standard with EcoVadis – the particularly impressive coup was securing the Platinum award from Investors in People.

“Congratulations to Burges Salmon for achieving Platinum in their recent ‘We Invest in People’ assessment,” said external assessor Jenny Goward. “Platinum level is not easy to achieve and demonstrates excellence and high performance. Platinum clients are our superstars, with their people management and the way they continuously improve in everything they do. Burges Salmon has a unique and strong organisational culture that is highly collaborative, purpose driven with strong organisational values that are at the heart of everything they do. It is a pleasure to work with them.”

Also notable was that during the year the firm had 13 legal apprentices and 7 business professional apprentices. “All apprentices are given time to pursue their academic and professional qualifications whilst earning a good wage,” said the report. “For university recruitment, we reach out beyond the Russell Group and support a variety of inclusion initiatives and bursaries.”

The firm has also introduced an additional week’s work experience for students primarily aged 14–18 from ethnic minority groups to give them a ‘rich experience’ across the legal and business professional side of the firm. So it sounds like action and not just talk.

London Rules (Still)

There was a small reminder this week of the vital role of the London courts in resolving legal disputes from some of the furthest corners of the world. It happened when when Brazilian mining giant Vale abandoned mid-trial its c.$2 billion fraud claim against Beny Steinmetz, a client of Anglo-Israeli law firm Asserson, shortly before one of Vale’s senior executives was due to enter the witness box to face cross-examination.

The case hinged on accusations of corruption and a failed joint venture in connection with the exploitation of mining rights in the Simandou mountain range in the Republic of Guinea, a world-class and high-grade iron-ore asset valued at approximately $5 billion at the date of the joint venture.

It all seemed a long way away from a London courtroom

– but where else would people go to sort out their disagreements?

LEGAL COMMENT OF THE WEEK

TOPIC: Prince Andrew’s settlement with Virginia Giuffre

COMMENT BY: Jon Oakley

“For some time it has been clear that this was only ever going to end badly for Prince Andrew unless he settled. It was the best of the bad options available to him.

Whatever the sum of money paid, from a reputational perspective it can only be money well spent so as to bring an end to what has undoubtedly been an extremely damaging time. Importantly, there appears to be no need for any admission of any wrongdoing, which would likely have been a stumbling block for him, beyond regretting his friendship with Jeffrey Epstein.”

 Jon Oakley is a partner at Simkins

COMMENT BY: Gideon Benaim

“Interestingly, we are not yet aware of any requirement for an apology, which would likely have been a stumbling point for the Duke, who maintains his innocence. I expect the Palace will be relieved that this debacle is seemingly over and now they can get on with the Platinum Jubilee without the prospect of a damaging trial looming large.”

Gideon Benaim is a partner at Simkins

TOPIC: The ending of the ‘Golden Visa’ scheme

COMMENT BY: Matt Ingham

“Our view is that a full closure of the visa category would be like using a sledgehammer to crack a nut. Perfectly sensible due diligence requirements have been in place since 2015 and these could potentially be enhanced further. 

 “If the visa category is closed it is not clear yet what transitional provisions will be put in place or how the Home Office will treat those already granted Tier 1 (Investor) visas. It is a cornerstone of public law that new rules should not be applied retrospectively to visas already granted and we are ready to seek judicial remedy if required.”

Matt Ingham is a Partner in the Citizenship & Immigration team at Payne Hicks Beach

COMMENT BY:  Kelly Whiter

 “If the concern is around the legitimacy of funds flowing into the UK via the route, then the answer must be to ensure the criteria is reviewed and tightened to close off any weaknesses in the system, and the rules must be strictly enforced. Following previous review and reform, there are mechanisms in place via the requirements set out in the Immigration Rules and the General Grounds for Refusal which give the Home Office the power to refuse applications if they are not satisfied with regard to the provenance or source of the funds being relied on for example. Of course, further work is still needed around the source of funds criteria, but legitimate applicants should not lose out due to the actions of a minority of rogue applicants.

“If the UK wants to continue attracting top-tier talent and investment, especially as the UK begins its post-COVID recovery, it cannot afford to lose this route. This is because the applicants are typically individuals with diverse international business interests who require the flexibility that the route provides. There is currently a lack of viable alternatives for these individuals, so the withdrawal of the Tier 1 Investor route, where many European countries are competing to attract such talent and investment, is likely to impact the UK’s attractiveness moving forward significantly.

Kelly Whiter is an Immigration Partner at Fladgate

TOPIC: The judgment of the Supreme Court in Bloomberg v ZXC that, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. 

COMMENT BY: Nick McAleenan

“When people, especially celebs, are quizzed by the Police over an incident, the media often get wind of it and report on the story. If the investigation is subsequently dropped, the cloud of suspicion can still hang over the person concerned and the disclosure of the Police’s investigation can cause them harm. Often, the person chooses not to complain to the media for running the story – letting sleeping dogs lie.

 “This Supreme Court decision will make it much harder for the media to justify publishing such a story (and improve the prospects of success of people wanting injunctions to prevent publication) – whilst obviously still allowing publication if the criminal proceedings actually progress.

“So, a significant ruling which is obviously bad for business as far as the media are concerned and restricts freedom of expression. However, it bolsters privacy rights and is in line with previous decisions.”

Nick McAleenan is a Partner in Media Law at JMW Solicitors

COMMENT BY: Hanna Basha

“It is an unpopular decision for the media as it will impact how they are able to report on the early stages of the majority of criminal investigations.  It is a welcome decision for those suspected of crimes who are subsequently not charged as they no longer have a reputational cloud hanging over their heads simply because of the investigation.  If suspects are not charged then, in the majority of cases, no-one will ever find out about the investigation.”


“Whilst ZXC brought his case in misuse of private information, his aim was to protect publication of information which would be defamatory and damage his reputation, a tactic we are seeing used more and more.  Earlier cases have established that the reputations of individuals and their right to be presumed innocent sit at their core and need to be protected.  It follows an increasing trend of cases where claimants bring privacy claims, rather than defamation claims, to protect their reputations.”

Hanna Basha is a Partner in the Privacy and Media team at Payne Hicks Beach

E-VENTS

We hope that you’ve survived this morning’s storm – while we write this the trees outside our office are waving wildly as the gusts sweep in from the South Downs – and have found today’s Legal Diary of interest. If so please relay on to colleagues.

We look forward to next week’s edition so please continue to send diary stories, news, insights and comments to:

fennell.edward@yahoo.com