Edward Fennell’s Legal Diary – Edition 96

March 11, 2022

Friday 11 March 2022

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

SHORT THOUGHT: So what have we learned so far?

Nice to have on the client roster? Image courtesy of the BBC

Two weeks ago in this Short Thought slot we commented ‘Overnight the management of large international law firms …. has become decisively more difficult. The invasion of Ukraine by Putin’s armed forces has meant that almost any kind of business with Russian entities could become highly problematic.”

We now have a better understanding of what that means in practice. But it has also precipitated a lot of ethical debate about which kind of clients are legitimate and ‘where lines should be drawn’.

If they are honest with themselves many firms would admit that they have willingly turned a blind eye – maybe for specious reasons – to their clients’ conduct until the harsh light of exposure has made their positions untenable (or at least highly embarrassing).

Some legal media have suggested that this has demonstrated the vital importance of good PR. This may be true.

Even more so, maybe, it highlights the need for ‘moral literacy’ as the basis for acting in good faith. As journalist and writer Ben Judah comments, the sanctions against Russian oligarchs will ‘wean London’s lawyers off their addiction to Russian money.’ So is this a chance to clean up the act? Or just a period of Lent to undertake some temporary abstinence?

The LegalDiarist

p.s related to this topic see our very interesting article by Caroline Kean of Wiggin THE OLIGARCH ENIGMA: CAN BAD GUYS HAVE A GOOD CASE ? (Probably Not)

IN THIS WEEK’S EDITION

+ LEGAL DIARY OF THE WEEK

– The Legal Profession Today: What does it look like?

– We’re Levelling Up for Law Students, says Sidley

– ‘Ding-Dong the Bells are going to Chime?’ Not necessarily.

– Property Litigation Association Appoints New President

CONTRIBUTED ARTICLE OF THE WEEK

THE OLIGARCH ENIGMA: CAN BAD GUYS HAVE A GOOD CASE? (Probably Not) By Caroline Kean, Wiggin

LEGAL QUOTE OF THE WEEK: EVERSHEDS SUTHERLAND on leaving Russia

LEGAL COMMENTARIES OF THE WEEK on the Covid Inquiry by Stephen Parkinson, (Kingsley Napley) and Ed Sheeran copyright claims by Howard Ricklow (Collyer Bristow) plus the GDPR case against TikTok by Caroline Harbord of Forsters

APPOINTMENTS OF THE WEEK at Roythornes and Irwin Mitchell

LEGAL DIARY OF THE WEEK

The Legal Profession Today: What does it look like?

Now and Then – Image of pioneering Mary Sykes courtesy of Law Gazette

A photograph is worth 1000 words, so they say. and a snapshot can give insights deeper than a statistical analysis. So maybe that’s why The Next 100 Years, the successor project to the First 100 Years, is launching a competition to find 100 powerful group photos to capture an image of the legal profession today, ‘As it continues to strive for greater equality’.

The hook is the that 2022 is the centenary of the first four women being admitted to the Law Society as solicitors – Carrie Morrison, Maud Crofts, Mary Pickup and Mary Sykes. So, echoing that quartet, the Next 100 Years is now looking for images featuring groups of four, or more, legal professionals (by which is meant presumably solicitors, barristers, legal executives and paralegals).

“The photos should be compelling portraits of women and men working in the law that celebrate the power of togetherness and what can be achieved when we work collectively.” say the organisers and the context could be anywhere and doing anything. So not just four people – one standing – in a faux conversation about a technical point on a lease.

The winning images will form the basis of a 2023 calendar and an exhibition entitled The way we are: portraits of the legal profession today.

The competition opened yesterday and closes on 10 May with entries judged by a panel that includes the Lord Chief Justice, Baroness Hale, Vicky Fox, CEO of the Supreme Court and I. Stephanie Boyce, president of the Law Society. Marcus Jamieson-Pond is the creative director of the project, and also a judge. Winners will be announced in the autumn.

Entries should be sent to: awards@spark21.org

Levelling Up for Law Students, says Sidley

Another law firm put its cheque book where is mouth is when Sidley Austin announced this week that it is launching an undergraduate bursary scheme for low socio-economic background students to help them get a foot on the law career ladder.

The scheme, will provide £3,500 per academic year to five students from September 2022. In addition the participants will be eligible for work experience placements at the firm, including automatic entry to Sidley’s summer vacation scheme in their second year of study.

Applicants will be assessed using the ‘Rare Contextual Recruitment System^’ to evaluate aptitude and potential,. This will be preferred over r final A-Level grades to ensure, the firm says, ‘an equitable review process’.

“We are confident that the opportunities offered to recipients alongside the financial aid will provide unparalleled insight into, and experience of, the work done at Sidley.,” said Jerry Gallagher the firm’s International HR & Diversity Director. “As well as the connections, confidence, and relationships they will build along the way, we hope to give students an intimate look at life within an international law firm and guidance on how they can shape their own legal career.”

Meanwhile Katy Webb, the firm’s Diversity & Corporate Responsibility Coordinator, commented, “The scheme recognizes the importance of financial as well non-financial support to develop the next generation of lawyers and has been designed with the hope of instilling confidence within recipients, whilst also arming them with the practical skills needed to pursue a successful career in the legal sector.”

‘Ding-Dong the Bells are going to Chime?’ Not necessarily.

“We thought we’d just invite ourselves” Image courtesy of Mar Hall

Getting married is one of the most intimate moments in someone’s life – and yet it is also one of the most public. That, maybe, is the point of it. It’s the private made public. And, of course, it also needs the state’s grubby hands over it in order to give it legal status with al that implies.

Trying to mesh all these different strands together is glycerins difficult in a society which is characterised by diversity whether that be of belief, ethnicity or culture. That’s why a new report from legal experts at the Universities of Warwick and Exeter under the auspices of the Nuffield Foundation suggest that the ‘current laws governing weddings are too outdated and restrictive and do not reflect the diversity of faith and beliefs in modern society.’ Consequently, the report goes on to say, each year many couples in England and Wales have a wedding ceremony which is meaningful to them but is not recognised by the law.

So what is the answer? Well the Law Commission has been looking at the issues for some time and the expectation is that its final report will appear in the Summer. It is in this context that the authors of this new report hope that its recommendations might be taken into account. Significantly nearly all of those who had a religious-only ceremony without a legal wedding were aware that it was not legally recognised. The majority of those who conducted these ceremonies took steps to ensure that couples were aware of the non-legally binding nature of the ceremony despite having no obligation to do so. As a result most of those who had such a ceremony also had a legal wedding. However, about a fifth had not yet done so, of whom most were Muslim couples who had entered into a nikah.

Ideally though, suggest the researchers, new wedding formats should be devised which can be given state recognition as well as reflect individual choice of style. “Our findings suggest that reform of weddings law is not only important but also achievable and is long overdue,” said the lead researcher, Dr Rajnaara Akhtar. “Our participants believed the Law Commission’s proposals for reform would make it easier, more inclusive, and cheaper for couples to have a legal wedding that was meaningful to them. In particular, removing the need for prescribed words was seen by participants as crucial in making weddings law more inclusive and enabling couples to consent to be married in a way that is in accordance with their beliefs.”

Presumably any wedding has to include a version of ‘I do’. But the question might be ‘I Do What?’

Property Litigation Association Appoints New President

Providing further reinforcements to the phalanx of women lawyers in top positions in the profession Judge Elizabeth Cooke has been appointed as the new President of the Property Litigation Association (PLA). Having already had a distinguished career as a Deputy High Court Judge and Principal Judge of the Land Registration Division of the First-tier Tribunal (Property Chamber) Judge Cooke has been in the Lands Chamber of the Upper Tribunal since 2019. From 2008 to 2015 she was a Law Commissioner for England and Wales with responsibility for property law reform and leading projects on easements, rights to light, telecommunications law, and conservation covenants.

“The Property Litigation Association plays a vital role in championing high standards in litigation practice and legal education, and in advocating effective law reform,” said Judge Cooke. “All are immensely important in the aftermath of the pandemic as the real property market recovers and professional relationships are re-examined and rebuilt. I am honoured to have the opportunity to support the PLA as its President and I look forward to working with its members.”

Judge Cooke succeeds Liz Peace CBE who steps down from the role after a five-year term.

CONTRIBUTED ARTICLE OF THE WEEK

THE OLIGARCH ENIGMA: CAN BAD GUYS HAVE A GOOD CASE? (Probably Not)

Caroline Kean – Doughty defender of the media

The role of lawyers acting on behalf of Russian oligarchs has come under close scrutiny – especially in cases of litigation. Here CAROLINE KEAN of WIGGIN, who has been involved recently in some of the most high profile cases on behalf of writers and journalists, reflects on the issues.

As Lord Pannick put it, everyone, including oligarchs, is entitled to legal representation. This is true not only of oligarchs but of all wealthy individuals, Russian or otherwise.

So why is there now such a furore about oligarchs and libel? It isn’t just the question of whether corrupt money is being used to pay notoriously high legal fees. It’s because more than in any other type of court action, claims in libel, privacy and increasingly data protection, which all concern abstract concepts, have a much wider effect than just on the two parties involved.

I see too many claims where the claimant’s solicitor – a specialist in a specialist field – must have advised their client that their claim is fundamentally flawed: they would be negligent if they didn’t and these lawyers are not fools. But the client disregards that advice and says ‘Go ahead’ anyway. The lawyer agrees. These include cases where it is inconceivable that the claimant could or ever would suffer serious harm to their reputation: the threshold for bringing a claim. They do it because it will have a chilling effect on other reporting.

Being entitled to legal representation doesn’t mean you have a right to use your financial muscle to bring bad claims for ulterior motives. Lawyers should have more pride than to be used as part of a client’s PR machine. Is it immoral to act for a claimant in those circumstances? Yes. It’s collusion in abuse of our laws and our courts. Just say no.

LEGAL QUOTE OF THE WEEK (for the record and representing the many law firms now leaving Russia).

EVERSHEDS SUTHERLAND

“Further to the firm’s statement of 4 March 2022, Eversheds Sutherland has decided that it will no longer have a presence in Russia.

This decision has not been made lightly, and is not a reflection on our valued colleagues in those offices, but we will not continue to operate in Russia given its government’s invasion of Ukraine. Our priority now is to support our 50 colleagues in Russia and to work together to ensure an orderly transition of the business in compliance with our professional obligations.

As previously stated, our work has been centred on advising multinational clients on their affairs relating to or in Russia. We can confirm that we are not acting for the Russian government, Russian state-controlled entities and oligarchs, nor are we accepting any such mandates.”

[LegalDiarist Personal Note: The last mass exit of law firms from Moscow was in 1998 when the country defaulted on its debts and the rouble collapsed. “Clifford Chance was the major exception and was determined to remain and keep its office open. Keith Clark, the Senior Partner went to Moscow to settle nerves and he invited a representative from The Times (me) to accompany him. It was an extraordinary few days but there is a crooked line from then to now,” The LegalDiarist]

LEGAL COMMENTARIES OF THE WEEK

TOPIC: The draft terms of reference published by Baroness Hallett for the proposed Covid Inquiry

COMMENT BY: Stephen Parkinson, Senior Partner at law firm Kingsley Napley LLP

“The main purpose of this Inquiry must be to help us grapple with future crises of a similar nature. The objectives that Baroness Hallett has unveiled today require the Inquiry to examine lessons to be learned and I hope that that can be strengthened into a requirement to provide firm recommendations. While I welcome the fact that the inquiry is being asked to provide a factual narrative of what occurred, I hope that it will not become too distracted by that task. We don’t need a detailed history of what we already know – we want to know what can be done better in future. That includes how to manage better the impact on businesses and the impact on people’s personal lives from a crisis of this nature.

”“The danger of Public Inquiries is that they can sometimes be regarded as a talking shop with no clear or useful outcome. The Terms of Reference agreed at the outset are crucial to avoid that. We simply don’t have time for this Inquiry to take years and years, which is what would happen if it became an exercise in apportioning blame, and so I welcome the fact that this does not appear to be what is intended. Given this will be the most important Inquiry of our generation, it is imperative it serves a useful function and I am confident Baroness Hallett is taking the right approach.”

TOPIC: Ed Sheeran’s defence of his copyright claim regarding ‘Shape of You’

COMMENT BY: Howard Ricklow, Partner and media and entertainment lawyer, Collyer Bristow

“The allegations in the High Court suggest that while Sheeran is ready to acknowledge that he has ‘borrowed’ from other writers’ songs, he only does so when they are known writers and not where he considers them too small to worry about. He has apparently already given credits to the writers of No Scrubs in respect of the same song.

“It is important to stress that copyright infringement cases are determined not only on the basis that the two songs may be similar but whether the defendant to the claim has actually copied the original song.

“If the defendant has come up with the song quite independently of the claimant’s song, then there will be no copying. With rapid instant communication where singer songwriters can hear multitudinous tracks from all over it would be very difficult for Sheeran to say they had not heard the song that they are alleged to have infringed, which Sheeran did claim in an earlier infringement case involving the song Amazing.

“In the absence of evidence, certainly in the UK – the position is different in the US where there is a jury in such cases – the judge will be left to conclude on the balance of probability, whether Sheeran copied the song in question or composed his song independently.”

TOPIC: The GDPR case against TikTok

COMMENT BY: Caroline Harbord, Senior Associate, Forsters

“The representative claimant in the opt-out data protection group claim against TikTok lives to fight another day, as the High Court (arguably unexpectedly) grants permission for the claim form to be served out of the jurisdiction on the foreign defendants.

The judgment is significant because it represents a departure, albeit a very cautious one, from the Supreme Court’s controversial decision in Lloyd v Google. In Lloyd v Google, the Supreme Court held that a similar (but not identical) opt-out representative group claim for breach of data protection legislation did not constitute a serious issue to be tried, such that the claim fell at the first hurdle.

While the judge in the TikTok claim was non-specific about the factors that empowered him to distinguish the TikTok claim from Lloyd v Google, it is clear that he gave weight to the fact that the claim against TikTok relates to breaches of GDPR, whereas in Lloyd v Google the claim related to the older and now defunct DPA 1998 which made no express provision for recourse arising from non-material damage.

The judge is also likely to have given weight to the claimant’s submission that there is a higher degree of uniformity between the TikTok class members and their associated damages, given that all class members actively signed up to TikTok. By contrast, the claimant class in Lloyd v Google all had their data surreptitiously stolen and commercialised by Google without their knowledge.

While the judgment undoubtedly provides a glimmer of hope for those who feared that all opt-out representative data protection group claims were dead in the water following Lloyd v Google, it is very clear that the representative claimant in the TikTok claim will have a tough battle ahead. As the judge acknowledged, the service out application (which was heard ex-parte such that the Defendants were not afforded the opportunity to state their position) was in many ways a pre-cursor to the forthcoming summary judgment application already issued by the English Defendant. All eyes will now no doubt be on this summary judgment hearing, where the High Court will give much more detailed scrutiny to the submissions highlighted above, including the extent to which it is bound by the Supreme Court’s decision in Lloyd v Google. This will no doubt have implications for all live and future opt-out representative data protection group claims, including their ability to obtain litigation funding.”

APPOINTMENTS OF THE WEEK

Candy Stockton is joining the Will, Trust and Estate Disputes Team at Irwin Mitchell – the largest specialist national team in the UK – in the Gatwick office as a Partner. She was previously the head of contentious trust and probate in the dispute resolution department at TMW Solicitors.

Specialising in dispute resolution for both private and commercial clients, Stockton has had wide experience, including handling several high profile matters in the High Court and has completed the ACTAPS (Association of Contentious Trust and Probate Specialists) qualification.

“As our first will dispute Partner in Gatwick, Candy will spearhead the growth of the department and our work in the wider London and southern offices,” said Paula Myers, Director of Private Client Legal Services at the firm. “Her broad experience of everything from High Court cases to mediation will be invaluable in our efforts to go the extra mile for our clients.”

Abdul Zaheed is joining the Birmingham office of Roythornes as a partner having had more than 18 years of experience as a qualified real estate solicitor.

“I was impressed with the firm’s substantial growth and Roythornes’ commitment to its real estate practice and Birmingham,” said Zaheed.”I have always been passionate about providing exceptional service to clients and adding real value to their goals so I’m looking forward to establishing and growing this at Roythornes.”

Roythornes operates across the Midlands and has offices in Alconbury, Birmingham, Nottingham, Peterborough, and Spalding. Its Birmingham office will relocate from its current office to 1 Newhall Street in Spring 2022.

“This expansion furthers our commitment to Birmingham as a city, and to its dynamic real estate market,” said Vember Mortlock, the firm’s managing director, “This is an important area of growth for us and we’re looking forward to continuing our work across the West Midlands, serving both long-standing and new clients.”

E- VENTS

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