Edward Fennell’s Legal Diary – Edition 46

Friday 19 February 2021 Edition 46

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

SHORT THOUGHT FOR THE WEEK

The UAE – A Great Place to Escape

Those who watched the Panorama documentary this week about Princess Latifa and her circumstances in Dubai will draw their own conclusions about whether the UAE is a wholesome place with which to do business. Radha Stirling, CEO of Detained in Dubai has said that “UAE must release Princess Latifa immediately and unconditionally.”

But even more pressing for the rest of us is whether the UAE generally is a safe place for foreigners. Of course, many law firms are no doubt doing profitable business there. Indeed, one of the Appointments we report on today is for a firm recruiting a new partner for its insurance practice in Dubai. Yet, asRadha Stirling, regularly points out, working in UAE is fraught with difficulties with RAK particularly problematic. Along with others, Stirling has issued warnings to business and investment groups, financial advisors and lawyers about the risks involved. “The attitude towards the foreign investor is disturbing,” says Stirling. “They are seen as prey, to be used and discarded then pursued via Interpol or through foreign courts to steal money from them.”  So, unless you happen to be the Queen of England, maybe best to steer clear.

The LegalDiarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

This week’s theme is lawyers backing their communities

– Having a Domestic

– Young, Gifted and…

– Scots Cross

– Irwin Mitchell Has a Brainwave

+ LEGAL TECHNOLOGY OF THE WEEK

Rupert Butler of Leverets

+ BIG WIN OF THE WEEK

Leigh Day against Uber

+ LEGAL ANALYSIS OF THE WEEK

From ‘I Do’ to ‘I Won’t’: Covid and Divorce Settlements

+ LEGAL DEVELOPMENT OF THE WEEK

Facebook’s Face-off

+ APPOINTMENTS OF THE WEEK

+ WEBINARS AND BLOGS FOR THE WEEK

THE LEGAL DIARY OF THE WEEK

Having a Domestic

Last week saw Valentine’s Day and its new sibling ‘V Day’ which puts the spotlight on domestic violence.

In response Travers Smith LLP has announced this week that it is introducing a Domestic Abuse Policy to show the firm’s commitment to support all those experiencing domestic abuse, particularly during this current period of remote working. “[The move] is designed to raise the awareness of this crucial issue, so that those who are in a position to support others can draw on the Policy and are trained to do so,” it says. 

Travers Smith is already known for representing survivors of abuse in the wider community but, saysDirector for Pro Bono, Sam Cottman, “We also think it right that we look after our own people in the event that they experience this kind of abuse. There is no part of society which is left untouched by this issue and so employers have an important opportunity to look after their employees here.”

As part of the new approach the firm is conducting a series of online training sessions, delivered by a domestic abuse charity SafeLives, which is providing specialised training to line managers and the firm’s Mental Health First Aiders. Also available is an anonymous communication platform WorkinConfidence, paid leave arrangements, and a Domestic Abuse Response Toolkit to signpost external services that specialise in domestic abuse.

According to recent research it is reckoned that one in four women and one in six men experience domestic abuse in their lifetimes. Meanwhile, as has been widely reported, domestic violence has rocketed during the pressures of lockdown with charities dealing with male victims of domestic abuse reporting pleas for help increasing by up to 60%.

Young, Gifted and…..

If the legal workforce is going to become more diverse then it probably needs to be reshaped by lots of different programmes. Reed Smith has now brought another one into play by partnering with the Black Young Professionals (BYP) network in order to increase the number of Black candidates applying to work at the firm. Reed Smith reckons that it is the first law firm to do so and ally itself with a number of its clients who are already members of BYP.

BYP was set up four years ago and now has a network of 50,000 members and a focus on working with existing black networks and businesses. Joining BYP is seen by the firm as part of its Racial Equity Action Plan (REAP). “[This is] all designed to deconstruct barriers to equity in the legal industry and in our communities,” says the firm.

According to Tamara Box, Reed Smith’s EME managing partner, “The Black Young Professionals network is a fantastic organization and we look forward to working with them to increase the number of Black candidates applying to work at the firm.”

The partnership follows a decision earlier this month to join the Confederation of British Industry (CBI) and 75 British companies in signing up to the Change the Race Ratio campaign.

Scots Cross

Seven hundred years ago the church would gather the faithful together in large numbers to beseech the Almighty to take away the pestilence. Today, however, the last thing the authorities in Scotland want is people assembling in prayer. But the Scottish churches are not taking this kneeling down. Just this week a Catholic canon, Tom White (above), has issued a pre-action letter to the Scottish Government demanding it ends the blanket shutdown on places of worship. As a spokesperson for the canon commented, “Under the present ban Scottish worshippers currently face criminal penalties for going to church while their English neighbours who can attend with safety measures in place.”

It would probably take a wee panel of canon law experts, ecclesiastical historians and expert commentators on the internal functioning of the SNP to work out what’s going on here. Where would John Knox stand on this, one wonders? Blame it on Scotland’s ‘monstrous regiment of women’?

The case is being supported by ADF International, the legal advocacy organisation which acts to support religious freedom. “The Scottish Government’s medical advisors have conceded there is no robust medical evidence for the closure of churches, which remain open in most European countries,” said Ryan Christopher, director of ADF International in the UK. “We must find solutions which protect both the vulnerable and those who understand their communal worship to be as essential as food and water.”

A response must be made by the Scottish Government before Tuesday February 23 but meanwhile, down in Westminster, the UK Government’s Chief Medical Advisor Professor Chris Whitty has said, “All the faith communities in the UK have been extraordinarily responsible in the way they’ve tried to address this”.

Of course that does not mean much north of the border. Although if you’ve ever been in Sauchiehall Street in Glasgow on a Saturday night (as the LegalDiarist has) you might understand why.

Irwin Mitchell Has a Brainwave

For too long, maybe, the march towards equality has majored on ethnicity and gender. Disability has been very much the ‘left-behind’ characteristic. But attitudes are now starting to change whether that be in terms of space travel or securing legal rights.

One encouraging example comes from Irwin Mitchell which has joined forces with Brainwave to become the charity’s first legal partner. Auriana Griffiths, partner and specialist medical negligence lawyer at Irwin Mitchell, said: “Brainwave is a fantastic organisation which provides valuable help to families of children affected by disability. It’s been a pleasure to support the charity and we are delighted to be named as its first legal partner. “

Brainwave’s Chief Executive Keith Sinclair responded “We have been delivering essential therapies to children with disabilities for over 38 years, and to have Irwin Mitchell on board as our official legal partner is fantastic for the families we work with by providing them with professional legal advice.

Meanwhile, also this week, Irwin Mitchell has collaborated with the charity Family Fund, which provides grants for families on low incomes raising disabled or seriously ill children. Yesterday Family Fund hosted a webinar which included workshops from Irwin Mitchell on EHCPs, benefits and financial support together with tips for families with debt issues. More than 370 people registered for the live 90-minute virtual event.

“The charity does vital work around the country, providing grants for essential items and helping families improve their quality of life while easing the daily pressures they face when looking after disabled or seriously ill children,” said Alan Ball, specialist serious injury lawyer at Irwin Mitchell.

For more information on Brainwave, visit https://www.brainwave.org.uk/

For more on Family Fund go to https://www.familyfund.org.uk/

LEGAL TECHNOLOGY OF THE WEEK

The KIDS COMPANY case featuring The Official Receiver v. Batmanghelidjh and others was a resounding success last Friday for the Defence. But, explains barrister RUPERT BUTLER of hybrid firm LEVERETS, it relied upon technology being used ‘on an industrial scale’.

Leading a Defence team in a ten week trial in the Chancery Division is hard work enough, but when hostile media interest is factored in as well as a global pandemic, then the challenges become unprecedented.

It is to everyone’s credit that these directors’ disqualification proceedings went ahead in a socially distanced court room in the Rolls Building from October to December. And where credit is due that includes the Court staff, Mrs. Justice Falk and, the teams, clients and witnesses.

With rising infections that could knock anyone in the case into self-isolation for up to 2 weeks, or serious illness, the entire trial was managed so that it could go into remote session at a moment’s notice and then revert back.

So technology was used on an industrial scale: all of the papers (tens of thousands of pages) were reproduced digitally; live transcription; relay to an adjacent court room for media and public; relay to clients, legal teams and witnesses; display of documents on screens at the command of a remote presenter; evidence receivable from remote locations. All of this was guided by a team audio/visual technicians in court and remotely.

In the end we only lost one person on two occasions to self-isolation – the Judge! But she managed to carry on from her home, missing only 6 sitting days in court.

This is a gold standard and hugely expensive, but if it could become the norm then this would open up the possibility for many more cases to be heard remotely, cutting time and expense to the parties and shifting a serious backlog of business.

 For more go to https://leveretsgroup.co.uk/

BIG WIN OF THE WEEK from Leigh Day against Uber

It has been a good week for Leigh Day concluding this morning with the news that they have been successful on behalf of the GMB Union in arguing that Uber drivers are not self-employed, but are workers entitled to workers’ rights including holiday pay, a guaranteed minimum wage and an entitlement to breaks.  

It’s taken four years but Leigh Day/GMB has won every round. As they point out today’s ruling is the fourth time Uber has lost in court over its treatment of drivers. Commenting afterwards Dr Kelle Howson, researcher, Fairwork Foundation, Oxford Internet Institute said, “Today’s decision is a huge victory for Uber drivers in the UK, with potential implications for hundreds of thousands of other gig workers across multiple sectors.  The Supreme Court has affirmed what Uber’s workers experience daily – that the platform exercises defining control over their livelihoods and working conditions. By misclassifying their drivers as self-employed for years, Uber has deprived them of the basic rights and protections that should characterise all work.While many workers in transport and delivery, care and domestic work, and other industries remain barred from employment protections, and face insecurity and precariousness, this decision is testament to what is possible when workers collectivise and demand better. It is yet another sign that the tide is turning against unfair practices in the gig economy”.   

After winning the legal battle, GMB will now consult with Uber driver members over their forthcoming compensation claim at the Employment Appeal Tribunal. The firm reckons that   tens of thousands of Uber drivers could be entitled to an average of £12,000 each in compensation. Expect the cost of taxi rides to go up.

LEGAL ANALYSIS OF THE WEEK From ‘I Do’ to ‘I Won’t’

Whether its shop rentals or holiday bookings, Covid seems to be changing everything. But can it impact on divorce settlements too? Richard Kershaw, partner in the Family department at Hunters Law LLP thinks probably not.

Since the gravity of the Covid-19 pandemic became clear, divorce lawyers have debated whether its financial impact could suffice to overturn a divorce settlement. The recent decision in FRB v DCA (No. 3) [2020] EWHC 3696 (Fam), in which a husband sought to reopen a £64m award made in March 2020, now offers a judicial perspective.

The family court places great weight on finality in divorce settlements, meaning subsequent events can only justify re-opening a case in exceptional circumstances. In general, there will need to have been an unforeseen and unforeseeable event which invalidates the basis of the order.

Wherethe settlement includes a lump sum payable in instalments, as in FRB v DCA, the court’s power is slightly broader. However, after the 2008 financial crash, the Court of Appeal made clear in Myerson v Myerson [2009] EWCA Civ 282 that “the natural processes of price fluctuation…however dramatic” will not justify reopening such a settlement.

In FRB v DCA, the final order of 30 March 2020 provided for the husband to pay the wife £64m in property and cash. Just before the first cash instalment became due on 30 September 2020, he applied to re-open the settlement due to Covid-19’s financial impact. His application failed, largely because he had not evidenced how the pandemic had impacted his financial position.

However, Mr Justice Cohen also pointed to the need to take a long-term view. He noted that the major stock market indices had rebounded to above their pre-Covid-19 levels and added “Most commentators believe that at some stage within the next couple of years the world economy will be back to where it was”.

His words suggest that, as widely anticipated, it will be difficult to re-open divorce settlements due to Covid-19’s financial impact. Yet there may be cases where it seems clear that a party’s financial situation will not rebound – for example, if their business has collapsed due to the pandemic – in which case they may have a stronger argument. For others, adjusting the timing of payments, and varying the level of ongoing maintenance, may provide some relief.

Richard Kershaw advises on a wide range of financial and child related disputes arising on the breakdown of a relationship. For more go to Hunters Law LLP

LEGAL DEVELOPMENT OF THE WEEK

– FACEBOOK’S FACE-OFF

It’s been a bad week for Facebook. And it could get worse as it gets hit with a class action over its failure to protect personal data reports James Castro-Edwards of ProDPO at Wedlake Bell

A group litigation claim (or ‘class action’) has been brought against a Facebook, for its alleged failure to protect personal data. The claim has been filed in the High Court in London by journalist and writer Peter Jukes, on behalf of himself and around one million users in England and Wales.

Facebook’s alleged failings came to light in 2018, as part of the Cambridge Analytica privacy scandal, where users’ data was used for advertising during elections. Between November 2013 and May 2015, Facebook reportedly permitted a third-party app ‘This Is Your Digital Life’ to collect users’ and their contacts’ personal information, without their knowledge or consent. Users’ data was reportedly collected by the personality quiz app and shared with Cambridge Analytica. The data allegedly included users’ name, gender, location, tagged photographs and pages liked. According to the Information Commissioner’s Office (ICO), which investigated the allegations against Cambridge Analytica, the app was used by around 300,000 Facebook users around the world and collected the personal data of around 87 million users. Around one million UK users’ data was reportedly affected.

The claimants seek damages from Facebook for its alleged failure to protect their personal data, in breach of the Data Protection Act 1998 (which was the law in force at the time the misuse reportedly took place). Mr Jukes’ representative action will seek damages for the affected UK users, who are able to participate in the legal proceedings without having to pay any legal fees. Importantly, the claim does not rest on whether users data was transferred to Cambridge Analytica, but instead, that Facebook is alleged to have allowed third parties to access users’ personal data without their knowledge or consent.

This is not the first instance of a group litigation claim being brought in relation to an alleged breach of data protection rules. However, this is an emerging area of the law. The consequences of the litigation are potentially far-reaching. If each individual were to be awarded only a relatively small sum as compensation, Facebook could potentially face substantial damages, given that around one million claimants have reportedly joined the proceedings. If Mr Jukes’ action is successful, it could potentially set a precedent for other consumer claims lawyers to follow, on a ‘no-win, no-fee’ basis. Group litigation claims for misuse of personal data could become the next Payment Protection Insurance (PPI) or whiplash-claim ‘bandwagon’. Businesses that hold large volumes of personal data should watch this space.

James Castro-Edwards, a Data Protection lawyer and Head of ProDPO (an outsourced Data Protection service of law firm, Wedlake Bell)

APPOINTMENTS OF THE WEEK

MARIA FRANGESKIDES (above) has been recruited by ADDLESHAW GODDARD as a partner in its commercial disputes team based in London. Maria joins from Orrick, where she advised multinational companies, large corporates and high net worth individuals in Commercial Court litigation and international arbitration, spanning a variety of sectors and with a particular expertise in civil fraud and shareholder and joint venture disputes. Maria has over 30 years’ experience in commercial disputes, not only advising clients in civil commercial disputes and fraud matters, but also building a strong practice in international arbitration, including international trade. Michael Barnett, Litigation Managing Partner, said: “Continuing to build out our high value commercial disputes platform generally, and Civil Fraud, specifically, is a key driver of our investment strategy in a buoyant international fraud disputes market.”

BRIAN BOAHENE has been appointed as Partner in the DWF insurance practice in Dubai. Boahene joins from Ince where he was a partner in the firm’s insurance, transportation & trade practices. At DWF, he will establish the insurance practice in the Dubai office and lead development of premium complex claims work in the region. He has a wide-ranging understanding of commercial litigation both in the English High Court and the local courts in the Middle East and has regularly advised on international arbitration and alternative dispute resolution, particularly mediation. Commenting on the appointment, James Fox, Managing Partner, DWF in Dubai, said, “I am delighted that Brian is joining us to help establish our insurance presence in the UAE. His experience and reputation in the market aligns with our existing team and our business’ deep pedigree in the insurance market.”

WEBINARS AND BLOGS FOR THE WEEK

BLOGS FROM FORSTERS In light of the current big issues The new government plan to end unsafe cladding: too little, too late? by Construction Partner, Andrew Parker an COVID-19 vaccines: employment law considerations by Employment Senior Associate, Joe Beeston are worth a view.