Edward Fennell’s Legal Diary – Edition 50

March 19, 2021

First Anniversary edition

Friday 19 March 2021: Edition 50

Diary news, commentary, insights, appointments and e-vents from the legal world

SHORT THOUGHT FOR THE WEEK

WHAT’S AROUND THE BEND IN THE RIVER?

The week ahead marks the first anniversary of this LEGAL DIARY. Its launch came about almost by accident as Covid hit home, the lockdown crashed in and almost everything that the LegalDiarist commented on for a national newspaper seemed to evaporate. But never waste a good crisis so there suddenly opened up a fresh opportunity to write about this new legal world of working from home and lawyers ‘making it up as they went along’.

To represent this new reality the masthead image of the underside of a bridge in Docklands was chosen primarily because it bore no relationship whatsoever to the traditional brand images of the law – wigs, courts, chambers and the rest. But it did carry an important message that while the world conducts its business on the bridge above, supporting that bridge and making it secure are the four pillars of a rules-based society – the law, the courts, the lawyers and Parliament.

There is plenty of other legal media out there. There is no point in duplicating what they do (mostly) very well. But there are also other stories, viewpoints and people which should not be overlooked. That’s why we’re looking forward to going into our second year. We appreciate that you are reading us. We look forward to seeing what’s beyond the bend in the river.

The LegalDiarist

In this week’s ‘first anniversary’ edition

+ LEGAL DIARY OF THE WEEK

– Wanna hear a story?

– Tik Tok Legal Tech

– Five Stars for B&B

– Mute Point

– The Never Ending Story at the Post Office

+ CONTRIBUTED ARTICLES OF THE WEEK

– ACTION AGAINST ILLEGAL ENCAMPMENTS by Wayne Beglan

– UBER RULING: THIS IS JUST THE START, says Kate Hindmarch

– VACCINE PASSPORTS NEED THE STAMP OF RELIABILITY, says Eduardo Ustaran

+ APPOINTMENTS OF THE WEEK at Fox Williams, Browne Jacobson, JMW Solicitors and Cornerston Chambers

+ E-VENTS and More OF THE WEEK

THE LEGAL DIARY OF THE WEEK

Wanna hear a story?

The big news from New York last night was of the merger between financial service law firms Crowell & Moring and Kibbe & Orbe. Of course this had implications on this side of the pond as well since there are London lawyers involved. As the official announcement put it, “As part of the transaction, 24 lawyers from the storied financial law firm would become part of Crowell & Moring’s New York, London, and Washington, D.C. offices, including Jennifer Grady, managing partner and chair of the firm’s executive committee, three founding partners, Jonathan Kibbe, William Orbe, and Michael D. Mann, and the managing partner of the London office, Andrew M. Martin.”

As so often (and you might have noticed) the word ‘storied’ was deployed to add weight to the announcement. But as a light quibble, one often wonders what it is supposed to mean. Is the firm involved multi-storied or single storied? Are the stories ‘good’ or bad’, entertaining or boring, ancient or new? Or are they just the ‘same old’ stories? Yes, ‘storied’ is a word which asks more questions then it answers. From a law firm one would value a little more precision.

Tik Tok Legal Tech

Here comes another example of the way law firms are impacting on the business world in a way which would have been unimaginable just a generation ago.

Earlier this week DLA Piper launched an AI-enabled service designed to identify cartel risks within corporations. A combination of the law firm’s legal know-how with what is described as ‘cutting-edge AI technology’ from software whizz Reveal has created Aiscension which can ‘enhance a business’s compliance initiatives’ by detecting and preventing cartels.

The driver for the new product comes from companies’ fears of unintentionally infringing anti-cartel legislation – the consequences of which can be very serious.

“The efficiency and reduction in cost that Aiscension brings to the market opens up a whole new way for companies to view and mitigate cartel risk,” says Ilan Sherr, Legal Director at DLA Piper and Executive Director of Aiscension. “Aiscension provides our clients with the ability to identify, at an early stage, whether they are at risk of being involved in potentially illegal activity. This can enable them to take appropriate action at the earliest opportunity, and even prevent any damage from being done.”

DLA Piper will be offering the Aiscension service as part of its enhanced legal offering named Law&. “This solution confirms that a combination of AI technology and human legal expertise can solve complex issues such as cartel activity detection,” added Simon Levine, the law firm’s Global Co-CEO.

Five Stars for B&B

Cutting edge of LegalTech Picture courtesy of VisitBritain

Five Stars for B&B

Speaking of link-ups between lawyers and technology it is worth taking a look at Whitecap consultancy’s impressive report on the role of LegalTech in the Bristol & Bath (B&B) region of the West of England.

The timing is perfect as we start to come out of lockdown. The paradox is that, while technology means that you can WFA, clustering seems even more important than ever. And businesses of all types – not least law firms considering where to develop new offices – are finding the B&B area at the head of the queue. “If there is any region outside London where LegalTech should spring up and prosper it is in Bristol & Bath, with the ecosystem we have,” says Ed Boal, Director & Head of Legal Ops, Stephenson Law.

And that ecosystem is what exactly? Well, apparently there is already a growing cluster of more than 30 LegalTechs, including tech companies working in the legal sector and LegalTech arms, operating in the region. And with the area also providing a base for 26 of the top 100 law firms in the UK it might well benefit also from increased home working especially from London-based firms.

So no surprise then that within the past couple of weeks the Kalifa Review named B&B as one of the top 10 FinTech clusters in the UK. “A mindset shift is required,” said Dan Wright, Partner & Director of OC Solutions, Osborne Clarke. “We need to communicate that this is about enabling people, our lawyers and our clients – about making our lives a bit easier.”

Mute Point

Remote hearings – going well are they? As we review Year 01 AC (after Covid) it is safe to say that pleading remotely has been a bag of laughs for the watching public but has tested the patience of the more traditionally-minded. Or as Sophie Kemp, a solicitor in the debt recovery team at Clarke Willmott puts it (rather kindly, we think) it has led to some “innocent mishaps” as well as “over-confidence” among participants.

Such as? “We have heard of cases where an advocate was putting questions to a witness, and she could hear what she thought was a car indicator. She asked the witness if they were driving whilst trying to give evidence. The witness confirmed they were driving to a supermarket and thought it was reasonable to be able to drive and give evidence at the same time.”

Meanwhile we’ve heard of a case proceeding by way of video hearing where a party was addressing a Judge as ‘my flower’ and ‘petal’ and continued to do so despite being warned.

“The challenges of remote hearings are not confined to the witnesses. In the middle of a video hearing, an advocate’s child burst into the room singing at the top of their voice. This is a situation that most will be sympathetic of nowadays and all parties, including the judge, luckily found it amusing and were swiftly able to continue the hearing once the rendition was over.

“But it is not all light-hearted and innocent mishaps. In one case a party took offence at being cross-examined and became rude and abusive to the opposing advocate and the judge, continuing to shout at them. The judge raised this as an issue and even took a five-minute recess so that the party’s advocate could telephone him to ask him to calm down.”

A new etiquette is now needed urgently for remote justice to retain its dignity.”It is clear that all parties, including judges, are still getting used to remote hearings and the reality of how they proceed,” says Kemp. “It will be interesting to see if this develops into a common trend or whether there may be further, more rigid and enforceable rules brought in for attending remote hearings.”

The Never Ending Story of an Undelivered ‘Sorry’ card from the Post Office

Two decades have passed yet the war of persecution by the Post Office against its Sub-Postmasters has still not ended. Here’s the position:

“Next week, the Court of Appeal will hear 41 appeals of sub-postmasters who were convicted of theft, fraud or false accounting where data from the defective Horizon system was at the heart of the prosecution case. In nearly all the cases, the Post Office is not contesting the appeals because it accepts that evidence in the original private prosecution was incomplete and that the Horizon system’s faults were not disclosed to judges and juries. But the Post Office has denied, in most cases, that it was wrong to have prosecuted in the first place, which means it is far from clear today that the Post Office fully exonerates most of the appellants from wrongdoing.”

Read more of this brilliant account of how this dreadful saga has driven innocent people to suicide and penury in Tony Collins’ authoritative article ‘The Post Office goes into the 21st year of IT-related disputes with a fresh dispute’ to be found at https://ukcampaign4change.com/2021/03/18/the-post-office-goes-into-the-21st-year-of-it-related-disputes-with-a-fresh-dispute/amp/

It will leave a sour taste on the tongue the next time you lick a stamp.

CONTRIBUTED ARTICLES OF THE WEEK

ACTION AGAINST ILLEGAL ENCAMPMENTS

The proposed new laws do not go far enough to protect the countryside suggests Wayne Beglan

On 9 March 2021 the Secretary of State introduced the Police, Crime, Sentencing and Courts Bill 2021. Part 4, containing clauses 61-63, deals with unauthorised encampments, criminalising them in certain circumstances. By inserting new sections into CJPOA 1994 the clauses will expand the current powers available to Police (see s.61) and Local Planning Authorities to address unauthorised encampments occurring on private land without consent.

Caselaw has demonstrated that the current powers can take considerable time and expense to implement. A recent example is provided by Anderson v. Basildon [2021] EWCA Civ 363 which illustrates the difficulties that can arise even where a local authority acts with utmost expedition once works have commenced. There are examples of similar delays even involving private land, where the local authority may be reluctant to act requiring the landowner to incur significant legal costs.

However, as drafted, it is not clear that the Bill will in practice provide the extended protection for landowners and occupiers of land which the Bill seeks to provide. First, the offence only comes into being after a request to leave has been made and failure to comply “as soon as reasonably practicable”. Reasonably practicable may embrace a number of issues including alternative sites, interests of the children, health and age. Second, the offence only applies to those residing or intending to reside on the land. What amounts to residence, rather than say occupation, presence or control, is yet to be decided in this context. Third, s.60C(4) as proposed sets out four conditions at least one of which must be met. Residence on land without “significant” damage or disruption, or “significant” distress caused by offensive conduct, will not trigger the offence. Peaceable occupation will not be an offence. Fourth, it is a statutory defence to demonstrate a “reasonable excuse” for a failure to leave “as soon as reasonably practicable”, where the same issues as mentioned above may again come into play. Fifth, due to the above, prosecution nearly always rely upon landowner evidence. Individuals may be wary of providing such evidence. The Bill requires substantial amendment to achieve its desired purposes.

Wayne Beglan is a barrister at Cornerstone Barristers

UBER RULING: THIS IS JUST THE START, says Kate Hindmarch

The momentous move that Uber has made in granting its workers access to basic worker rights will be a real turning point for the nearly five million UK workers that are engaged in the ‘gig economy’.

One of Uber’s leading arguments suggested that its self-employed contracts offered workers more freedom and flexibility in their work life. The Supreme Court, however, noted that in reality Uber drivers actually had limited control over a large amount of their employment agreement, including not having the ability to set their own price. The claims of freedom and flexibility echo a large proportion of contracts within the gig economy that will now fall under the scrutiny of the law.

There’s no doubt that other major businesses within the gig economy will be placing aside funds to be able to cover minimum wage, pension contributions and holiday pay for their workers. The employment tribunal decision that went on to be confirmed by the Supreme Court has shone a spotlight on the practice of creating legally vague arrangements in order to avoid the ‘workers’ classification and in turn avoid liability to these workers.

“Questions have been raised globally over the role of the gig economy, and the extent to which these workers should be afforded the limited rights that employees enjoy. While the UK Supreme Court ruled in favour of protecting gig economy workers, within the US, Uber, along with other gig economy businesses, successfully convinced voters to back Proposition 22, protecting them from being liable to California state employment law.

Although companies such as Uber continue to use these self-employment tactics in a range of countries, the Supreme Court ruling will likely cause a global ripple effect resulting in an increase in legal cases being brought against Uber and others across the world.”

Kate Hindmarch is a partner in Employment Law at Langleys Solicitors

OTHER COMMENTS ON THE UBER JUDGMENT INCLUDE

Philip Richardson, partner and head of employment law at Stephensons

“This decision by Uber is an important and very welcome milestone, not only for their 70,000 employees, but also for the gig economy as a whole. The judgment of the Supreme Court last month not only forced the hand of Uber but should also act as a wake-up call for many other companies that still use this employment model.”

Fairwork Researcher, Oxford Internet Institute, University of Oxford

“The Supreme Court ruling said Uber drivers were entitled to worker entitlements from the time they log in to the time they log off. Uber, however, is committing to these entitlements only from the time the trip is accepted till drop-off. However, similar to how restaurants don’t only pay waiters for the time they are serving tables, ride-share drivers deserve to be paid for the time they spend between rides. Uber’s business model inherently relies on having a large pool of workers waiting to pick up passengers. Many drivers’ waiting times have become even longer during the pandemic, due to the drop in demand, directly affecting their income.

“ Uber’s new policy fails to comply with our principle of Fair Pay which states that workers should earn at least a minimum wage after taking account of (1) work-related costs and (2) active hours, which includes both direct and indirect hours of work. Uber’s decision includes the former but not the latter, in contravention with the UK Supreme Court’s judgment. Furthermore, their statement does not provide an indication of how ‘vehicle running costs’ will be calculated for each driver, and whether workers or unions will have a say in this calculation. Uber’s statement is also silent on many other aspects that affect workers’ livelihoods, including a due process for disciplinary decisions, which has been a long-standing demand of gig workers in the UK. There is also no mention of sick pay, protection against discrimination and other basic rights that drivers should be entitled to as workers.

“The tide might very well be turning against unfair practices, but at Fairwork we believe there is still a lot more work to be done with platforms, unions, workers, and policy-makers to ensure that the demands of workers are heard, and that gig work becomes synonymous, at last, with fair work.”

VACCINE PASSPORTS NEED THE STAMP OF RELIABILITY, says Eduardo Ustaran

The right privacy practices can make a significant contribution to the lawful and ethical roll out of vaccine passports by both governments and businesses. Well-accepted principles, like transparency, purpose limitation and data minimisation can guide this deployment and practical tools like privacy impact assessments will ensure that we achieve the best of all possible worlds. Governments and healthcare providers have a responsibility to ensure that only the right amount and type of data is made available, while access to such data by businesses must be limited to what is necessary to verify that someone has been vaccinated.

One of the great legislative data protection novelties introduced by the EU General Data Protection Regulation (GDPR) was the idea of deploying measures by design and by default aimed at ensuring that only the personal data that is truly necessary for a given purpose is collected and used. This is key to the way in which vaccine passports should be designed by those working on any kind of digital certificate.

The design and deployment of vaccine passports must also take into account the likely attempts to deceive the system. Ensuring the reliability of the information embedded in vaccine passports will not just be a matter of cybersecurity but a pillar for public health.

Business in industries ranging from travel and hospitality to sporting events relying on a system of vaccine passports or certificates will have a vital role to play in making sure that such tools serve a beneficial purpose for society as a whole. In the same way that privacy impact assessments are a cornerstone of data-related innovation, any business seeking to rely on vaccine passports should undertake an impact assessment that identifies and mitigates any potential discrimination risks.

There is still much to be learnt and debated about the future of vaccine passports, but data protection can make a significant contribution to their lawful and ethical roll out. The experience of the past year shows that data protection does not get in the way of solving practical problems like fighting the pandemic and helping us overcome it, but it is important to do that within the applicable legal framework around privacy and cybersecurity.

Eduardo Ustaran is Co-Head of the Global Privacy and Cybersecurity practice at Hogan Lovells

APPOINTMENTS OF THE WEEK

LUCY ENGLAND TO FOX WILLIAMS

Lucy England has moved as a partner to the commercial and technology group at Fox Williams.

Lucy brings extensive experience of the aviation and travel industries and understanding of the impact of technology from Bird & Bird where she was a partner in its commercial group and was travel group lead. Recently she has been advising businesses in those markets on the serious impact of the Covid pandemic.

“The travel and aviation sectors faced dramatic change before the advent of the Covid pandemic driven by new and exciting technologies,” she says. “Covid has accelerated this change with travel businesses looking forward to a substantial post-pandemic bounce.”

Rhys Griffiths, partner and head of the travel group at Fox Williams commented, “Lucy’s appointment enables us to further build our reputation as the ‘go to’ firm for the travel and aviation industry.”

DANIEL MARTIN TO JMW SOLICITORS

Daniel Martin has been recruited as a partner by JMW Solicitors LLP to join its financial and business crime, regulatory investigations and serious general crime team. Martin joins from Blaser Mills Law where he gained considerable experience in cases involving serious and organised crime, often with an international element. He specialises in corporate and financial crime, working on cases involving high value and complex fraud. He also advises corporates on internal investigations and bringing private prosecutions in the criminal courts and has significant experience in defending asset recovery and confiscation proceedings under the Proceeds of Crime Act (POCA). He advises corporate clients on regulatory compliance with UK financial crime law, including the AML/CTF regime, and is a specialist Solicitor-Advocate, regularly representing clients in the Crown Court. He is ranked as a ‘Next Generation Partner’ in the Legal 500.

SOPHIE ASHCROFT TO BROWNE JACOBSON

Sophie Ashcroft has joinedBrowne Jacobson in its London office as a specialist commercial tech disputes partner. She was formerly at Clyde & Co. having had over 10 years’ experience acting on significant international and domestic disputes for a client base that comprised large corporates, government bodies, entrepreneurs and SMEs. She has particular expertise in handling complex disputes arising out of IT and outsourcing projects,

“Sophie’s wealth of expertise in complex tech disputes will be a real asset to our current offering and will allow us to further build on our credentials with our target markets. She will be a real boost for our growing practice.” said Declan Cushley, partner and head of IP and commercial group at Browne Jacobson whichadvises on large scale, business critical IT projects, international patent litigation cases and complex, multi-jurisdictional data protection and privacy issues.

PROFESSOR ROBERT SHUTZE TO CORNERSTONE BARRISTERS

Professor Robert Schütze, a constitutional scholar with a particular expertise in the law of the European Union and comparative federalism, has joined Cornerstone Barristers as an Associate Member.

Schütze is Professor of European and Comparative Law at Durham University and Luiss (Rome) and the Co-Director of the Durham Global Policy Institute. He was called to the Bar in 2020.

He is a permanent Visiting Professor at the College of Europe (Bruges); and in the past, he has been a Visiting Professor or Fellow at the British Institute of International and Comparative Law (London), the Centre for European Legal Studies (Cambridge), the Institute of European and Comparative Law (Oxford) and the Max-Planck Institute for Comparative Public Law and International Law (Heidelberg). He has been a Fulbright-Schuman Fellow at the Centre for European Studies at Harvard University and a Braudel Senior Fellow at the European University Institute. He is the author of numerous publications including European Union Law and An Introduction to European Law (both with Oxford University Press).

LEGAL WEBINARS, BLOGS and other E-VENTS

COLLYER BRISTOW The Valuation of ArtThe latest podcast in our series ‘The Fine Art of Probate’

ThoughtLeaders4 PrivateClient: Sudden Incapacity: Legal implications under the prevalence of Covid’ webinar on 23 March 2021.

The informative and timely discussion will centre around issues of incapacity whilst determining the best interests of patients in the midst of a very challenging 12 months and it falls on the same day as the national day of reflection which will see a minute’s silence at 12 noon. Chaired by Sarah Williams, Payne Hicks Beach, experts will talk from all perspectives looking at processes, challenges and the emerging role of ICU mediation.

The panel line-up chaired by Sarah Williams is:

Jennifer Lee of Pump Court Chambers; Dr Chris Danbury, Consultant, Intensive Care Physician and mediator; Jessica Henson of Payne Hicks Beach and Michael Mylonas QC of Serjeant’s Inn Chambers.

Issues that will be covered will include:

– The definition of incapacity and determining best interests of the patient

– Trusted advisors of the patient and next of kin

– Disputes with the clinical team and how to navigate it

– The role of ICU mediation and the pathways to agreement and resolution in the Court of Protection

– The legal implications if live legal proceedings (or legal decisions e.g with trusts) involve the incapacitous individual

For more Event Page link (http://bit.ly/30Tp5Th)

We very much hope that you have enjoyed this first anniversary edition but look forward even more to producing next week’s output so please send your news, views, insights and comments to