Problems viewing this? Click to view in your browser
The Times

Friday, October 7 2016

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

Today

  • CPS in large cash payment to man wrongly jailed for six years
  • Cherie Blair loses challenge to buy-to-let tax
  • TalkTalk fine is sign of larger penalties to come
  • Fracking fight not over, forecast lawyers
  • Law firm named as Scotland’s best employer
  • Brexit countdown: No easy passage for third country passports
  • Comment: Yanks will remain over here despite Brexit
  • The Churn: Barrister is first woman City senior coroner
  • Blue Bag diary: Roll up, roll up for the three-way merger show
  • More Blue Bag: Lord chancellor has that frightened rabbit look

Tweet us @TimesLaw with your views.

 
Story of the Day

CPS ‘pays £100,000’ to man wrongly jailed for six years

The Crown Prosecution Service has agreed to pay a “significant amount” in damages to a man who wrongly spent six years in jail accused of conspiring to pervert the course of justice during a murder trial.

Conrad Jones, 50, is believed to have received some £100,000 in damages over the prosecution that arose out of the murder trial into the death of Clinton Bailey in Coventry in 2005. During Jones’ appeal, it emerged that the CPS had failed to disclose critical evidence that undermined the case against him.

The undisclosed settlement came after Jones served six years of a 12-year sentence for perverting the course of justice in attempting to bribe, threaten and intimidate a key witness, Maria Vervoort, in the murder trial. Jones had always strongly denied the charges against him. However, on the basis of the evidence disclosed at that time, Jones was convicted after lengthy jury deliberations and a majority verdict, the trial previously having resulted in a hung jury.

Jones was given a lengthy sentence reflecting the serious nature of the charges and the vulnerability and apparent extreme distress caused to Vervoort. He tried unsuccessfully to appeal his sentence and was eventually released on licence in 2012.

As a result of a subsequent arrest for conspiring to pervert the course of justice, of which he was acquitted, a different team of lawyers reviewed the disclosure that took place in 2007. They then came across material that they considered undermined the original prosecution.

The Court of Appeal allowed his appeal and quashed his conviction in 2014, although it was out of time. One of the appeal judges, Lord Justice Pitchford, was highly critical of the Crown’s failure to disclose the evidence, describing the lapse as lamentable.

Sasha Barton, a lawyer at Hodge Jones & Allen who brought the claim against the CPS, said: “It is clear that the CPS and prosecution counsel had in their possession, both while my client remained on remand in prison awaiting trial and at the time of my client’s trial, surveillance material which showed he could not realistically have met with and bribed Ms Vervoort not to give evidence.

“They knew it was relevant, they knew it undermined the prosecution case and strengthened Mr Jones’ defence and they knew that the law required them to disclose it.”

 
 
News Round Up
Cherie Blair loses challenge to buy-to-let tax

Private landlords have lost a challenge to the legality of proposed changes to taxation of income from buy-to-let properties in a case that saw Cherie Blair, QC, on the losing side yesterday.

The wife of Tony Blair, the former prime minister, was acting for the campaign group Axe the Tenant Tax. The umbrella coalition of landlords had argued at London’s High Court that the changes would be “unfair and unlawful” and the case should go to a full judicial review hearing. However, Mr Justice Dingemans dismissed the case put forward by Blair (pictured).

Landlords leading the campaign vowed to continue their campaign. “We will be launching a range of lobbying, media and grassroots activism measures over the coming days and weeks,” the campaign leaders - Steve Bolton, chairman of Platinum Property Partners, and fellow landlord Chris Cooper - said in a joint statement after the hearing.

Earlier in court, Blair elicited loud applause from landlords and their supporters as she accused the government of seeking to introduce “unreasonable and discriminatory” tax changes. The barrister, who is now a partner at a transatlantic law firm called Omnia Strategy, told the court that the changes would result in cuts in profits for “hard-working members of the public” who had bought properties to rent in order to supplement their savings at a time when interest rates were low.

The changes, she said, would give an unfair advantage to corporate landlords who would not face the same loss of income. As they started applauding, the judge told the crowd packing court 18 at the Royal Courts of Justice that they were in danger of being thrown out, saying: “I understand the strength of feeling. Please listen in silence or I will unfortunately have to clear the court.”

After the court defeat, Blair described the decision as “very disappointing …From the outset, the legal process was just one aspect of our clients’ fight against this unfair measure. Together with their impressive and growing coalition, they will continue to engage with the government and the legal team wishes them every success.”

TalkTalk fine is sign of larger penalties to come

The record fine imposed on the broadband company TalkTalk after the personal details of hundreds of thousands of customers were stolen is a sign of things to come, lawyers have said.

TalkTalk was hit with a £400,000 penalty after a data breach involving bank account details of nearly 157,000 people. It was the biggest fine levied by the information commissioner, which has power to impose a maximum penalty of £500,000.

“The timing of the information commission’s office flexing its muscles in this way is interesting and perhaps indicative of what’s to come under the General Data Protection Regulation when fines could hit the giddy heights of €20 million or 4 per cent of global annual turnover,” said Lucy Pegler, a data protection specialist lawyer at the law firm Burges Salmon.

Other lawyers warned the boards of fellow FTSE 100 companies that the fine sent a clear message regarding cyber security and the methods taken to protect personal data. “Leaving the door open and then saying you were the victim of a cyberattack is not an option,” said Paul Glass, a partner at Taylor Wessing, a City of London law firm.

The General Data Protection Regulation is set to come into force in May 2018. “If this breach had happened under that regime,” said Glass, “TalkTalk would almost certainly have been fined many millions of pounds. Soon the fallout from a breach will not just be clean-up costs, loss of customers and bad publicity - companies will also be facing very significant regulatory action if they get cyber security wrong."

Mark O’Halloran, a partner at the law firm Coffin Mew advised that companies should instruct specialists to test IT systems and procedures for vulnerabilities. “Auditing the security of IT systems will also be a legal requirement from 2018,” he said.

Fracking fight not over, lawyers warn

Britain’s fracking industry was warned that it had “won a battle rather than the war” after ministers gave the green light on Wednesday to a scheme in Lancashire.

Lawyers said that opponents would launch a judicial review application of the ruling from Sajid Javid, the communities secretary. The energy company Cuadrilla now has permission to drill up to four wells.

"This decision is a significant step forward in the evolution of the nascent UK fracking industry,” said Carl Roche, a real estate litigation specialist lawyer at the law firm Osborne Clarke.

However, he warned that the “pro-fracking fraternity will appreciate they have won a battle rather than the war. Objectors to the fracking industry will likely pursue a judicial review, as an initial response to the government’s decision”.

Roche went on to predict that if that application failed, “objectors will explore other means of preventing fracking. Given the perception that fracking could result in damage to surrounding property, it is highly likely that in the future we will see objectors relying on the legal doctrine of ‘nuisance’ to seek injunctions to restrain fracking in order to prevent property damage”.

Law firm named as Scotland’s best employer

A law firm employing more than 400 people across ten offices has been named as Scotland’s best employer.

Thorntons, a practice founded in 1857 in Dundee, picked up the award from Business Insider magazine. The awards recognise businesses that promote staff development and health and wellbeing. Jack Robertson, the firm’s chairman, said: “We have invested in our firm through a number of strategic mergers in recent years and our legal and support teams across all our locations are vital to our continued success.

“We continue to invest in our training and internal developments as we look to ensure that our colleagues appreciate the value they add to the firm and our client services.”

Brexit countdown – legal update as the time to leave approaches

No easy passage for third country passports

Before the referendum vote in June, writes Edward Fennell, only the most obsessive anoraks amongst Brussels spods would have been able to explain the principle of equivalence. These days, the concept features on the BBC's Newsnight.

In simple terms, equivalence means third-party countries aligning themselves with the EU’s financial services regulations and it is now firmly on the national agenda as a key requirement for doing business with a post-Brexit Europe.

As lawyers at King & Wood Mallesons, an international law firm in the City of London, explained a few days ago, the Alternative Investment Fund Managers Directive (AIFMD) 2011 sets out that a “third-country passport” will be made available to qualifying non-EU managers who opt into full compliance with the law and submit to the jurisdiction of one of the EU's regulators.

“The timetable for introducing this passport has already slipped,” the firm said. “But it is expected to be made available to managers in some countries - including the Channel Islands, Switzerland and, possibly, the US - quite soon. That is, if politics doesn’t get in the way.”

A decision earlier this year from the European Securities & Markets Authority means that the European Commission is now required to draft a "delegated act" to give effect to a passport, whose main features were established by the 2011 directive. “But the process is not as straightforward as it sounds,” the firm warned.

First, many of the directive’s third-country passport provisions are “complex and may even be unworkable”. For example, managers will not get to choose which EU regulator will oversee them. Instead, this will be determined by a variety of factors, including their fund marketing strategy, which gives rise to uncertainties and anomalies.

It is also not clear what presence they will need to have on the ground in the EU but there clearly will need to be a local representative with whom their EU regulator can communicate.

Second, the interaction of the new passport with “national private placement rules” – regulations in each of the countries where the funds are to be marketed - is far from clear or satisfactory. The directive suggests that those national rules could be switched off on a pan-EU basis three years after the passport is made available.

However, it remains unclear whether that will happen and if it does whether they will be switched off for all countries, or just those that have had the benefit of the passport. “And finally,” the firm’s lawyers said, “there is politics. The commission’s delegated act will need to be approved by the council (made up by the member states) and the parliament. Giving EU-based institutional investors access to alternative funds managed outside the EU is, of course, absolutely essential.

“But, in a post-Brexit world, there is a risk that the EU turns inwards and adopts a more protectionist stance – especially as it contemplates what future access to give the UK. It is to be strongly hoped that it resists that temptation and that the transition to a level playing field for properly regulated funds elsewhere in the world can be dealt with in a coherent and level-headed way.”

In Brief

Corbyn appoints Shami Chakribarti as shadow attorney general – Daily Mirror

Hogan Lovells Hamburg MP steps down amid “illegal surveillance” claims – The Lawyer

‘New breed’ law firm enters administration – Law Gazette

Artificial intelligence disrupting the business of law – Financial Times

Steven Woolfe: Former barrister who grew up on council estate and became favourite to lead Ukip – The Independent

Google dealt setback in age bias case by judge interested in 'Googleyness' – Computer World

 
Byline
Comment

Americans will remain over here despite Brexit Tim Powers

In 2005, the partners of Haynes and Boone set a goal of opening a London office within a decade.

The imperative was clear: US law firms such as Haynes and Boone, with aspirations to serve clients across the globe in a seamless manner, must have an office in London. The city is a vital hub for international business and is home to some of the world’s leading legal talent.

Then, a mere week before the firm was set to announce a merger with the leading English boutique law firm Curtis Davis Garrard, UK voters chose to leave the EU. The result was neither expected nor desired but it did not come close to derailing the firm’s plans.

Why didn’t the partners flinch? As Haynes and Boone has grown from its Dallas roots, its lawyers have seen a significant increase in transactions negotiated under English law and in disputes for which the parties have agreed to London arbitration or High Court jurisdiction under English law.

English law will remain a dominant choice of law in cross-border transactions and international dispute resolution.

The firm was undeterred by Brexit for another reason: large law firms are increasingly exposed to but also insulated from regional political and economic uncertainties. The firm’s clients hail from roughly 30 countries and many operate in industries and jurisdictions that are not dependent on the UK’s trade relations with the EU.

Brexit has caused uncertainty in financial markets and disruption in the business world. But successfully managing a law firm in an increasingly competitive global environment requires long-term strategic vision and a steady resolve to grow and adapt to meet clients’ evolving needs — in both up markets and down markets.

Brexit will continue to create moments of instability in world markets in the years to come but determined law firms from overseas will nonetheless still be able to increase capabilities in London. Haynes and Boone, for instance, is recruiting lawyers with expertise in energy, private equity, and financial services.

Long before the firm articulated its London goal, its co-founder, Richard Haynes, expressed confidence that the practice would one day have an office in the city. When we finalised the merger, I called his widow and tell her the good news. I plan to share more good news with her in the years ahead.

Tim Powers is the managing partner of Haynes and Boone, a law firm based in Dallas that opened a London outpost last month

 
 
Tweet of the Day

Please check your sheds and outhouses. https://t.co/2wlvl1hyeQ

QT @QuebecTango

 
 
Blue Bag

Roll up, roll up for the three-way merger circus

Partners on law firm management committees harbouring the notion that merger discussions can be conducted in a privacy bubble will be disabused of the idea with a glance at stories flying around current deal involving Olswang, CMS and Nabarro.

Not a day has passed in the past week or so without the legal press reporting on the latest discussions that the partners probably assumed were meant to stay within the four walls of a specially constructed “project merger” bunker.

Two days ago The Lawyer magazine blew the gaff on “secret Nabarro emails” that exposed “staff outrage”. Yesterday, it was the turn of website Legal Week with its report that Olswang kingpins were attempting to “lock-in” the firm’s partners for a year after the merger deal is signed.

That strategy was undoubtedly prompted by Legal Business magazine highlighting a string of four high-profile departures from the Olswang partnership in the run-up to and after merger discussions were leaked.

Lord chancellor has that frightened rabbit look

Liz Truss will probably be glad to see the back of Birmingham as the lord chancellor had a rather shaky time at the Conservative party conference.

Not only did the Daily Mail – effectively the conference newsletter – label her speech delivery as more wooden than a ping-pong bat, but she was reportedly caught off guard outside the hall by one of the relatives of the victims of the Birmingham pub bombings.

The Birmingham Mail reports that Julie Hambleton, whose sister, Maxine, was killed by one of the IRA bombs in 1974, pointed out that Truss’s cabinet colleague, the home secretary Amber Rudd, had told her that she had spoken to Truss about the campaigners.

Hambleton and others are pushing the government to create a legal fund for the families of the bombing victims that would be similar to that for the families of the Hillsborough stadium disaster. So far, the law firm for the families, KRW in Belfast, has been acting on a pro bono basis.

However, Hambleton told the newspaper that Truss looked “like a rabbit caught in the headlights. She blustered and referred me to her special advisor”. Hambleton continued that she was “in no doubt that Ms Truss knew nothing whatsoever about our case”.

No bar to Whiteman, QC

“Life is so unfair, so bloody unfair,” realised the five-year-old Peter Whiteman, son of a taxi driver, as he was persecuted at his East End primary school in London. “My faith in human nature was shattered.”

But according to Edward Fennell, his biography, No Bar to Success, reveals that intelligence, hard work and luck can enable even the outsider to make it. Now a successful QC and founder of his own chambers, Whiteman’s story feeds into today’s debate about social mobility and the revival of grammar schools.

Whiteman, whose book was launched earlier this week at Middle Temple Hall in London, had his big break by getting into Leyton county high school for boys. His ambition drove him to the London School of Economics where “Ash” Wheatcroft, the first professor of revenue law, became a mentor who shaped his future.

At 34 he became the second youngest QC ever. Not quite a tale of our times but it is a story of how, if you’re talented, you can buck the system.

 
 
The Churn

A run down of the big partner and team moves this week

Barrister is first woman City senior coroner

A senior-junior barrister has become the first woman to be appointed senior coroner for the City of London, officials in the Square Mile announced yesterday.

Alison Hewitt, an inquest specialist at 5 Essex Court in the Temple, will take up the post from next Wednesday. As the senior coroner for the City, Hewitt will investigate deaths suspected to have been either violent or unnatural, or cases where the cause of the death is unknown. The coroner decides whether to hold a post-mortem examination and, if necessary, an inquest.

Hewitt was called in 1984 at Middle Temple and will continue with her practice. She succeeds Paul Matthews, who has served in the post since 2002. Fourteen years ago Hewitt represented two coroners at the inquiry into the activities of the Harold Shipman, the GP who was convicted of murdering 15 of his patients.

Elsewhere in the City, Clyde & Co has picked up two partners, one from an international rival in the Square Mile. Stephen Webb, a planning lawyer, joins from King & Wood Mallesons, and fellow planning specialist Brian Greenwood joins from Winckworth Sherwood, which is based on London’s Southbank.

 
 
Closing Statement

I said, try again ...

The 1670 decision in Bushel's case in London established the right of juries "to give their verdict by their conscience" without being browbeaten by judges (Gary Slapper writes). Historically, however, in some jurisdictions, that principle has not always prevailed.

In a 19th-century case from a remote town in the American west, a jury was out for 33 hours in a murder trial before returning a verdict of “not guilty”. The defendant, though, was not in court to hear the verdict. The judge was unhappy and sent the jurors away again to reconsider their verdict. He urged them with great emphasis to come to a decision “more consistent with the facts”.

The jury retired again and after a while came back with a “guilty” verdict. This time the judge said he was very satisfied with the jury's verdict. Turning to the matter of sentencing, the judge then noted for the record that the defendant had already been hanged.

Gary Slapper is global professor at New York University, and director of its London campus; twitter @garyslapper