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The Times

Friday, May 5 2017

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

Today

  • Stand up to fraud investigators, Law Society says
  • BBC accuses Sir Cliff of 'unreasonable' legal costs
  • Commit to no-fault divorce, lawyers urge politicians
  • Sacked police officer challenges panel’s immunity
  • City firms named in gender diversity league table
  • Eversheds retains top brand position
  • Isis ‘may have committed genocide’ against Yazidis
  • Comment: Can divorce put a price on genius?
  • The Churn: Three directors slot in at University of Law
  • Blue Bag diary: Judge reopens debate over lord chancellor’s role

Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.

 
Story of the Day

Stand up to fraud investigators, defence lawyers told

White collar crime lawyers welcomed guidance from solicitor chiefs that they do not have to kowtow to fraud investigator demands when clients are being interviewed.

Yesterday the Law Society criticised Serious Fraud Office (SFO) tactics which it said were designed “to limit the role of legal advisers to witnesses in fraud investigations”. The society – which represents 130,000 solicitors in England and Wales – said it was concerned by the SFO’s approach to section 2 interviews conducted under provisions of the Criminal Justice Act 1987.

Those interviews take place during the course of SFO investigations and any person with relevant information can be compelled “to answer questions or furnish information in relation to a fraud investigation”.

It is a criminal offence not to comply with a section 2 interview requirement unless the person has a “reasonable excuse”. But white collar fraud defence lawyers have become concerned that the SFO has tried to limit the involvement of solicitors when acting for someone interviewed under section 2. Fraud investigators also ask lawyers to give a series of undertakings in advance of attending interviews that the society claims are too limiting.

Robert Bourns, the society’s president, said a practice note issued to solicitors was meant “to draw our members’ attention to the potential issues raised by the SFO guidance”. “Our practice note addresses concerns about the professional conduct implications of the SFO’s guidance, and stresses the care that needs to be taken when giving undertakings.”

Specialist lawyers welcomed the move. “The Law Society has reminded us that the SFO's guidance does not override a lawyer's professional obligations to the client,” said Louise Hodges, a partner at London law firm Kingsley Napley.

“Any interview terms requested by the SFO should be explained to the client and if not considered appropriate or reasonable, a lawyer will now have more confidence in pushing back and negotiating with the SFO, or even giving consideration as to whether the client has a reasonable excuse not to comply with the request at all.”

 
 
News Round Up
BBC accuses Sir Cliff of 'unreasonable' legal costs

BBC executives have accused Sir Cliff Richard of spending “grossly unreasonable” amounts on lawyers after the singer began legal action over their reports naming him as a suspected sex offender.

They say that the pop star has already run up legal costs of more than £500,000 which are on “on any view disproportionate”. Lawyers representing the BBC made the criticism during a High Court hearing in London on Thursday. The singer is seeking damages over the news reports and BBC editors have said they will ‘’defend ourselves vigorously’’ against the claim.

Detail of Sir Cliff’s claim emerged last year in papers lodged at the High Court by his lawyers. Mr Justice Mann is overseeing the latest in a series of preliminary hearings in London, which Sir Cliff did not attend. It is scheduled to end today.

“The claimant’s budget shows pre-action costs of £525,437, including 1,287 hours of solicitors’ time,” Gavin Millar, QC, of Matrix Chambers in Gray’s Inn, who heads the BBC’s legal team, told the judge in a written submission. “Though not without its legal complexities, this case cannot have required extensive factual investigations on behalf of the claimant: the broadcasts are in the public domain,” Millar said. “On any view ... the claimant’s incurred costs to date are grossly unreasonable and disproportionate.”

Millar said that the judge should record “strong disapproval”. If Sir Cliff’s claim succeeds, and he wins damages, the BBC could be ordered to pick up all his lawyers’ bills.

Gideon Benaim, a partner at the London law firm Simkins, acts for Sir Cliff. He and the firm declined to comment. However, a spokesman for the singer said: “Sir Cliff Richard incurred these costs and expenses over more than a two year period, we say as a direct result of the actions of South Yorkshire Police and the BBC. Ultimately it will be down to a judge to decide whether or not he should recover such costs and expenses in full or in part, or at all.”

Commit to no-fault divorce, lawyers urge politicians

Family lawyers have urged politicians to allow divorce without blame.The main political parties are urged today to commit to a reform of divorce laws including bringing in no-fault divorce.

Resolution, an association of family lawyers with 6,500 members, said it should be included in a wider reform of divorce laws. In a letter to the major parties Nigel Shepherd, the association’s chairman, said that introducing no-fault divorce, giving cohabiting couples basic legal rights, improving access to the family justice system and giving more financial clarity on divorce would “make a huge, positive difference to the lives of the hundreds of thousands of people that separate each year”.

In his letter, Shepherd said that “current divorce law does not encourage couples to divorce amicably” and that “people often have to cite unreasonable behaviour or adultery on the divorce petition”. Resolution claims this situation leads to unnecessary conflict, makes an amicable separation less likely, and reduces the chances of reaching agreement on children and financial issues.

Shepherd proposed that the law be changed to allow for divorces to be “finalised where one or both of the parties to a marriage give notice that their marriage has broken down irretrievably and one or both of them are still of that view after six months”.

Sacked police officer challenges misconduct panel’s immunity to suit

A sacked police officer has gone to the country’s highest court to challenge police misconduct panels’ long held position that they cannot be sued.

The police officer alleges that a panel acted unlawfully by discriminating against her on the ground of disability when it dismissed her after an altercation. The officer – known only as P – admitted that she had been drunk at the time of the incident in 2011 but said that her behaviour resulted from post-traumatic stress disorder caused by an assault she had suffered the previous year.

The employment tribunal and its appeal tribunal both dismissed the police officer’s claim, ruling that the police misconduct panel was a judicial body that enjoyed immunity from suit.

The case’s two-day hearing at the Supreme Court in London closed yesterday. Equality campaigners have rallied round P’s case, claiming that more than 100,000 ethnic minority professionals could be affected by the ruling. They argue that professional disciplinary bodies have free reign to hand down decisions that could discriminate, while claiming immunity from suit.

A coalition of groups, including the Society of Black Lawyers, the Association of Muslim Lawyers and the National Black Police Association, have been granted leave to intervene in the appeal before the Supreme Court.

Lady Hale, vice-president of the court, is leading the bench for the hearing, which also includes Lord Kerr of Tonaghmore, Lord Wilson of Culworth, Lord Reed and Lord Hughes. A judgment is expected in September.

Nine City firms named in gender diversity league table

City of London law firms accounted for nearly a fifth of The Times’s league table of the best employers for gender diversity, joining a mix that included MI5 and the British army.

Nine legal practices featured in the top 50 list, including CMS, the Square Mile firm involved in a controversial tripartite merger that launched earlier this week. The other eight law firms to make the top tier were Addleshaw Goddard, Ashurst, Eversheds Sutherland, also the product of a recent merger, Herbert Smith Freehills, Hogan Lovells, Linklaters, Norton Rose Fulbright and Pinsent Mason.

Linklaters was the only member of the elite group five “magic circle” law firms to feature on the list, which also included all of the “big four” accountancy practices and the renowned international consultancy business McKinsey & Co.

Ashurst was singled out for the “game changer” award for its revised work allocation programme. The scheme removes decision-making regarding the assigning of files to junior lawyers from senior partners so that personal favouritism cannot play a role.

Eversheds retains top brand position

Eversheds has retained its place at the top of the list of “strongest” UK legal profession brands, despite having partially changed its name after a transatlantic merger earlier this year.

The firm – which is now Eversheds Sutherland after tying the knot in with a Washington DC firm in February -- has finished top of the brand awareness list for three years on the trot. “Eversheds Sutherland has received extra attention since the announcement of its US merger, now offering a sizeable presence in the largest and most important legal market in the world,” explained Lisa Hart Shepherd, the chief executive of Acritas, the brand consultancy that runs the annual survey.

Pinsent Masons, another City of London firm, took second place, jumping over another transatlantic firm, DLA Piper, which this year came third. Rounding out the top five in the brand strength table were two Square Mile “magic circle” practices – Slaughter and May and Linklaters. They were followed by two more of the magic five: Clifford Chance and Allen & Overy.

The final magic circle player, the Anglo-German law firm Freshfields Bruckhaus Deringer, trailed well behind in twelfth position, but still one place above CMS, which has just completed one of the City’s most ambitious mergers.

Isis ‘may have committed genocide’ against Yazidis in Iraq

Alleged Islamic State atrocities allegedly perpetrated against the Yazidis in Iraq could legally constitute genocide, human rights researchers have said.

Isis fighters are alleged to have trapped up to 50,000 people on Mount Sinjar in northern Iraq, close to the Syria border, in 2014. Analysts maintain that thousands died through hunger and dehydration before armed forces from a coalition of western countries began aid drops and an air campaign against the jihadis. The military action eventually allowed the Yazidis to escape.

Research published in the Human Rights Law Review yesterday claimed to provide “strong evidence” to support a prosecution for genocide against IS. “In view of the limitations of our sources and, in particular, the lack of access to information on individual perpetrators, we have not been able to reach a view on whether individuals had the specific intent necessary to commit the crime of genocide,” said Aldo Zammit Borda, a senior lecturer at Anglia Ruskin University and one of the report’s authors.

“However, we have uncovered a pattern of conduct which may be seen as indicative of the existence of a genocidal plan on the part of ISIL, as a body, against the Yazidis.”

Last year, the US House of Representatives and the secretary of state at the time, John Kerry, described Isis’s actions against the Yazidis as well as other religious and ethnic minorities as genocide.

In Brief

Defence Secretary ‘pressured regulators to charge law firm accused of pursuing false claims that British troops murdered Iraqi civilians' – Daily Mail

Google reaches $334m tax settlement in Italy – Wall Street Journal

Bristol University law student is sixth to die in similar circumstances this academic year – The Sun

 
 
 
Byline
Comment

Can divorce put a price on genius? Henry Hood

A clutch of recent divorce cases has considered “special contribution” in the division of marital assets. It is a concept which, so far, has only been invoked in the context of prodigious business wealth created by husbands.

Could this suggest the return of discrimination in the family courts, which was supposedly banished in 2000 in White v White?

In 2001, Michael Cowan was allowed to keep 62 per cent of his £12m assets and in the years that followed others, including the advertising tycoon Sir Martin Sorrell, were similarly favoured in relation to their ever larger fortunes. But all were dwarfed in 2014 in the divorce of Sir Chris Hohn, who was also allowed to keep the larger share of a fortune worth billions.

Next in line could be Ryan Giggs. The former Manchester United and Wales footballer had skills more of an athletic than business nature. Can he persuade the court that they were such as to entitle him to the greater share when the assets are divided with his wife?

The law seeks a fair outcome, which is easier said than done. Where children’s needs are not an overriding issue this should mean equal division of assets made during the marriage, with money-making and home-making ranking equally in the balance.

However, the court is required to assess each party’s contributions, giving rise to the possibility that the contribution by one spouse towards the creation of the family wealth has been so substantial that it is neither matched by the other’s contribution, nor equitable to disregard it when dividing marital assets. That is special contribution.

The contribution has to be quite extraordinary. Skills that are rare, but not unique, will not suffice. With each case the bar has been raised. So far, only businessmen have cleared it although even for them, the size of fortune alone (Hohn excepted) is no longer enough, as Randy Work discovered in April when his £144 million fortune failed to persuade the Court of Appeal that his contribution was the product of the near genius that is now required.

How fair is this when considering each party’s different roles? However brilliant, the wealth-creator within a family would surely struggle without the practical support at home from -- as it has so far invariably been -- the wife. How much wealth would be created without that? Moreover, brilliance shown in childcare and homemaking seems never to be considered a special contribution.

While they may not be the unique skills that judges now look for, is it also the case that the link between that contribution and wealth creation is only indirect? That would be a telling observation on our times.

Henry Hood is a partner and head of the family law department at the London law firm Hunters

 
 
Tweet of the Day

Thank goodness for sensible, proper judges who genuinely listen to applications & come up with right decision.

Cathy McCulloch @CathyMcCulloch

 
 
Blue Bag

Judge reopens debate over role of lord chancellor

Lord Judge, the former lord chief justice, was in combative mood last Wednesday, when he gave the Bingham Lecture in London.

Not only did he deliver a powerful analysis of the legislative impact of Brexit, warning that the imminent "tsunami" of legislation would go unscrutinised by parliament, but he also had a pop at the constitutional mess existing around the role of the lord chancellor and justice secretary.

Lord Judge reminded the audience that when Tony Blair’s Labour government first mooted abolishing the lord chancellor role in 2003, the then lord chief justice, Lord Woolf, first heard the proposal on the radio. He said that one significant yet underreported consequence of that constitutional upheaval, which created today’s double-headed role, was that “there is no member of the cabinet who has had any specialist experience or practical understanding of the constitution which the lord chancellor in his former role brought to the table”.

It was a clear sideswipe at the incumbent, Liz Truss, but also a wider point. Lord Judge reminded the audience that the House of Lords constitution committee had recommended in 2014 that a senior cabinet minister be given responsibility for oversight of the constitution as a whole. That had been ignored.

He said: “That crucial function personally performed by the old-style lord chancellor in reality is not capable of being performed either by the minister for the constitution or indeed by the minister for the Cabinet Office, who has been assigned this responsibility.

"Neither is an office which is remotely capable of replacing the old style lord chancellor, who would have appreciated some of the subtle nuances which underpin our constitutional arrangements, and whose office carried historic and effective weight in cabinet.”

Lord Judge went on to note that when Margaret Thatcher was prime minister the lord chancellor carried that weight. Both when the holder was Lord Hailsham of Saint Marylebone and his successor Lord Mackay of Clashfern, Thatcher would often defer to them, Lord Judge said. And she never claimed – as she did about her other ministers - that they were “talking rubbish”.

How many bras should a divorce lawyer own?

One loyal reader points out that our recent reference to Baroness Shackleton of Belgravia never giving media interviews is nearly correct, in as much as the renowned “Steel Magnolia” of divorce lawyers and partner at the London law firm Payne Hicks Beach, has consented to the odd one or two.

One occasion was in May 2006, when Lady Shackleton spoke to this very newspaper. However, our correspondent has also dug up a 1990s copy of Vogue, which carried an interview with her, in which the cream of divorce lawyers confessed to owning only one nightie, six bras and no Wellington boots.

Our correspondent seems to adopt the view that six is a low number, but The Brief is open to alternative suggestions.

Get an app for it

Ever since Baker McKenzie launched its dawn raid app last month, law firm rivals have been working tirelessly to get into the game, and now Taylor Wessing has hit the mark.

The Baker McKenzie app provides a handy guide to everything a chief executive needs to know when the regulatory authorities coming knocking at an uncivilised hour. Taylor Wessing has sensibly not taken on its counterparts in the same market, but has ploughed its own furrow with a data breach app. The flash piece of kit, which was released yesterday, aims to help companies prepare for and respond to data breaches in advance of the dreaded EU General Data Protection Regulation, which will be implemented in May 2018.

“Keeping that data secure is often difficult” intones Paul Glass, the Taylor Wessing partner charged with flogging the device. Indeed Glass presses the main button by referring to corporate wallets. “With the GDPR coming into force, fines stretching to millions of pounds will be introduced should security breaches occur. The message is clear – companies need to take action now or risk falling foul of the updated regulation.”

 
 
The Churn

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

Three directors slot in at University of Law

A senior level shake-up at the country’s biggest law school continues as yesterday three of the University of Law’s branches were allocated new directors.

Jill Howell-Williams and Sandie Gaines take over at the intuition’s branches in Moorgate and Bloomsbury in London, respectively. And Zoe King takes the reins at the university’s Bristol site. Howell-Williams has qualified as both a barrister and solicitor; she joined the University of Law in 1997 and has led the Moorgate centre’s academic staff. Gaines, also a qualified solicitor, moves to the capital from the university’s centre in Manchester, where she was director. King, also a solicitor, has been interim director at Bristol having joined the university in 2011.

The institution has been through a series of high-level overhauls since it was first sold to a private equity house in 2012. Three years later it was sold again to a private education provider, Global University Systems.

Elsewhere on the greasy pole …

Jonathan Morton – a commercial property specialist – has been elected as chairman of the national law firm Clarke Willmott, the practice announced yesterday. Morton takes over from Tim Walker, who has served two consecutive three-year terms in the role.

In the partnership lateral-hire market, the City of London firm Bird & Bird has pinched Andrew Danson, a gambling law specialist, from the London office of the US firm K&L Gates. And in Paris, “TwoBirds” has lured Eric Charvillat, a banking and finance lawyer, to its partnership; he moves from local firm Latournerie Wolfrom Avocats.

The London firm Bristows has promoted Angela Fouracre, a technology specialist, to its partnership.

In the cluttered world of international law firm networks an outfit that claims to be one of the largest has elected a new chairman. Sebastian Iribarne takes over the top slot at Lex Mundi, which has 160 member law firms internationally. He is a partner in the Brazil office of the Buenos Aires and New York firm Marval O’Farrell Mairal.

 
 
Quote of the Day

“The early stages of a campaign can be easily fitted around my exams. I have friends who have been pulling all-nighters at the library but my way is a few hours each day.”