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The Times

Thursday, July 21 2016

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


  • Soubry latest to turn nose up at MoJ offer
  • May pressed for urgent legal aid eligibility review
  • Comment: Brexit court challenge should be celebrated
  • Ship claim must be paid out despite crew’s lies
  • Solicitors hail EU defeat for ‘snooper’s charter’
  • Law firms consider quitting Turkey
  • Bastille Day killer’s ‘lawyer’ in suicide attempt
  • The Churn: Maxwell lawyer stands down
  • More Churn: Kennedys opens in Brazil and Peru
  • Blue Bag diary: Law Society ideal for Russian oligarchs

Tweet us @TimesLaw with your views.

Story of the Day

Soubry latest lawyer to turn nose up at justice ministry offer

Judges and the rest of the legal profession might have to get used to a ministry of justice that is home to only one lawyer-minister after Anna Soubry turned down the prime minister’s invitation to join the team.

Leading commentators forecast that now the historic requirement that the lord chancellor must be legally qualified had been jettisoned, the ministry will have lost its cachet for lawyers.

Soubry (pictured), the MP for Broxtowe and a barrister-turned-TV presenter, was reported in The Sun newspaper to have told friends that the offer of a junior role at the MoJ was “an insult”.

Soubry had served as a junior minister in several departments under Theresa May’s predecessor in No 10, David Cameron, including stints at business and enterprise and defence.

In turning her nose up at the MoJ job offer, Soubry has reheated the debate over Liz Truss’s suitability for the lord chancellor role. Lord Faulks resigned from the ministry several days ago, voicing concern that Truss’s lack of experience would make it difficult for her to go into bat for the judiciary and the legal profession in cabinet.

Others have defended Truss. Yesterday, Carl Gardner, a former Whitehall lawyer and prominent legal affairs commentator on social media, told The Brief: “I’m worried Liz Truss has copped more flak than Chris Grayling and Michael Gove [her immediate predecessors] did because she’s a woman. Women always seem to be attacked more by everyone for everything.”

Gardner claimed that the appointment of the former solicitor-general Sir Oliver Heald as the only lawyer so far to the MoJ provided “hope”. But he went on to say that “a mini-boycott by lawyer MPs was fair enough since we’ve flipped from the lord chancellor having to be a lawyer to apparently now ruling them out for the job”.

News Round Up
May pressed for urgent legal aid eligibility review

Lawyers have called on the prime minister to review civil legal aid eligibility urgently amid claims that recent cuts have created a crisis in access to justice.

In an open letter to Theresa May, senior figures in the Young Legal Aid Lawyers organisation and the Legal Action Group claim that there has been a “huge reduction” in the number of legal aid cases funded since 2013.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo) removed advice on housing, debt, welfare benefits and private family law from the scope of legal aid.

According to Oliver Carter, a trainee solicitor at Irwin Mitchell, a national law firm, and Rachel Francis, a barrister at 1 Pump Court in the Temple – the joint chairmen of the group – “this has resulted in hundreds of thousands, if not millions, of people being denied meaningful access to justice”. The two lawyers point out in the letter that “the government has repeatedly said it will carry out a review to assess the full impact of the reforms and cuts to legal aid introduced by Laspo after three years”.

They call on May and Liz Truss, the new justice secretary, “to fulfil the commitment to review Laspo at the earliest opportunity. The review must fairly and objectively assess the impact of legal aid cuts on access to justice. We believe it is vital for the government to ensure that nobody is denied access to justice based on their ability to pay.”

According to Steve Hynes, director of the Legal Action Group, “the number of cases in both criminal and civil legal aid continues to fall. The MoJ are spending far less than they budgeted for.”

Hynes claimed that the “budget underspend means the new justice secretary has room to innovate”.

Ship claim must be paid out despite crew’s lies

An insurance claim of more than £3.2 million must be paid out even though a ship’s crew lied about the damage caused to a merchant vessel, the UK’s highest court has found.

In a judgment that will send shock waves through the maritime industry, the Supreme Court ruled by a majority of four to one that Versloot Dredging, the owner of a tanker called the DC Merwestone, are entitled to the claim, despite its crew’s attempts to cover up its negligence. In 2010 the tanker was struck by a flood in its engine room, which was irreparably damaged after the crew failed to close a sea inlet valve in the emergency fire pumps. The insurers’ solicitors were told that the crew maintained that the alarm could not be investigated in time because the ship was rolling in heavy weather.

While the Supreme Court justices acknowledged that the crew had lied about the storm conditions, they concluded that it was “immaterial to the insured’s right to recover”.

James Dalton, director of general insurance policy at the Association of British Insurers, said that the decision risked pushing up the cost of insurance and prolonging the payout process for honest customers.

Jim Cashman, a partner at Holman Fenwick Willan, the law firm representing Versloot Dredging, said: “The Supreme Court recognised the difference between an assured who uses fraud in an attempt to gain something to which he is not entitled, and one who makes a reckless statement but stands to gain nothing beyond what he is legally due.”

Solicitors hail EU defeat for ‘snooper’s charter’

Solicitors’ leaders increased pressure on ministers to amend the proposed so-called snooper’s charter after Europe’s top judges were advised that it would breach EU law.

The Law Society, which has intervened in a challenge to the Investigatory Powers Bill at the European Court of Justice, welcomed an opinion from the advocate-general that the legislation would be “incompatible with EU law".

The society, which represents some 130,000 practising solicitors in England and Wales, told the court that if implemented unamended the legislation would damage legal professional privilege, which protects communication between solicitors and clients. Robert Bourns, the society’s recently installed president, said that the advocate-general’s opinion “reflects our own, [which is] that data should only be retained if there are strict measures in place to protect fundamental rights, including the right to professional privilege”.

Lawyers specialising in technology and privacy issues forecast that regardless of the advocate-general’s opinion, the legislation could face a bumpy road. "The Bill extends mandatory data retention into site-level browsing histories, the Bill’s so-called internet connection records,” explained Graham Smith, a partner at Bird & Bird, a London law firm.

“The government acknowledges that these are more intrusive than ordinary communications data. This expansion may provide new grounds of challenge, whatever the decision of the [European] court. … Those could include not only privacy and data protection issues, but also intrusion into freedom of expression."

The advocate-general’s opinion is only advisory and the court could take a different view, although it usually follows advice. The challenge was originally brought jointly by two MPs, Tom Watson, Labour’s deputy leader, and the Conservative David Davis, who has now withdrawn after his appointment to the cabinet as the secretary of state for exiting the EU.

International law firms consider quitting Turkey

Turkey must “refrain from arbitrary arrests and detentions of judges and respect fair trials”, one of the UK’s leading human rights lawyers said yesterday as concerns mounted over the Erdogan regime’s reaction to last weekend’s failed coup.

The plea came as international law firms began weighing up whether it was worth maintaining a presence in the increasingly unstable jurisdiction.

Baroness Kennedy of the Shaws, QC, said: “At a time of political instability it is essential that the institutions that safeguard human rights and democracy are upheld. Protecting the independence and impartiality of the judiciary is crucial to ensuring the protection of Turkish citizens.”

Speaking in her role as co-chairwoman of the Human Rights Institute of the International Bar Association, the Doughty Street Chambers silk called on the Turkish government to uphold basic principles of the rule of law. Her co-chairman, Hans Corell, criticised the “sudden dismissal” of up to 2,500 judges in the jurisdiction after they were alleged to have supported the thwarted military coup.

“This sort of blanket dismissal is in direct conflict with Turkey’s constitutional protection for judges’ security of tenure and against unfair dismissal,” Corell said. “It also disregards international legal standards, such as the UN basic principles on the independence of the judiciary, which provide that all decisions related to judicial suspension and dismissal should be the result of a fair hearing and be subject to an independent review.”

As the ramifications of the political turbulence in Turkey became clearer, a senior City of London lawyer said that international firms should reconsider their presence in the jurisdictions.

Speaking to the American Lawyer magazine, Olof Clausson, a capital markets partner at the London office of Latham & Watkins, a US firm: said: “Fee levels have already been at a level where it is difficult for international quality law firms to justify deploying assets in Turkey, and a further deterioration in the market by political instability or otherwise is going to make it even more difficult.”

Bastille Day killer’s ‘lawyer’ in suicide attempt

A French lawyer who claimed to have represented the Bastille Day killer Mohamed Lahouaiej Bouhlel is understood to have attempted to kill himself after being unmasked as an alleged fraud, writes David Brown in Nice.

Corentin Delobel was quoted around the world describing how the man he had defended during a road rage trial in March had shown no sign of Islamic radicalisation. The lawyer also said that his client, who went on to kill 84 people and injure more than 300 last week during an attack with a lorry in Nice, showed no signs of psychiatric troubles.

Delobel was set to appear before a disciplinary hearing of the Bar of Nice yesterday morning. Jacques Randon, president of the Bar association, told Nice Matin newspaper that it appeared Delobel was in hospital after an attempted suicide.

He said that the “fragile” lawyer had never represented Bouhlel. Randon said the “serious” allegations concerned “several interviews [the lawyer] gave in a dramatic context”.

Myriam Bellazouz, 29, a Nice-based lawyer, was killed in the attack along with her mother. Randon told fellow lawyers who attended a memorial event: “I will remember her talent, her passion, her smile and her dedication to the Bar.”

In Brief

In this week’s Times Law

Elsewhere …

  • Facebook turns to Baker & McKenzie to fight US tax probe -- Legal Week
  • Calls for leasehold reform -- Law Gazette
  • Lawyer-matching service aims to recruit 20,000 clients -- Legal Futures

Brexit court challenge should be celebrated David Greene

The issue before Sir Brian Leveson in Tuesday’s judicial review application, and others that may follow it, is simple in concept but of significant constitutional importance: does the executive have the power by way of royal prerogative or otherwise to give notification to the European Council under Article 50.2 of the Lisbon Treaty absent a prior decision of parliament?

The simplicity of the issue is reflected in the length of the hearing of the application, scheduled for October. Two days are set aside. The constitutional importance of the issue is reflected in the fact that the lord chief justice will hear the application and that any appeal is likely to leapfrog to the Supreme Court.

The passion instilled in the issue is unfortunately reflected in the “hate mail” that we and others have received and commented on by the court, in pursuing a reasonable application from which the government will benefit as much as the public.

While the issue is embroiled in the politics of Brexit, this is an argument about the rule of law. Is what the executive proposes in giving notice of withdrawal from the EU without further parliamentary assent lawful? It is a question much debated, but a question on which all parties and particularly the government need determination by the courts before the event.

The current application proffers that parliamentary approval is required before the Article 50 notice is given. The sovereignty of the Queen in parliament is at the core of the UK constitution. Statutes properly passed by parliament are supreme over common law and prerogative. The power of parliament is to both make and unmake laws.

Parliament passed the European Communities Act 1972 because it incorporates EU law automatically into UK law. Only after parliament passed that act was (and could be) the Accession Treaty ratified. Since UK membership and all that went with it, including individual rights, was given effect by parliament, it is only parliament that can repeal that membership and those rights.

Article 50 is the only method of withdrawal from the EU. Notice given under it has an inevitable conclusion in that unless agreement is reached to extend the period in the limited circumstances set out, the UK membership of the EU concludes on the second anniversary of the notice. The EU treaties and EU law rights and the 1972 legislation will then cease to have effect. Only parliament can remove those rights and repeal the act.

The government suggests that the executive can use prerogative power to give notice under Article 50, but that prerogative power may not be used to remove, nullify, override or neutralise statutory rights.

The Divisional Court and the Supreme Court will opine on the issue. The ability for a private citizen to bring this before the court is a vital part of our civil society. That someone does so should be celebrated and not, as has been the case, condemned.

David Greene is senior partner at Edwin Coe, a law firm in London; he is the instructing solicitor for the applicant in the Brexit hearing

Tweet of the Day

I am a huge fan of Shami Chakrabarti, but if she has been offered a peerage by Labour, this is appalling.

Matt @MattBurton_law

Blue Bag

Law Society des res is ideal for Russian oligarchs

Donald Trump or Hillary Clinton will become only the 45th president of the land of the free and home of the brave; the Law Society of England and Wales – the home of the freshly polished gold lions on the railings in London’s Chancery Lane – is a bit ahead of that number, with Robert Bourns, a partner at the Square Mile office of the Bristol law firm TLT, last week becoming the organisation’s 172nd president.

But despite Law Society leaders being relatively two-a-penny, the organisation likes to celebrate the installation of the latest incumbent. So off to the Law Society’s Georgian townhouse around the corner from HQ for a drinks soiree for the legal media to meet Bourns.

The Carey Street address has always been something of a mixed blessing for the society. The plush digs make a nice pied-à-terre for out-of-town presidents; but they also look a bit opulent in an era of legal aid austerity and general pressure for bureaucratic belt tightening.

Which is why society bigwigs are frequently queried over whether they will be putting the gaff on the market. The several millions it would doubtless fetch could go to the more practical benefit of their solicitor members.

No plans to contact an estate agent at the moment, Bourns told The Brief. However, he acknowledged that it would be an attractive proposition to Russian oligarchs. Not least for its convenient position bang opposite the back of the Royal Courts of Justice. “They could have their own private tunnel to the court for their latest round of litigation,” quipped one drinks party wag.

Not such a travellin’ man

Is a row brewing between Bourns’ Law Society and the mighty American Bar Association? The main perk of being a society president is the foreign travel, as business class tickets are laid on to get to various overseas conferences and shindigs.

And for as long as anyone around Chancery Lane can recall, the annual ABA conference has been a stellar fixture in the president’s diary. But Bourns tells The Brief he won’t be going to this year’s bunfight in foggy San Francisco. English shun Yanks, headline? asks The Brief, suggesting that this sounds like a miniature version of BoJo-style diplomacy.

“I’ll be concentrating on domestic issues,” Bourns responds, invoking the sort of mood the former prime minister David Cameron did when proudly announcing he would be holidaying in the West Country yet again.

Very noble. And presumably Bourns also will be missing the biggest event in the calendar of every junket-addicted City of London lawyer – the International Bar Association’s week-long party, this year in Washington DC. Hang on – abstinence and a commitment to home affairs go only so far. “I have several speaking slots at the IBA event,” confirms the new president.

The Churn

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

Maxwell lawyer Oliver stands down as senior partner

Keith Oliver – the white-collar crime lawyer who leapt to fame a quarter of a century ago when he defended the son of the publishing baron Robert Maxwell on fraud charges – is standing down as senior partner of Peters & Peters.

The London law firm announced yesterday that Oliver, who turns 60 in September, will from October move to the role of head of international. He will be replaced in the senior partner slot by Michael O’Kane, the current head of business crime.

In 1999 Oliver told The Lawyer magazine that Kevin Maxwell – who was acquitted of high-profile fraud charges brought by the then relatively young Serious Fraud Office – was the “most intuitive, demanding and stimulating client you could have the pleasure to work with”.

Kennedys opens doors in Brazil and Peru

English law firms have recently been busy boosting their presence – or shuffling the deck chairs – overseas, with Kennedys making the most exotic move.

The City of London insurance law specialist practice has launched offices in Brazil and Peru. Fabio Torres will head the former and Marco Rivera Noya will take the reins in Lima, having joined from Osterling Abogados, a local firm.

Elsewhere, Linklaters, the London magic circle law firm, has given the nod to António Soares to head its Lisbon office. Soares has been a partner at the firm since 2002.

Niels Lutzhöft has joined the partnership of Bird & Bird, the London technology specialist law firm. He will be based at the firm’s Frankfurt office, having moved from Gleiss Lutz, a local law firm.

Reed Smith, the US-based firm, has cut an alliance deal with Resource Law in Singapore.

Back in Blighty, Jenny Sargeant has moved from Macfarlanes to join the partnership at Fladgate, based in London’s West End. In Cambridge, Susanne Hinde has been promoted to the partnership at Hewitsons.

Closing Statement

Fornication, adultery and pregnancy – legal life in Wisconsin

Women now account for more than 60 per cent of students admitted to law degree courses in Britain. But that feminisation is a relatively recent development.

In 1913, the Law Society declined to allow four women to sit its examinations. The Court of Appeal eventually upheld that decision, ruling that women were not “persons” for the purposes of the Solicitors Act 1843. The men did not want non-persons sitting in the exam halls writing examination answers.

Historically, the reasons why women were deemed by men to be unsuited to practise law were not generally articulated with any clarity. But there are some exceptions.

In a case in Wisconsin in 1875, in which Lavinia Goodell applied to be admitted to the Bar, Chief Justice Ryan said that women should not be involved in a discipline that would regularly expose them to “…sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy...prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, impotence, divorce; all the catalogue of nameless indecencies…”

Senior common room life in a Wisconsin law school at that time must have been something of a turbulent experience.

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