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The Times

Wednesday, March 1 2017

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

Today

  • Watchdog pushes for public naming and shaming of lawyers
  • Government faces judicial review over Green Bank sale
  • Anger at refusal to name alleged abusers in inquiry
  • Probate fee rise will ‘trigger avoidance gambits’
  • Mr Justice Warby to take over specialist defamation court
  • Intellectual property crisis over smartphone counterfeits
  • Comment: Human trafficking victims should not be charged with murder
  • The Churn: Bar chief executive retires
  • Blue Bag diary: Legal Ombudsman bans tea

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

 
Story of the Day

Ombudsman pushes for public naming and shaming of lawyers

Price comparison websites could soon be handed official data so they can name and shame law firms with poor complaints records, the profession’s ombudsman revealed yesterday.

In a move likely to trigger outrage among high-street law firms, the office of the Legal Ombudsman confirmed that it was in discussions with ministers and private websites over how its vast bank of data could be made public.

Kathryn Stone, the chief ombudsman (pictured), said that she had “a duty” to make the data available and that doing so through comparison websites was likely to happen sometime next year.

She acknowledged that the publication of complaints records would be potentially controversial – especially among high-street, consumer-orientated law firms. She maintained that her office was committed to neutrality, saying “we are not there to be consumer champions, but likewise we are not there to support the legal profession”.

The office confirmed that its annual budget was holding steady at about £14.65 million, of which nearly £3 million was ringfenced to deal with complaints concerning claims management companies. Last year the office dealt with some 3,000 CMC cases, compared with about 7,500 complaints about lawyers. The biggest volume of complaints remained issues around residential conveyancing, said Stone, but those involving wills and probate matters were also high.

The ombudsman’s comments came a day after the Law Society, the body that represents solicitors in England and Wales, said that the ombudsman office’s plans to extend its ambit to cover unregulated providers of legal services should not be funded by a levy on its members.

 
 
News Round Up
Government faces judicial review over Green Bank sale

An investment firm in London is launching a legal challenge to the government’s handling of the privatisation of the UK’s environmental specialist bank, it emerged yesterday.

Sustainable Development Capital confirmed to The Times that it had applied to the High Court in London for a judicial review of the plans for selling the Green Investment Bank. The company led a consortium that sponsored a bid for the Edinburgh-based bank (pictured), which was launched in 2012 and has so far invested £2.7 billion in green energy projects.

SDC claims that ministers awarded preferred bidder status to a rival – Macquarie, an Australian investment bank – whose bid, it alleges, was not compliant with the government’s criteria.

The sale of the bank was thrown into doubt in January amid reports that the government could scrap the long-running process and opt for a flotation instead.

The government-owned Green Investment Bank has been on the block since 2015, with Macquarie the most likely buyer and rumoured to be prepared to pay £2 billion. According to SDC, “the fact that no deal was completed within the targeted timetable attests to the fact that the preferred bid was neither deliverable within the time frame nor acceptable”.

A spokesman for the company said that it had raised concerns with government officials since the final phase of the auction in September 2016. “In the absence of a constructive dialogue,” the spokesman said, “we have no alternative but to seek redress through the judicial review process.”

It is understood that the company has instructed banking litigation lawyers at Withers, the City of London law firm.

Anger at refusal to name alleged abuse perpetrators in inquiry

​Lawyers representing former child migrants have expressed their concern that the Independent Inquiry into Child Sexual Abuse is refusing to identify the perpetrators of sexual assaults, including those long since dead, reports Sean O’Neill.

During the first week of evidence hearings at the inquiry, alleged abusers have been referred to by ciphers, to the annoyance of abuse survivors and their legal teams.

Aswini Weereratne, QC, of Doughty Street Chambers in London, for the Child Migrants Trust, said that she was “unhappy with ciphering of the names of alleged abusers” and the redaction of documents. She added: “We say this is an issue of open justice.”

Imran Khan, a solicitor representing a former migrant, said that transparency should be the default position. The founder of Imran Khan & Partners in London told the inquiry chairwoman Alexis Jay – who is not a lawyer – that she may have to hear formal submissions on the issue.

Henrietta Hill, QC, also of Doughty Street and counsel to IICSA on this strand of the huge inquiry, said that it had a duty to act fairly and it was not part of its mandate to determine civil or criminal liability.

Probate fee rise will ‘trigger avoidance gambits’

Lawyers were shocked by the dramatic rise in probate fees announced by ministers on Monday, claiming that the move flew in the face of responses to the government’s own consultation.

Probate fees will rise by up to £20,000 from May under controversial plans described as a “tax on the bereaved” drawn up to bolster the coffers of the courts service.

Ministers want to press ahead with the huge rises involving a sliding scale of charges in place of the current flat-rate fees despite widespread opposition when the plans were outlined last year.

But Elizabeth Young, a partner at the law firm Roythornes, pointed out that some 831 people responded to the question of whether they agreed to the proposal during consultation, with 810 objecting. “It’s disappointing that this 97.5 per cent majority wasn’t compelling enough to encourage modifications of the original proposal,” she said.

Alison Morris, a partner at Wilsons, claimed that the tax authorities were “already seeing record levels of inheritance tax receipts, and these fee hikes are yet another stealth tax on the wealthy families”. She claimed that the “work involved in processing and granting probate doesn’t increase when dealing with large estates”.

James Ward, a partner at Seddons, forecast that the fee increase would “lead to adverse actions taken by the deceased in succession planning. There is likely to be a dramatic increase in assets structured through jointly owned bank accounts and property owned as joint tenants to avoid the fees.”

Current probate fees are £215, or £155 for those applying through a solicitor. On the new scale, estates worth between £1.6 million and £2 million will be charged £12,000, and estates above £2 million will pay £20,000.

Estates worth between £50,000 and £300,000 will pay £300; those between £300,000 and £500,000 will pay £1,000; and those between £500,000 and £1 million will pay £4,000.

Mr Justice Warby to take over specialist defamation court

Trials involving the media will have their own specialist High Court judge under reforms announced yesterday.

Mr Justice Warby, a defamation and privacy specialist, is being put in charge of what will be called the “Media and Communications List”. The judge is currently hearing a libel trial brought by Jack Monroe, the food writer, against Katie Hopkins, the columnist and broadcaster, which will test for the first time the impact of “serious harm” on Twitter.

Warby, 58, will be responsible for cases involving defamation, breaches of data protection laws, malicious falsehood and harassment arising from publication or proposed publication in print, broadcast, online or in a speech. He will look at whether special procedures are needed and consult with the media, lawyers specialising in this work and judges on whether practical reforms are needed.

The post is partly a revival of an old position when there was a High Court judge in charge of the jury trials list – essentially libel trials – who was regarded as the senior media judge.

Warby was appointed to the High Court in 2014 as one of the small group of specialist judges who take defamation and privacy cases. He went to Bristol Grammar School and St John’s College, Oxford and is also a specialist in sports law.

Pia Sarma, editorial legal director at Times Newspapers Ltd, said: “This appointment almost sounds as though the libel courts are modernising. With any luck it might open the door to better case management.”

Intellectual property crisis over smartphone counterfeits

Counterfeit smartphones are swamping the global market accounting for 13 per cent of sales worth £38.7 billion, European intellectual property officials revealed yesterday.

Lost sales in the UK from counterfeiting were estimated at nearly £564 million in 2015, accounting for about 5.7 per cent of revenue lost for the legitimate industry.

According to the figures, about 14 million bogus smartphones were sold in the EU in 2015, equating to more than 8 per cent of all sales in that market and valued at about £3.6 billion.

Other regions were also blighted: more than 21 per cent of sales were lost because of counterfeiting in Africa; 19.6 per cent in Latin America; 15.6 per cent in China; nearly 12 per cent in the rest of the Asia-Pacific region; and 7.6 per cent in North America. China accounts for one third of the total global revenue loss in the smartphone sector.

António Campinos, director of the EU’s intellectual property office, which compiled the figures, said that the loss of sales should “act as a powerful message for policymakers, and all who work to combat counterfeiting worldwide”.

In Brief

Government to appeal judges’ pension ruling -- Law Gazette

Law firms pay cyber crooks who lock their IT systems -- Legal Futures

How the rise of the US elite in London has shaken up the M&A market -- Legal Week

 
Byline
Comment

Human trafficking victims should not be charged with murder Felicity Gerry, QC

Malaysian authorities yesterday charged two women – a Vietnamese and an Indonesian – with murdering Kim Jong-nam, the half-brother of the North Korean leader.

There is speculation that the defendants had been trafficked to Malaysia, which highlights both their potential exploitation and shines a light on a recent ruling in the English Court of Appeal.

Several days before the assassination in Malaysia, judges in London considered conjoined out of time applications from several appellants on the basis that they should never have been prosecuted for drug trafficking because they were victims of human trafficking.

Some were allowed and some were not. The approach was essentially to consider whether, had the full facts been known, there would have been a decision not to prosecute on the basis that it would not have been in the public interest to charge a human trafficking victim who committed the crime.

The successful appeals resulted in quashed convictions. But the court refused to develop the common law on duress, which is disappointing but perhaps not unexpected given the removal by David Cameron’s government of the defence of marital coercion.

The legislative developments under the Modern Slavery Act remain limited to certain offences and do not include victims of domestic abuse or coercion. This leaves human trafficking victims who fall within some of the terms of the UN protocol with little or no protection other than the discretion of the Crown Prosecution Service.

Importantly, the prosecution, responding to these appeals, failed to concede any of the cases, which leaves the issue of how decisions to charge will be made in future. In addition, the court commented on the lack of a system to investigate properly post-conviction.

Many of these cases depended on the appellant’s account which was, at times, rejected in the absence of other evidence. If there is a requirement for other supporting evidence then there should be a system for investigating nationally and transnationally. Not having such a system is a nonsense.

There are other concerns that the UK judgment raises, including the maintenance of draconian sentencing in some of the appeals that were dismissed and a failure to consider gender issues.

And in the context of killing, more importantly the court suggested – and counsel apparently conceded – that there may be some crimes that will always be too serious to engage in human trafficking defences. Since these were drugs cases, the implication is that a human trafficking victim would be denied protection where there was a killing.

This is clearly erroneous. In international law, child soldiers are not prosecuted and “following orders” can be recognised in sentencing so there is no circumstance in which it is inappropriate to consider duress or coercion or even deception in the context of non-prosecution or non-punishment.

For an alleged assassin, these issues are vital and it will be worth watching the level of investigative inquiry in Malaysia over the coming months.

Felicity Gerry, QC, is a criminal law barrister at Carmelite Chambers in London; this is an extract from an article in Criminal Law & Justice Weekly

 
 
 
 
Blue Bag

Legal ombudsman bans tea

All branches and agencies of government are struggling under what seems like never-ending austerity, but the Legal Ombudsman’s office has latched on to the concept with the type of enthusiasm that would make any chancellor of the exchequer happy.

Journalists were summoned yesterday for a briefing session on the vast progress the office has made after reeling from a nasty spat over the previous chief ombudsman’s expenses and the type of technology meltdown that can only happen in Whitehall.

However, slightly embarrassed officials had to mumble to the press corps that refreshments extended only as far as a glass of water. Unfortunately, policy dictates that their munificence could not extend to a teabag or a cup of instant coffee – let alone a Jammie Dodger.

Nonetheless, the water on offer was of the highest quality designer minerals. Good to know that waste has not been completely eliminated from Whitehall.

One too many …

Our piece yesterday running through the potential legal-profession inaccuracies in Denial, the recently released lawyer feelgood film, was bound to be riddled itself with errors.

But one unanticipated error did not involve a point of legal dress or procedure, but something far closer to the Bar’s heart – booze. Unforgivably, we wrote “Scotch whiskey” – and thanks to reader Ian Dodd for pointing out this howler.

Our only excuse is that the Blue Bag writer must have indulged in too many wee drams while bashing away at the keyboard. As any fool knows, whiskey is the drink of Ireland and the US, while whisky is the stuff they get very protective over in Scotland … and Canada.

 
 
The Churn

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

Crowne to retire from top slot at Bar Council

Stephen Crowne is to retire this summer as the administrative boss of the body that represents barristers in England and Wales.

The Bar Council said yesterday that Crowne – who has been chief executive for nearly four years – will stand down by the end of August.

He said the decision to retire was very difficult to take but that “the time is right for me, my family and I hope the Bar Council”. He said that he wanted to give the council “the opportunity to bring in a chief executive with a fresh perspective” as it develops its next three-year strategic plan.

And in law-firm land …

Erol Huseyin has jumped from the transatlantic firm Norton Rose Fulbright to the partnership at Brachers, a commercial law practice in Kent.

North of the border, Greig Cameron reports that the Scottish firm Aberdein Considine has struck a partnership deal with Wilson Nesbitt, a Northern Irish practice with offices in Belfast and Bangor. Aberdein Considine moved into the English and Welsh markets in September last year after acquiring Wallers Solicitors, based in Newcastle. The tie-up with Wilson Nesbitt will allow it to offer debt and asset recovery, litigation and conveyancing across all three UK legal jurisdictions.

Also in Scotland, Fraser Gillies has become the managing partner at the Glasgow firm Wright Johnston & Mackenzie. The renewable energy specialist lawyer is only 39, having joined the law firm as a trainee in 2000 and become a partner in 2010.

 
 
Closing Statement

Judges v juries

Coming to the end of his stint in Victoria, James Morton contrasts the case of Mr Justice Goss, who, after allegations of attempted nobbling, has abandoned a jury trial in Leeds and will complete it sitting alone, with a case in Brisbane earlier this month when Omar Succarieh pleaded to be allowed to have a bench trial on a charge of extortion.

The defendant claimed that since he had been convicted of funding terrorism the pre-trial publicity meant that he was too notorious to get a fair hearing from a jury.

It always used to be said that the best possible tribunal was a fair-minded judge sitting alone. That, of course, would not have included the Cook County judge Frank Wilson who in 1977, for a $10,000 bribe, acquitted the Chicago gangster Harry Aleman of murder.

It all came unglued some 20 years later and the judge committed suicide. Despite arguing that he could not be tried twice for the same offence, Aleman was convicted and died in prison in 2010.

James Morton is a former criminal law solicitor and now author