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The Times

Tuesday, July 5 2016

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

Today

  • 1,000 to back court challenge to Brexit process
  • Bid to overturn “unfair” civil partnership settlement
  • Harsh warning to junior bankers after three Libor convictions
  • Supreme Court hears more cases in fewer days
  • Call for prosecution clarity over joint enterprise
  • MP joins Gambaccini and Sir Cliff in anonymity campaign
  • Comment: barristers aren’t being let off the learning hook
  • The Churn: A wee dram for O’Donnell
  • Blue Bag diary: law student encourages “Brexiles”

Tweet us @TimesLaw with your views.

 
Story of the Day

1,000 to back court challenge to Brexit process

More than 1,000 people are ready to back a legal challenge to ensure that parliament must vote before the government formally triggers the exit procedure from the EU.

The challenge is expected to take place in the High Court in September to ensure that MPs have their say before Downing Street invokes Article 50 of the Lisbon treaty, which formally sets withdrawal in train.

A core group of about ten leading businessmen and other individuals have already instructed the law firm Mishcon de Reya – best known for acting for the late Princess Diana in her divorce – to start proceedings.

Since the legal action was announced on Sunday it is understand that the law firm has been flooded with 1,000 emails of support. And it is understood that at least one more leading law firm could be instructed to join the action.

Representative group

Mishcon de Reya will select a representative group from across business, academia, the health service and the devolved regions of Scotland and Northern Ireland to take the legal action forward.

However expert opinion is divided over whether parliament’s approval is needed, as the leading constitutional law peer Lord Pannick, who will argue the challenge, wrote last week in The Times. If the courts declare that it is, then there is a possibility that Brexit may not take place, as a majority of parliament does not support it.

The Brief understands that the claimants will specifically challenge the prime minister’s statements on June 24 and 27 that he has the power to give notice under Article 50, in the absence of an act of parliament conferring that authority, and that the government intends to give such notice. It will also seek a declaration as to the law – namely that a decision to notify the European Council requires the authorisation of an act of parliament.

The Mishcon legal team has written to the Government Legal Service asking if a timetable can be agreed for legal proceedings and it is expected that the challenge will be heard in September, after a new prime minister has been installed. The firm has made clear that it is not seeking to ignore or overturn the views expressed in the referendum but to ensure correct procedure is followed.

More lawyers

At least one other City of London law firm told The Times that it was interested in taking similar legal action.

A partner at Taylor Wessing, an Anglo-German law firm in the Square Mile, said that the firm had “looked at the issue” and that there were “parties who are potentially interested in intervening in support of the action brought by Mishcon”.

Martin Howe, QC, of 8 New Square chambers in Lincoln’s Inn and chairman of the pro-Leave Lawyers for Britain group, described the Mishcon challenge as “devoid of all legal merit”. He told The Brief: “As a matter of law, giving notification under Article 50 of the treaty on European Union is a matter of Crown prerogative. No act or other parliamentary approval is required before this is done.”

Howe claimed that with the European Union Act 2011; “Parliament has chosen to require parliamentary approval before ministers are allowed to take certain actions under the European treaties but notably has not extended any such restrictions to Article 50. Any argument that there is an implied restriction is therefore quite hopeless.”

And yet more lawyers …

Meanwhile, a letter calling for a free vote in the House of Commons on whether Article 50 should be triggered has garnered signatures from about 1,000 barristers and judges and will be presented to the prime minister later this week.

About 120 senior barristers and judges gathered late last week in Gray's Inn for a meeting organised by Philip Kolvin, QC, of Cornerstone Barristers.

According to sources, at the meeting it was agreed that the referendum result in favour of the UK leaving the EU should be acknowledged in principle. However the lawyers concurred that Article 50 could only be triggered by an act of parliament. “The political debate must take account of the law,” said one barrister who attended the meeting.

 
 
News Round Up
• Three Libor convictions send harsh warning to junior bankers

The three Libor convictions send the harshest of warnings to junior bankers, a leading white collar crime lawyer has claimed after the former Barclays bankers were found guilty of fraud.

Jonathan James Mathew, 35, Jay Vijay Merchant, 45, and Alex Pabon, 37, were found guilty at Southwark crown court in London last week of manipulating the US dollar London Interbank Offered Rate between 2005 and 2007. The verdicts were only released yesterday after a three-month trial and the defendants were not in court when reporting restrictions were lifted.

David Corker, a partner at the London law firm Corker Binning, said that the convictions “strike the harshest of warnings for those operating at relatively junior levels in financial markets and in other fields of commercial life, where the way in which business is routinely done may sometimes, years later, be characterised as criminal by those with 20/20 hindsight and a massive banking crisis for which politicians wanted to find someone to blame”.

Corker added that the conduct of the three was “widely condoned or encouraged at the time in a broken, poorly regulated system and these defendants were foot soldiers for the most part in a global financial system beyond their full understanding”.

Ruth Harris, a partner at the London law firm Hodge Jones & Allen, said: “It will be interesting to see how the Serious Fraud Office proceeds from here and whether it will continue to expand its investigation or will be satisfied with the convictions as reflecting the state of criminality in this area."

• Woman aims to overturn “unfair” civil partnership settlement

A woman who accepted £162,000 when her civil partnership broke up will today ask appeal judges to set aside that “unfair” settlement, claiming she has discovered her late partner had £6 million in hidden assets.

Helen Roocroft, from Bolton, had an 18-year relationship with Carol Ann Ainscow, a property mogul, before they separated in 2009. Ainscow, whose property company Artisan, transformed flats, bars and restaurants on Canal Street in Manchester, died aged 55 from a brain tumour in 2013.

During dissolution proceedings, Ainscow submitted documents to court suggesting her wealth had been reduced significantly following the property crash brought about by the 2008 recession.

This led Roocroft, who was unable to claim legal aid and had to represent herself during parts of the proceedings, to accept a £162,000 settlement in 2010.
However after Ainscow’s death, Roocroft discovered information that led her to believe that her former civil partner had not been truthful about the full extent of her assets and income to the courts.

The 41-year-old instructed family lawyers at Irwin Mitchell to seek to overturn the original agreement made with Ainscow so that a new agreement could be negotiated with the estate based on an “honest assessment of their assets”.

The High Court concluded that her application had no merit and dismissed the claim at a hearing in June 2014, with judgment given in July that year. Roocroft secured permission in January last year to appeal that decision.

Today’s appeal is the latest in a series of challenges over allegations of what courts refer to as “material non-disclosure”. Last year Varsha Gohil and Alison Sharland challenged their divorce settlements at the Supreme Court after their former husbands were found to have misled them significantly regarding their wealth.

• Supreme Court hears more cases in fewer days

Britain’s highest court improved its efficiency last year, hearing more cases in fewer days, its annual report published yesterday revealed.

Supreme Court justices heard 92 appeals last year, three more than in the previous year, while sitting for significantly fewer days. The court sat for 136 days in 2014-15 – 32 more than in the previous 12 months. However the court delivered exactly the same number of judgments (81) in both years.

The report showed that the court has continued to sit more often as a panel of more than five justices, which it does when asked to depart from a previous decision of the Supreme Court or the House of Lords, or when a case raises an issue of particularly high constitutional or public importance.

The court sat as a panel of seven or nine justices in 14 per cent of appeals during 2015-16, a 2 per cent increase on the previous year and well up on the 9 per cent in 2013/14.

Supreme Court justices were also asked to deal with a growing number of urgent cases. The report listed appeals where the parties formally requested expedition but the number of cases highlighted as having been dealt with within a matter of weeks from initial application to full judgment rose from three in 2014-15 to nine a year later.

• Call for prosecution clarity over joint enterprise

Prosecution of joint enterprise cases needs to be clearer in light of a recent Supreme Court ruling, an expert report claims today.

Allegations of joint enterprise crimes should be routinely monitored and recorded – and the term itself replaced as it is seen as toxic, said researchers from the Institute for Criminal Policy Research of Birkbeck, University of London, who wrote the report with the Prison Reform Trust.

The recommendations come after a landmark Supreme Court judgment ruled that the law had taken a wrong turn 30 years ago regarding joint enterprise, and that it required correction. The Court of Appeal is considering several test challenges which could have implications for hundreds of people in prison convicted under joint enterprise.

According to the report, although the ruling went some way towards simplifying the law, the way in which different types of liability under joint enterprise are applied in serious cases remains “complex in terms of both legal doctrine and practical effect”.

In addition to routine recording and monitoring of cases, the report calls for improved Sentencing Council guidance for judges dealing with multi-defendant cases.

• MP joins Gambaccini and Sir Cliff in anonymity campaign

A Conservative MP has joined forces with Sir Cliff Richard in a bid to change the law to protect the anonymity of those accused of sexual assault and rape.

Nigel Evans, a former deputy speaker in the House of Commons and the MP for Ribble Valley, was unanimously found not guilty of nine sexual allegations, including one of rape, following a five-week trial in 2014.

It is understood that Evans spoke to the pop star last weekend at a meeting that also involved Paul Gambaccini, the BBC radio DJ. Police dropped an investigation into allegations of sexual assault against Gambaccini a year after he was arrested.

The three were reported to have discussed plans to launch a victim support group for those wrongly accused of sexual assault. They are also understood to be aiming to campaign for anonymity for sexual assault defendants before they are charged.

Sir Cliff was publicly named two years ago as a suspect in a sex abuse investigation into historical allegations. The investigation was dropped last month.

• In Brief

Linklaters leadership shuffle – Legal Business

High Court overturns trio of cost judge rulings – Litigation Futures

Westminster prof named law teacher of the year – Legal Cheek

 
Byline
Comment

Barristers aren’t being let off the learning hook Oliver Hanmer

A commitment to learning and development is an essential aspect of any profession. Barristers are no exception and a new professional development regime will be in place from the beginning of next year for those qualified in England and Wales.

Members of the public who need the services of a barrister have a right to expect that their lawyer is fully up to date with the area of law required and that their skills are honed and refreshed.

Undertaking relevant and appropriate professional development is a vital way for all lawyers to demonstrate to clients a commitment to continuous learning. The Bar Standards Board (BSB) is fully committed to this principle – continuing professional development (CPD) is one of its most important regulatory tools.

That is why the board has devoted so much time to reforming its CPD scheme. Barristers must not think of CPD as a mere box ticking exercise. The regulator wants them to think carefully about learning and professional development needs. It wants to give them flexibility to undertake the right CPD for them; it is recognised that one size does not fit all, and that even the number of hours of CPD that barristers must undertake will vary.

The reasons for this are clear: all barristers are different and some will require more CPD than others. Therefore, the emphasis of the BSB’s updated scheme is to provide more flexibility.

It will mean that established barristers will be free to plan their own CPD activities, will have greater flexibility in the types of CPD activities they undertake, will not be subject to any compulsory or accredited activities, will not be subject to a minimum number of hours and will no longer need to apply for an extension of time or a waiver from CPD requirements.

It is expected that this change and the increased freedom it gives barristers will encourage innovation and competition among course providers of CPD, although that was not the primary object of the reforms.

Also, and importantly, barristers’ CPD will continue to be supervised. While the new regime will provide greater flexibility regarding the type and amount of CPD activities, it does not mean that barristers can completely avoid CPD.

Far from it; the BSB will continue to supervise barristers’ CPD, and persistent and deliberate non-compliance will result in enforcement action.

To help barristers prepare for the arrangements, the regulator is planning a series of events around the country later in the year. Details of these events will be published soon.

Oliver Hanmer is director of supervision at the Bar Standards Board, the regulator of barristers in England and Wales

 
 
Tweet of the Day

Anyone else starting to think there's a new, cooler politics going on somewhere else that we haven't been told about? #Resignations #Brexit

Harriet Johnson @HarrietEJohnson

 
 
Blue Bag

Law student encourages “Brexiles”

Ah … the innocence of youth – its naivety even effects aspiring barristers, as Tom Phillips demonstrates with his contribution to the post-EU referendum debate.

Phillips, who has just completed a graduate diploma in law at City University in London after reading PPE at Oxford, was so traumatised by Britain’s masses plumping for Leave that the next day he launched Brexiles. It is a website for young people keen to emigrate now that Blighty has been taken over by myopic little Englanders with no world view.

“I didn’t (and still don’t) want to be a part of an isolated and isolationist UK,” explains the feisty law student on the site. “Talking to my friends, I realised others felt the same way.”

The site is meant to provide nuts and bolts quasi-legal and practical advice to generation Z, Q or whichever letter is in vogue, detailing how to become a citizen of an alternative EU state – or that of an even farther flung country.

Still in its infancy, the site so far only covers Germany, the Republic of Ireland, France, Canada and Australia. But there are doubts over just how useful it is.

As a commentator on the acerbic website for law students, Legal Cheek, points out, a taster of the insightful advice Brexiles provides on Ireland runs like this: “It’s a republic, meaning they have no royal family. The president is Michael Higgins but beyond that we can’t tell you very much yet.”

Sit back and admire the honesty. The site also mentions that Ireland is a very Catholic country, adding: “On the plus side, we note that the Irish have lovely accents. They also appear to enjoy a pint or two down the local …”

Mansfield’s latest drama

Michael Mansfield, QC, has seen his fair share of courtroom dramas – acting for Barry George, who was accused of killing the television presenter Jill Dando, the family of murdered teenager Stephen Lawrence and in the Bloody Sunday Inquiry – but now he is entering the world of real greasepaint.

Mansfield – who launched a “low cost” set of chambers after his Tooks Court went bust in 2013 – has joined the board of Liverpool Everyman and Playhouse ahead of becoming chairman of the theatres later in the year.

The board representing the theatres points out that Mansfield has had a long association with those who tread the boards, having helped to establish Jacksons Lane in north London and being a founder member of a theatre in the north east. The silk also collaborated closely with Nicholas Kent when he was at the Tricycle Theatre in Kilburn.

“I have a longstanding passion for and association with theatre,” Mansfield said. “I regularly attend performances and have many friends amongst the acting fraternity. I have developed a huge affinity with Liverpool over the years and I am delighted to be able to twin this with my passion for theatre.”

 
 
The Churn

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

• A wee dram for O’Donnell

Caitlin O’Donnell has landed what many will see as one of the best jobs in law as she joins the legal team at the Scotch Whisky Association.

She jumps to the smoky, woody, peaty brigade from Maclay Murray & Spens, arguably the last big solely Scottish firm north of the border.

Her team is led by Alan Park, who was promoted to director of legal affairs in May when Magnus Cormack left the organisation after 33 years. The association left O’Donnell in no doubt about her primary task: “The team’s core function is protecting Scotch whisky from unfair competition.”

Meanwhile, Taylor Wessing, the Anglo-German law firm based in London, has cut a deal for a joint venture office in Vietnam.

RHTLaw Taylor Wessing Vietnam will bring together a local firm, PBC Partners, and the English firm’s Singapore branch. The deal now gives Taylor Wessing a presence in both Ho Chi Minh City and Hanoi.

 
 
Closing Statement

Justice and the falling heavens

Falling ceilings in courtrooms have triggered judicial wit in more than one case, warns Gary Slapper from his position atop a stepladder.

Mr Justice Chitty was once presiding in a case when a piece of plaster fell from the courtroom ceiling. Without pausing, he continued unperturbed, diverting only to quote the classical precept: “Fiat justitia, ruat coelom.” (Let justice be done though the heavens fall.) He then came to his conclusion in the case.

Similarly, in Australia, Chief Justice Holroyd was once listening to a long and unimpressive argument when a chunk of ceiling fell to the floor. The barrister paused, startled, and said: “I think that is just the result of dry rot, my lord.”

The judge replied with studied agreement: “I am quite of your opinion, sir.”

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