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Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip. Today - Shiner admits al-Sweady misconduct and awaits striking off
- QC warns of dangers of declaring royal prerogative unlawful
- Doctor sues insurance company for libel over whiplash claim
- King & Wood Mallesons set for pre-pack administration
- Brexit countdown: Future of court not patently obvious
- Lawyers call on Trump to boost human rights efforts
- Comment: Lawyer training needs a shock of the new
- Blue Bag diary: Smelly loos and loaded partners
- More Blue Bag: A study to die for
Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.
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Shiner admits al-Sweady misconduct and awaits striking off
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One of the country’s most prominent human rights lawyers has admitted that he was wrong to accuse the British Army of unlawfully killing and torturing civilians during the last Iraq war, a tribunal heard yesterday. Phil Shiner (pictured) – a Birmingham-based solicitor known as the “scourge of the army” – admitted to 18 charges of professional misconduct over his involvement in the £23 million al-Sweady inquiry into the behaviour of British forces. In a letter delivered to the Solicitors Disciplinary Tribunal on the eve of yesterday’s hearing, Shiner also admitted to making a payment in breach of professional rules of £25,000 to an intermediary to obtain instructions from Iraqi clients. Shiner acknowledged that his career as a lawyer was finished. He said in the letter that he “accepts that this tribunal must strike him off” the roll of solicitors. However, the solicitor – whose firm, Public Interest Lawyers, was forced to close in August after the Legal Aid Agency withdrew its contract to conduct state-funded work – did not admit dishonesty. His lawyer confirmed that he would defend a further five charges. The three-strong tribunal heard that Mr Shiner admitted the charge that at a press conference on February 22, 2008, he recklessly “made and personally endorsed allegations that the British Army had unlawfully killed, tortured and mistreated Iraqi civilians, including his clients”. In addition, Mr Shiner admitted that he “acted without integrity” when he “encouraged and authorised the making of unsolicited direct approaches to potential clients” through four intermediaries, one of whom the Solicitors Regulation Authority referred to as Z. Although Mr Shiner admitted to the lesser charges of acting without integrity and acting recklessly, his lawyer said that he would defend the charges of dishonesty. A full two-week hearing will hear those charges starting on January 30 next year. So far, the solicitors’ regulator, which acts as the prosecuting authority, has spent more than £475,000 on the investigation into Shiner and his firm. For the prosecution, Andrew Tabachnik, a barrister of 39 Essex Chambers in London, asked the tribunal to set a deadline for Shiner to submit his defence regarding the contested allegations. “If he has been able to turn his mind to the charges that he has admitted, then he should be able to turn his mind to the remaining charges,” Tabachnik said. Shiner’s solicitor, Jayne Willetts, of Jayne Willetts & Co in Birmingham, told the tribunal that attempting to force the solicitor to rush his defence threatened to breach his right to a fair trial under Article 6 of the Human Rights Act 1998. Another lawyer from Public Interest Lawyers, John Dickinson, is charged with one allegation of failing to keep the al-Sweady clients properly informed of the progress of the inquiry. He denies the charge. Next March, Leigh Day, a London law firm specialising in human rights, faces 19 charges of professional misconduct around the al-Sweady inquiry. That case is expected to run for seven weeks. |
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QC warns of dangers of declaring royal prerogative unlawful
MPs’ overwhelmingly backed motion requiring the government to trigger Article 50 had political importance, the Supreme Court justices were told yesterday. In his closing arguments in the historic Brexit challenge, James Eadie, QC, told the court: “No doubt it is not legally binding but that does not mean it is not legally relevant. It is politically significant. The House of Commons has given specific approval to give that notice [Article 50 to trigger Brexit] and called on it to do so by a particular date.” MPs on Wednesday night voted overwhelmingly in favour of the government's timetable to trigger Article 50 by March 31 next year. However, the QC told the crowded courtroom on the last day of the landmark appeal that if he loses his argument that ministers can trigger Brexit by using prerogative powers, there would have to be an act of parliament. “If you declare the use of the prerogative unlawful … you are in effect requiring primary legislation,” he told the justices. Eadie was summing up at the end of the four-day hearing in which he seeks on behalf of ministers to overturn a High Court ruling that parliamentary approval is needed to trigger the process of leaving the EU.
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Doctor sues insurance company for libel over whiplash claim
A medico-legal expert is to sue the PR department at one of Europe’s biggest insurance companies for defamation after it allegedly accused her of being “found guilty of exaggerating medical evidence” in motoring accident claims. Grace Kerali, a GP who has provided evidence in thousands of whiplash cases emanating from road accidents, said yesterday that she had sent a letter of claim to the UK branch of Ageas, a multinational insurance business based in Belgium. The action comes after Ageas and its law firm BLM highlighted a trial at Liverpool county court last month that collapsed with the agreement of both parties. The judge made a costs order against Kerali for £40,000, with Ageas making a claim for £100,000. At the time the insurance company alleged that its investigations had found that Kerali had exaggerated evidence of whiplash in as many as 1,000 cases. Kerali adamantly denied that and her lawyer pointed out that there was no court ruling to that effect. Yesterday, her legal team – the barrister Mark Engelman of Hardwicke Chambers in Lincoln’s Inn and the solicitor Sandra Campbell of the London law firm Campbell & Co – said that Kerali “has never been on trial to answer this or any other allegations about her work. She had not been the subject of any judicial criticism nor any other judicial finding. On the contrary her evidence and methodology was supported by a leading surgeon.” Kerali’s lawyers said the word “guilty” was “a highly emotive and damaging word, as well as being wholly inaccurate, and is especially harmful to doctors, who live and work by their reputation”. Ageas declined to comment.
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King & Wood Mallesons set for pre-pack administration
King & Wood Malleson’s London office is headed for a pre-pack administration, it was reported yesterday, as the saga surrounding the European branch of the international firm approached climax. According to the website Legal Week, negotiations were “at an advanced stage” and an announcement of an administration process was expected by the end of next week. The site said that the identity of the buyer was unclear, but several candidates had been in the rumour mill frame. Speculation suggested that Dentons was a front-runner, with the Asian arm of KWM – which is a Sino-Australian firm – also getting a mention. Suggestions that an administration deal looms came after it emerged that the London office, formerly the City of London law firm SJ Berwin, recently cut a revised deal with its bank. The debenture agreement is understood to stipulate that Barclays would take control if the firm appointed an administrator.
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Lawyers call on Trump to boost human rights efforts
International human rights lawyers have challenged Donald Trump over his country’s “retreat from the rights and freedoms enshrined in the 1776 US Declaration of Independence and 1791 US Bill of Rights”. In an open letter to the president-elect, the human rights institute of the International Bar Association has called on Trump to “reassert the US as a leading model for championing individual liberty and human rights”. The lawyers cite a list of concerns over the country’s human rights involvement, led by its failure to ratify the treaty that established the International Criminal Court. “Nearly two-thirds of the nations of the world are parties to this statute, including almost all of the United States’ NATO allies,” reads the letter. It highlights allegations around torture and rendition, saying that “the lack of transparency by the US government, such as expressly opposing the right of the public to view footage of atrocities in Guantanamo Bay, and denying the occurrence of instances of rendition, runs counter to the international obligations the United States has publicly undertaken to uphold”. The lawyers also criticise the US for having the “fifth highest rate of executions in the world”. And the letter focuses on the US non-ratification of “the most widely ratified treaty in history”, the UN’s Convention on the Rights of the Child.
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Brexit countdown – legal update as leave approaches
Future of unified court is not patently obvious Now that the Supreme Court hearings on who gets to pull the Article 50 trigger on Brexit have concluded, lawyers can turn back to the day-to-day reality of Britain still being a member of the EU and continuing to be so for at least another couple of years. However, it is a half-in, half out kind of existence and those on the other side of the channel remain uncertain about how the UK government is going to act from one week to the next. For example, as Sally Shorthose, a partner at Bird & Bird, explained, there was a degree of surprise from industry and intellectual property practitioners that – against a background of suggestions of a “hard Brexit” – the government had acceded to the request from other participating states to confirm, by the end of last month, that the UK would press ahead with the ratification of the Unified Patent Court agreement. A bit previous To some extent, the positive announcement could have been seen as somewhat peremptory against the backdrop of the prevailing “hard Brexit” messages given publicly by ministers, including Theresa May, Shorthose argued. “Industry and IP organisations had been concerned that such a move would not necessarily be advisable at this stage,” she said, “given the possibility that IP owners could be faced with a period of uncertainty regarding the effect of the Unified Patent Court launch followed in due course by Brexit.” What complicates matter further, the lawyer claimed, was that Dominic Raab, the Tory MP, stated categorically on the Radio 4 Today programme yesterday that some things were “simply not open for negotiation”. For example, the UK would no longer be bound by the supremacy of the European courts. “This unequivocal statement is rather inconsistent with the government's announcement regarding the ratification of the UPCA, as one of the premises for being part of the UPC is that participation member states submit to the supremacy of the ECJ for all patent matters,” Shorthose said. “There is a real desire for certainty from all those affected, yet clarity doesn’t yet seem forthcoming.” In or out? The problem is that it would seem that non-EU states – as the UK is likely to be, say, in three years’ time – will not be allowed to participate in the UPC. So the question arises: why ratify the agreement when the UK will be excluded from it in the foreseeable future, thereby leading to the expensive unpicking of new rights obtained or litigation commenced? However, Shorthose pointed out, the basic assumption that the UK would be kicked out of the court might be wrong. “It is safe to assume that some political comfort must have been obtained from other member states, prior to its giving the green light to ratification, that the UK can remain part of the system after Brexit,” she said. “This will have become possible since – whilst the UPC is being established by the EU – the court itself is not technically an EU institution and discussions independent of the main Brexit negotiations can take place.” With the UK government’s support, preparations such as establishing the rules and appointment and training of judges will now go ahead. “Time will tell whether, if and when Brexit occurs, the UK and the remaining member states are indeed able to agree on an alternative solution to the UK being part of the new system, whilst not being part of the EU,” Shorthose said. “Maybe, because patent rights are never going to make front page news, pragmatic arrangements will be made quietly in the background.”
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In Brief
HSBC has biggest legal team in FTSE 100 – The Lawyer ‘Friday afternoon’ fraud cost profession at least £7m in past year, says SRA – Legal Futures Regulator ‘pushing open door’ over civil standard of proof – Solicitors Journal
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Smelly loos and loaded partners – young lawyer whinges
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Untidy lavatories and wealthy, but mean, equity partners are among many complaints hurled at the City of London’s top law firms, as revealed by one of the profession’s tail-biting websites. The Square Mile’s five strong “magic circle” elite stand accused of a range of poor behaviour, but two complaints leap out from the Roll on Friday’s “firm of the year 2017” survey of junior lawyers. One unnamed associate at Slaughter and May, arguably the City’s most pukka of old-school tie practices, told the website: “There is serious upset among associates that the highest earning partners in the country won’t even match silver circle salaries. The firm has a lot to do if it doesn’t want to see significant exits in January.” At the other end of the spectrum, there is also a whiff of discontent at Freshfields Bruckhaus Deringer, the Anglo-German magic circle player. An associate solicitor told RoF that ladies’ loos are in an “appalling state” with “signs up warning that if habits don't improve, the firm will start monitoring and tracking usage to name and shame the worst offenders”. And despite being young and presumably used to open-plan offices, City associates seem to hanker for the halcyon days of individual offices. A CMS Cameron McKenna junior tells the site: “Some clown in management thought it was a good money-saving idea to go open plan, but the truth is it’s just a shit way for lawyers to work – everyone hates it, but no one speaks up for fear of being seen to be anti-social.”
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A study to die for
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Here’s an area of legal research that has not had much air time so far – necrophilia. It is a topic preoccupying Jason Roach, a criminologist at the University of Huddersfield, who has made the British contribution to a landmark study, “Understanding necrophilia: a global interdisciplinary approach”. In his contribution, Roach muses on the paradox that while necrophilia as a crime appears to be almost non-existent in Britain, a high proportion of people understand the meaning of the term. This cannot be attributed to the media, Roach says, because the subject is rarely reported. His hypothesis is that the attitude of the British criminal justice system towards necrophilia echoes that of the British public – one of embarrassment, whereby those caught are either not charged with a criminal offence or, perhaps for the sake of the deceased’s family, are charged with a less degrading offence such as grave robbing. “Both routes will produce less attention-grabbing stories,” Roach says. Perhaps now the book has been published, there will be a rush of necrophilia charges.
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“As I said in court, there was a universal expectation that the referendum result would be honoured. Parliament will be closely involved in the process of the UK’s withdrawal from the EU over the coming months and years … We have argued that the government can use the powers it has to enact what the public has decided. The judges will now decide if they agree.”
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Jeremy Wright, QC, the attorney-general, speaking at the end of the last day of the landmark Supreme Court hearing on the issue of whether ministers or MPs will pull the trigger that takes the UK out of the EU.
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