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The Times

Friday, August 26 2016

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


  • European migrants rush to UK to beat ‘closing door’
  • Stamp duty reform triggers boom for conveyancing lawyers
  • Publishing average legal costs ‘would be meaningless’
  • Freshfields v Quinn in Britain’s biggest class action suit
  • High court judge slapped on wrist over delay
  • Scottish judge lambasts May asylum decision
  • Abuse inquiry seeks victims’ views on compensation
  • Comment: Bullying epidemic threatens UK workforce’s sanity
  • The Churn: Judge Lucraft to be next chief coroner
  • Blue Bag diary: Shocker for media luvvie lawyers

Tweet us @TimesLaw with your views.

Story of the Day

European migrants rush to UK to beat ‘closing door’

EU citizens are rushing to Britain in advance of the government “closing the door” once the process of leaving the bloc has been triggered, immigration law experts said yesterday.

Commenting in the wake of the latest quarterly figures on migration to the UK from the Office of National Statistics, lawyers said that both individuals and businesses feared that tighter immigration rules were imminent. The latest figures showed that net annual migration was holding firm at around 327,000, with EU migration forming 180,000 of that total.

“The government's plans to seek curbs on free movement rules is a worrying one for many, as industries like engineering, IT, construction and hospitality rely heavily on skills from outside the UK,” said Jonathan Beech, managing director of Migrate UK, an immigration law specialist practice in Oxfordshire.

“For particular sectors and skills, the government will have to seriously consider free movement to some extent”, predicted Beech, “in exchange for diminished access to the EU’s single market, or face the prospect of these industries in the UK, declining or relocating.”

Beech said EU citizens currently working or studying in the UK are classified as “qualified persons”; advice to them is to apply for a registration certificate to prove their right to live or to work in the UK. Qualified persons who have been in the UK for at least five years – or three years in the case of British citizens’ spouses – can apply for permanent residency and, 12 months after, British nationality.

“With the home affairs committee warning of possible fresh delays and backlogs in the immigration system as more people enter the UK and no date as yet set on changes to the immigration rules”, said Beech, “we're advising organisations with EU workers, and citizens themselves, not to delay their applications."

News Round Up
Stamp duty reform triggers boom for conveyancing lawyers

Solicitors specialising in residential property transactions were some of the queasiest on June 24 as the EU referendum result rolled in, convinced as they were that Brexit would trigger a housing market crash.

But figures released this week suggest the crash has yet to materialise and that whatever Brexit means, other factors are keeping the residential conveyancing market booming.

Conveyancing transactions rose by a healthy 24 per cent in the second quarter of this year, according to a report from Search Acumen, which monitors the sector. Researchers attributed the rise to reforms to stamp duty and land tax. From the beginning of April, the government levied a stamp duty surcharge on second homes, a move that appears to have triggered a rush to buy before the deadline.

Whatever is causing the boom, conveyancing law firms are benefiting, say the researchers. Firms at the top of the market completed more than 3,500 transactions during the quarter. That was a rise of 17 per cent over the first quarter of this year. More impressively, the most recent transaction rate was more than 40 per cent above last year’s second-quarter rate.

The report pointed to a slight rise over the last year in the number of solicitors’ practices offering residential conveyancing services – up from 4,177 to 4,281.

Publishing average legal costs ‘would be meaningless’

Law firms must not be forced into a “meaningless exercise” of having to publish the average cost of their services, the solicitors’ professional body says.

The Law Society of England and Wales has rejected proposals that the profession’s regulator should step in to force them to disclose their costs. Instead, it says that market solutions are a better tool to improve competition and ensure clients can make informed choices when purchasing legal services.

The comments come in response to the Legal Services Consumer Panel, the body set up by the profession’s umbrella regulator, the Legal Services Board, which argues that regulatory intervention is needed to ensure information about average fees is published.

Both the panel and the Competition and Markets Authority are backing regulatory changes to force firms to reveal more information about their fees and quality of service. But Catherine Dixon, the Law Society’s chief executive, criticised the proposals as being “misconceived”. Dixon said “a narrow focus on price – especially average price, which could be particularly misleading – is potentially damaging to clients’ ability to make informed choices.”

The society maintains that publishing average prices in areas of work where there are multiple variables affecting the costs “would be confusing and in many cases meaningless”. According to Dixon, the society agreed that “the market will benefit from the provision of more useful information on both price and service quality. This should include clarity about the protections available to the clients of regulated firms that are not available to those who engage unregulated providers.

“We are confident that the legal services market, which is very competitive, will deliver ever more beneficial and durable improvements than further regulation, which would also create the risk of unintended consequences.”

In a separate response earlier this month to the CMA’s interim report on the legal services market, the society says it supports the objective of ensuring useful information is provided for consumers – but “we believe that market-driven solutions can and will plug the transparency of information gap”.

High court judge slapped on wrist over delay

The wheels of justice grind notoriously slowly but some delays are too much even by the standards of the judicial system.

A high court judge has been censured by the lord chief justice and lord chancellor for delaying giving a judgment. No details have been given but it is likely that the delay by Mr Justice Timothy King will have run to several months and possibly up to a year.

The Judicial Conduct Investigations Office said that heads of the judiciary had concluded after an investigation that the judge’s behaviour had fallen “below the standards expected of a member of the judiciary”. A spokesman said in a statement that the judge had been issued with a reprimand. The statement gave no detail about the case.

The judge is a repeat offender when it comes to slowness in giving judgment: in 2013 he was given a similar reprimand by the judicial complaints office, which – after an investigation – found “unacceptable delay” in handing down a judgment.

Mr Justice King was appointed a high court judge in the Queen’s Bench Division, succeeding Mr Justice Toulson, who became chairman of the Law Commission, in 2006. He was previously a member of Byrom Street Chambers, in Manchester.

Freshfields v Quinn in Britain’s biggest class action suit

Britain’s biggest ever US-style class action lawsuit will pit one of London’s magic circle law firms against a thrusting litigation specialist upstart from California.

MasterCard, the international credit card company, is understood to be instructing Freshfields Bruckhaus Deringer to defend one of the first claims brought under the Consumer Rights Act 2015.

The claim is being fronted by Walter Merricks, the former chief financial services ombudsman, who represents a class of UK consumers that alleges to have suffered loss when MasterCard was found to have infringed EU law by imposing excessive charges on the use of its debit and credit cards.

Acting for the claimants is the London office of Quinn Emanuel Urquhart & Sullivan, the Los Angeles law firm that has shaken up the Square Mile litigation scene.

The Lawyer magazine reported that despite having a history of instructing another US firm in London – Jones Day – MasterCard had passed the defence in the class action to Jon Lawrence, a competition law partner at Freshfields. According to the magazine, the move followed a tender process earlier this month.

The development came a day after the magazine revealed that Quinn Emanuel had “overshot” the value of the claim by £5 billion. The claim is now understood to be valued at £14 billion.

Scottish judge lambasts May asylum decision

Theresa May, the still relatively new prime minister, might hope to bask a bit longer in a honeymoon glow at Downing Street – but a senior judge in Scotland reckons it’s time to remove the kid gloves.

Lord Boyd of Duncansby, a former lord advocate – Scotland’s attorney general – has lambasted the former home secretary for having “acted unreasonably” in dismissing an application for asylum from a Sri Lankan exile.

It is claimed that the unnamed Tamil dissident was in danger of being tortured if returned to Sri Lanka. The Herald newspaper reported that Boyd, now sitting as a judge hearing a judicial review of the case, said May had been “too ready to dismiss” evidence relating to the threat the asylum seeker allegedly faced in Sri Lanka.

According to the newspaper, the judge said: “If taken together at face value, in my opinion, there was evidence from which the secretary of state could conclude that there is a realistic prospect of success before an immigration judge.”

Abuse inquiry seeks victims’ views on compensation

The Independent Inquiry into child sexual abuse is seeking views on the effectiveness of the criminal compensation and the civil justice systems for victims and survivors of child sexual abuse in England and Wales.

It has published two consultation papers seeking views from individuals and organisations by the end of September.

The move comes after the embarrassing abrupt resignation earlier this month of Dame Lowell Goddard, a New Zealand judge – the third person to step down after being appointed to chair the inquiry.

Her departure came on the day that The Times reported that she had "spent three months on holiday or abroad during her first year in the job", while receiving a pay and benefits package worth £500,000. Professor Alexis Jay, a child protection expert who was a member of the inquiry panel, has been appointed to take her place.

The consultation papers are part of the inquiry’s investigation into accountability and reparation. They consider the extent to which existing support services and legal processes effectively deliver just outcomes to victims and survivors of child sexual abuse where there has been an institutional failure. The closing date is September 29.

In Brief

Solicitor agrees settlement over abusive language – Law Gazette

Schillings tells lawyers to “come in two days a week” in agile working push – The Lawyer

Mozilla seeks changes to EU copyright law – The Inquirer

New law to stop Britons using India 'baby factories' – London Evening Standard

Five women on how to climb the ‘big law’ ladder – Bloomberg


Bullying epidemic threatens UK workforce’s sanity Karen Jackson

An epidemic of common mental health conditions in the workforce currently poses a bigger threat to the UK economy’s bottom line than terrorism. That isn’t claimant lawyer scaremongering, but the objective view of the Confederation of British Industry.

Instances of mental ill health have soared to become the leading cause of sickness absence from work and employers must take responsibility for unacceptable workplace behaviour causing common conditions such as burnout, depression and anxiety.

Talking about mental health at work and addressing stigma is simply not enough. Employers must actually do something about addressing the causes.

Bullying is rife in the workplace and is a leading cause of mental breakdown. Let’s be clear – bullying is not only about openly undermining and humiliating staff, it is much subtler: ignoring and excluding people, constantly picking them up on their work and placing unreasonable demands.

Implied threats about improving performance or being pushed out add pressure that causes stress. Seeing others go off with stress and never returning forces people into silently suffering and going that same route without any chance of assistance from employers.

Unfortunately for many businesses, especially in the City of London, bullying attitudes are deeply ingrained in work cultures.

Bullying can have devastating consequences – in 2008 and 2009, 35 France Telecom workers committed suicide, resulting in unions accusing the business’s former chief executive, Didier Lombard, of creating an intolerable work environment. Last month, French prosecutors called for Lombard to be tried for workplace harassment in what would be a landmark action. Lombard’s legal team maintain there is no evidence to support the charge.

A general irony is that bullied staff are told to report harassment to their managers. But for the most part it is managers who are the issue. People have nowhere to go. If they do report, they are branded as whingers or trouble-makers and their careers turn south.

Human resource departments generally function to protect their businesses not employees – and more often than not HR will tell complainants to shut up and get on with their work if they want to keep their jobs. People suffer in silence, break down, leave and never return. The loss of high-level talent is phenomenal. And the impact of mental breakdown on careers and lives is devastating.

Managers should be accountable for the mental wellbeing of their people. Questions about mental wellbeing and stress levels should be an integral part of the appraisal system.

Managers should be rated and downgraded on how many people in their teams take sick leave because of stress. Employers should make promotion decisions around management behaviour, not just skills. It is fairly easy to spot the people who are at risk and the managers who are most toxic.

A positive move is to take the pulse of an organisation by doing an anonymous survey of the workforce to assess stress levels. Quite aside from the moral and human arguments, there are sound business reasons to address this issue.

Karen Jackson is the founding director of Didlaw, a law firm in London specialising in employment disability discrimination claims

Tweet of the Day

Another murder of another British National in Pakistan. Rule of law must prevail #JusticeForFahad @sayedzbukhari

Sayeeda Warsi @SayeedaWarsi

Blue Bag

Heat triggers red faces at Ministry of Justice

Perhaps it was this week’s stifling heat in London that caused the attorney general’s office to go into meltdown, but the release of this year’s statistics on unduly lenient sentences triggered a flustered outbreak of red faces.

Everyone who has ever struggled with a spreadsheet will sympathise with the civil servants working for Jeremy Wright, QC, as they battled to get their figures right after the first announcement was rapidly withdrawn. Londoners sunning themselves in SW1 could have heard the frantic number crunching and re-crunching that resulted.

In the end came this unusually humble statement from the AG’s office: “We are very sorry for putting out incorrect statistics. We urgently amended the figures as soon as we could but acknowledge they shouldn’t have gone out in the first place. We will investigate this error and take steps to make sure this doesn’t happen again.”

Let’s hope Wright blames the heat and resists the temptation to roll heads.

Shocker for media luvvie lawyers

A devastating development for London’s elite cadre of media claimant lawyers has emerged from the recently published Winmark “C-suite report”.

For those unfamiliar with the jargon, C-suite does not refer to champagne-soaked two-bedroom accommodation at the Savoy, but instead to chiefs – as in executive, financial and even technology officers.

Winmark doles out high-level business advice to those big hitters. And the shocker for designer-label bedecked media lawyers are these words of wisdom for titans of industry when faced with an embarrassing story: “Resorting to legal advice or action in the face of hostile press attention should be a final, ‘nuclear’ option. If a firm opts to use ‘go-betweens’ to deal with the media, it is much better to deploy a communications professional than a lawyer.”

Vine gets Trussed up

Sarah Vine, the no-nonsense, tough-talking power behind Michael Gove before he committed political suicide in the aftermath of the Brexit referendum, got a tiny bit confused in her Daily Mail column on Wednesday.

Vine, the wife of the former lord chancellor, ostensibly went in to bat for his successor, who, depending on your historical source, is the first woman to assume the role. Gove’s successor has faced much sniping over her alleged lack of qualifications for the job, which many see as thinly-veiled sexism. Vine wanted to exhibit her sisterly support.

The only problem? “The justice secretary Lynn Truss was on the Today Programme on Monday…,” wrote Vine, kicking off her article.

Er … the justice secretary is Liz Truss. Lynne Truss – with an “e” – is the author of Eats, Shoots & Leaves: the Zero Tolerance Approach to Punctuation and former sports columnist for this newspaper.

Perhaps an easy mistake to make as Vine’s now backbencher husband was also a Times journalist in another life. To be fair, the Daily Mail has amended its online reference and will undoubtedly keep its Trusses in order from now on.

The Churn

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

Lucraft to be next chief coroner of England and Wales

The Brief continues its tireless effort to round up all the legal profession moves during a surprisingly eventful August …

Judge Mark Lucraft, QC, 54, will become the chief coroner of England and Wales from the beginning of October, the Lord Chief Justice announced. He will succeed Judge Peter Thornton, QC, who is retiring.

Judge Lucraft spent 27 years at the Bar, practising from 18 Red Lion Court until 2011, when he was made a circuit court judge. He is currently based at the Old Bailey.

Also while the catfish were jumping …

Kennedys, the City of London insurance law specialist firm, announced it would be taking over Waltons & Morse, a niche shipping practice. The move will add a 28-strong lawyer team to Kennedy’s books, including five partners. The firm predicted its annual turnover would reach £150 million on the back of the deal.

Also in the City, Shoosmiths, a firm based in the Midlands, laid down a marker of its intentions in the capital by poaching four lawyers for its partnership. Corporate lawyer Amit Nayyar joins from Hogan Lovells; Tim Johnson joins as a planning partner from Charles Russell Speechlys; environmental specialist Angus Evers is the latest to bail out from King & Wood Mallesons; and property lawyer Ed John moves from Hogan Lovells.

Withers, the private client specialist firm in the City, boosted its Hong Kong team by luring David Mallinson to its partnership. The hotels and hospitality specialist makes the move from the Hong Kong office of Mayer Brown, the US law firm.

Georges Racine has joined the partnership at Holman Fenwick Willan, the London-based shipping specialist practice. He moves from Swiss firm Lalive.

Closer to home, warring couples in the northeast of England will be relieved to hear that Vardags, the high-profile divorce practice, is opening in Newcastle. The firm is headquartered in London, with existing offices in Winchester and Manchester.

Closing Statement

Choppy waters

The gently chiding riposte is seldom better executed than by counsel in the back-and-forth of courtroom dialogue, writes Gary Slapper.

The distinguished 19th-century counsel, Serjeant William Channell (later Baron Channell of the Court of Exchequer), was known to be "a little shy of his Hs".

In a case about a ship heard before the quintessentially English judge Sir Cresswell Cresswell, one side was represented by Serjeant Channell, and the other by Sir Frederick Thesiger. After a while, because of counsels' different pronunciations of the ship's name, the judge interjected: "What is the name of the ship? I now have it in my notes as 'Ellen' and 'Helen'."

Thesiger rose to reply, and said in a bland tone. "My lord, she was christened Helen but she lost her H in the chops of the Channell".

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