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The Times

Wednesday, April 12 2017

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


  • Divorcing financier is not ‘genius’, rule appeal judges
  • Police warn barrister over online harassment
  • Newspapers lose challenge to libel ‘costs bonanza’
  • Parents to appeal against ruling denying baby’s treatment
  • Case management ‘driving up litigation costs’
  • Hong Kong cheaper than London for arbitration
  • Comment: Reform law to make ‘gig economy’ employment fairer
  • The Churn: Solicitor insurer cuts legal panel to four firms
  • Blue Bag diary: Law museum wrestles with right and wrong

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

Story of the Day

Divorcing financier loses ‘genius’ argument

An American financier must hand over half his £180 million fortune to his former wife after senior judges ruled that there was nothing “special” about his financial contribution to the marriage.

Randy Work’s lawyers said that he was a financial “genius” and argued that it was grossly unfair that his ex-wife, Mandy Gray (pictured left), should walk away with an equal share of the money he earned for the private equity giant, Lone Star.

His financial input into the marriage was so “wholly exceptional” that he deserved “special treatment” and his ex-wife should only get 39 per cent of the marital wealth, argued his barrister, Nicholas Cusworth, QC, of 1 Hare Court in the Temple.

However, Sir Terence Etherton, Master of the Rolls, yesterday backed Gray, saying she was part of a “strong and equal partnership” for over 20 years and deserved a full half share.

Work (pictured right), 50, and his 48-year-old American wife began living together in 1993. They were married in 1995 and had two children. They moved to England nine years ago and were in their forties when their 18-year marriage broke down in 2013, the judges heard.

When they met, both were in “good but modest jobs” and had “no significant financial resources”, the judge said. However, that changed dramatically when Work studied for an MBA while his wife worked to support them. He got a job with Lone Star in 1997 and has earned $300 million between then and leaving the company in 2008.

By 2013, their relationship was over after Gray had an affair with their “personal physiotherapist”. Since then, the pair have spent almost £3 million on divorce lawyers, a sum that Sir Terence described as “staggering, profligate and unnecessary”.

Sir Terence, sitting with Lady Justice King and Lord Justice Moylan, said the case provided “an opportunity for this court to review the issue of special contribution and its proper scope”.

Despite the vast wealth he had generated, Mr Justice Holman had “fully explained” his conclusion that Work’s financial contribution was not so exceptional as to justify special treatment or an unequal division of the marital fortune.

Lawyers commented that the case set the bar high for future special contribution “genius” arguments. “It is hard to imagine any cases that would succeed on arguments that one spouse would receive a higher proportion of family wealth because of a genius quality,” Joanna Farrands, a partner at the Barlow Robbins law firm, said.

She pointed out that Ryan Giggs, the former footballer, is understood to be considering pleading a similar argument in his divorce proceedings, “but on these facts he should not be successful unless football skill is rated higher than financial and investment prowess. It will be interesting to see the outcome”.

News Round Up
Police warn leading barrister over online harassment

Police have issued a harassment warning to a high profile barrister amid allegations that she waged a campaign of online bullying, abuse and “death threats” against a law student and another lawyer.

Barbara Hewson, who attracted controversy in the wake of the Jimmy Savile scandal when she called for the age of sexual consent to be dramatically lowered, is the subject of mounting complaints to the Bar’s regulator.

At least three complaints have been lodged with the Bar Standards Board, The Times has learnt. It has also emerged that Hewson, a Court of Protection and human rights specialist, has left her chambers, 1 Gray’s Inn Square in London, within the past few weeks.

The set — which is also home to the high profile civil liberties lawyer, Michael Mansfield, QC — would not comment on her departure, apart from saying she had left “for personal reasons”.

In a 22-page complaint to the Bar’s watchdog, seen by The Times, Mehul Desai, a student at Nottingham University Law School, claimed that he had “received death threats and abuse over the phone” from Hewson. The student alleged that the lawyer pestered him so incessantly with nuisance phone calls that he was left “feeling frightened, alarmed, distressed and anxious”.

The dispute allegedly grew out of Desai’s support for Sarah Phillimore, a family law barrister at St John’s Chambers in Bristol. Phillimore is a well-known campaigner on child protection issues who has frequently crossed swords with Hewson on social media over their opinions on investigations into alleged historical child abuse cases.

Desai alleges that Hewson contacted him in an attempt to obtain “dirt” on the barrister. When the law student refused to agree, he claims he was subjected to a growing barrage of online and other abuse.

Phillimore told The Times that “following months of serious and frightening harassment” by Hewson, she registered a complaint with the police earlier this year. Officers from Scotland Yard issued Hewson with a harassment warning notice, officially referred to as a police information notice, she said.

The Metropolitan Police confirmed to The Times that on March 1 “a 55-year-old woman was issued a harassment warning. The victim was informed of this outcome”. The warnings have no legal standing and do not establish wrongdoing, but are used by police as a response to allegations of low-level harassment.

Hewson did not respond to requests for comment. There has been no finding against Hewson, and the BSB said it would not comment “as to whether or not individual barristers are the subject of a complaint or a disciplinary investigation”. It would also not comment on whether a police harassment warning would automatically trigger disciplinary proceedings against a barrister.

Newspapers lose challenge to libel ‘costs bonanza’

Newspapers' freedom to publish suffered a blow yesterday when Britain’s highest court endorsed ​rules that allow “exorbitant” levels of legal costs to be awarded against them in defamation cases.

Three of the biggest newspaper organisations had challenged rules that they described as a "costs bonanza" for lawyers and that have a "chilling effect" on freedom of expression and investigative journalism.

At a hearing earlier this year they told the Supreme Court that the regime of "no win, no fee" arrangements, by which lawyers can double their fees if they win a libel or privacy action, is a "legal casino" for lawyers and can stifle serious journalism.

However, five justices — led by Lord Neuberger of Abbotsbury, the court’s president — unanimously rejected the challenges in separate cases brought by Times Newspapers, the Mirror Group and Associated Newspapers.

Lord Neuberger said that to refuse to allow claimants who have pursued actions against the newspapers to recover additional costs would "infringe their rights", because it would amount to changing the rules retroactively under which they sued, and would "undermine the rule of law".

Each newspaper publisher ​ now faces substantial costs, which in the case of MGN amounts to a total of more than £7.5 million. Lord Neuberger said that claimants who had sued the three newspaper groups also had a right the recover their costs under the prevailing system and "had a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment”.

Times Newspapers was appealing over an order to pay about £1.7 million in legal fees relating to an article that reported a police officer was facing investigation for taking bribes. The officer, Gary Flood, who was cleared by the investigation, sued The Times. Although the newspaper successfully argued that it had a public interest defence in relation to most of the publications.

Flood won substantial damages for a part of his claim that related to publication on the internet after he was cleared of the internal police investigation. As well as contesting liability for success fees, The Times argued that it should not have to pay the entirety of Flood's costs — inflated by the up 100 per cent uplift allowed in such cases — because it won a significant part of the case.

Parents to appeal against ruling denying baby’s treatment in US

The parents of Charlie Gard plan to appeal against a judge’s ruling that doctors could stop life-support treatment for their gravely ill baby against their wishes, their lawyer has said.

Specialists at Great Ormond Street Hospital in London say that the eight-month-old baby, who suffers from a rare genetic condition and has brain damage, should move to a palliative care unit.

His parents Chris Gard, a postman, and Connie Yates, who are both in their early thirties, want to be allowed to take him to a hospital in the US for treatment.
Yesterday Mr Justice Francis ruled with the "heaviest of hearts" that life-support treatment should stop after analysing evidence at a hearing in the family division of the High Court in London and visiting Charlie in hospital.

Charlie, who was born on August 4, 2016, has a form of mitochondrial disease, a condition which causes progressive muscle weakness and brain damage. His parents launched an appeal on the Gofundme website two months ago, saying they needed £1.2 million to fund the US treatment. They reached their target on Sunday after more than 80,000 people donated.

After hearing the decision, Pravin Fernando, a barrister at Serjeants’ Inn in London, told the judge that the couple wanted to challenge his ruling in the Court of Appeal. The family’s solicitor, Laura Hobey-Hamsher of the London law firm Bindmans, said outside court that the couple would have three weeks to submit a challenge.

She added that the parents were “struggling to understand why the court has not at least given Charlie the chance of treatment in America”. Lawyers representing Great Ormond Street told the court that treatment would continue until appeal decisions had been made.

Case management ‘driving up litigation costs’

Measures to curb the rocketing price of litigation have backfired, lawyers claim, arguing that being forced to comply with unrealistic deadlines has pushed up costs.

A poll of litigation solicitors at Britain’s 200 largest law firms found that 65 per cent of personal injury specialists and 60 per cent of commercial litigators viewed the costs management process as a failure.

But despite their dislike of the requirements, which were introduced in the county court and High Court in England and Wales four years ago, a significant majority of lawyers prefer the system to the proposed alternative. Some 90 per cent of personal injury lawyers and nearly 80 per cent of commercial litigators preferred costs management to a system of fixed recoverable costs.

However, the figures altered considerably when solicitors were asked to anticipate the views of their clients. Some 67 per cent of personal injury solicitors said their clients would prefer costs management, while the majority, 57 per cent of commercial litigators anticipated that their clients would prefer fixed recoverable costs.

“The majority of solicitors feel there is a lack of consistency in the judicial approach towards costs management,” Phil Bradbury, of Just Costs Solicitors, the firm that commissioned the research, said.

“The lack of guidance as to what proportionate costs means and the fact many judges are still unclear on what basis they are supposed to review the parties’ budgets only serves to heighten their concerns.

“The introduction of costs management has only increased the cost of litigation in some litigators’ eyes. The need to comply with deadlines, or having to apply for an extension before the deadline expires, is seen as an accumulation to the cost of litigation, especially when the principal claim remains their main focus of litigation.”

Hong Kong cheaper than London for arbitration

Arbitration in Hong Kong is the cheapest in the world, research published yesterday claimed.

Disputes were settled for the lowest cost in the Hong Kong International Arbitration Centre when compared with the other main players, including the London Court of International Arbitration, the Singapore International Arbitration Centre and arbitration handled by the International Chamber of Commerce.

However, according to a report from the New York law firm White & Case, London appears to be competing with the other centres in the costs market. For claims of less than $1 million, its costs are comparable with those at the ICC and in Singapore.

And for claims involving more than £1 million, London is more competitive. Its costs are comparable with those in Hong Kong, but lower than those at the ICC and in Singapore. The report points to recently released figures from the Hong Kong centre that show mean total costs of an arbitration being $65,721, compared with $192,000 in London.

The survey also found that disputing parties are increasingly opting for a single arbitrator in an effort to cut costs and simplify proceedings. Of those bringing cases to the London centre in 2015, 52 per cent chose sole arbitrators, with the remaining 48 per cent opting for three-member panels. That was a significant increase on the 28 per cent that plumped for a sole member in a comparable survey in 2014.

However, the increasing preference for sole arbitrators more widely was less pronounced. According to the survey — conducted for White & Case — of the 1,313 appointments and confirmations made by the International Chamber of Commerce in 2015, 19 per cent involved sole arbitrators, only two points up on the previous year.

In Brief

Former Clyde & Co associate facing prosecution – Law Gazette

Solicitor suspended after transfering £1.3m to Belize – Legal Futures

More bad news for legal profession jobs in US – American Lawyer

Amanda Knox’s boyfriend sues for wrongful murder conviction – The Times


Reform law to make ‘gig economy’ employment fairer Jason Moyer-Lee

Theresa May has tasked Matthew Taylor, Tony Blair’s former policy director, with reviewing and making recommendations on how employment law should adapt to modern forms of work.

This is the three-point plan that my organisation — as a small grassroots trade union that has been waging and winning employment status test cases in the so-called gig economy — suggests to Taylor:

First. the government should make it easier for claimants to take their employers to the employment tribunal. The most obvious and easiest way to do this is to remove tribunal fees.

The fee regime, which has resulted in a near 70 per cent decline in claims, is a massive deterrent to potential claimants, including those with strong cases. Similarly, employers found to have bogusly classed their workers as “independent contractors” to deprive them of rights should be fined. Doing so would give them an incentive to behave lawfully.

Second, the government should enforce the law. With limited exceptions, enforcement depends on the workers. This has allowed various businesses to behave unlawfully for years with no consequence.

If a delivery company rider breaks into the boss’s office and steals a computer, that rider could face a year’s imprisonment. On the other hand, if the business steals holiday pay worth the value of a computer from that rider, nothing happens unless the rider decides to take the company to a tribunal.

And if the rider wins, the only consequence is the business has to pay for the holiday time claimed. The cumulative impact of a lack of government enforcement, no fines for employers that use bogus contracts, and high employment tribunal fees is a perverse system that allows unlawful behaviour and deters workers from obtaining redress.

The overwhelming problem of employment rights in the so-called gig economy is that the current law is not enforced.

Third, in recognition of the changing economy and new forms of work such as that provided by Uber and Deliveroo, statutory employment rights should be improved.

In particular, rights for the self-employed, who carry out their work as part of someone else’s business and as such have some employment rights, should be improved. For example, the Pimlico plumbers, Uber drivers, and City Sprint and Excel couriers — all of whom have been declared workers by recent employment tribunal decisions — should be able to claim unfair dismissal and statutory maternity or paternity pay.

Gig economy companies clearly hire and fire, and it is difficult to think of a justified reason why they should be allowed to do so unfairly.

Jason Moyer-Lee is the general secretary of the Independent Workers Union of Great Britain

Tweet of the Day

We are all personally accountable for the low number of women briefed in court #equitablebriefing #womeninlaw

Larissa Andelman @Larissaandelman

Blue Bag

Law museum wrestles with right and wrong

Does something being legal make it right and does something being illegal make it wrong?

It’s the type of question that gives Team Brief a migraine. But the National Justice Museum — which opened earlier this month in Nottingham, with other venues in London and Manchester — is determined to get to the bottom of it.

To mark its launch, museum officials have commissioned a report that will wrestle with “the differences between right and wrong in both a moral and a legal sense”. It is anticipated the report will comment on a range of issues, including modern slavery, the place of protests in modern society, how freedom of speech has evolved and the importance of education in relation to social justice.

The museum is a beefed-up version of the Galleries of Justice, which has been in Nottingham since 1995, with its expansion funded by a £1 million Heritage Lottery Fund grant.

“We want visitors and students to gain a real sense of their rights and responsibilities,” Tim Desmond, the museum’s chief executive, said.

“With this in mind, we felt it necessary to ask academics, professionals, students, young people and the wider public about their opinions. The resulting report will not only be a fascinating talking point during our exciting launch period, but a representation of how important knowledge is to the success of the legal system and social progress.”

Lifting the spirits

Bronwyn Cowan does not have much luck with lifts.

The 63-year-old Australian had the terrible misfortune eight years ago to be in one at London’s Tower Bridge that dropped 10 feet to the ground, injuring both Cowan and her husband. She is suing the City of London Corporation, which owns the bridge, for £300,000.

But as she attended the Royal Courts of Justice in London for the first day of the hearing, Cowan must have thought English lifts have it in for Australians — she was trapped for several minutes in one of the creaky specimens at the neo-gothic building on the Strand.

According to a report in the London Evening Standard, Judge Peter Wulwik was shocked and sympathetic. He allowed the Cowans to leave via a private judicial staircase at the end of the day.

Liability for the Tower Bridge incident was admitted a year ago, but the Square Mile corporation is disputing the value of the claim.

The Churn

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

Solicitor insurer cuts legal panel to four firms

Four law firms have been appointed to a slimmed-down panel to deal with “run-off” work from the now defunct mutual body that insured against solicitor negligence.

The Solicitors Indemnity Fund said that Bond Dickinson, Clyde & Co, Kennedys and Weightmans would deal with claims until September 2020, when the fund will stop providing cover.

The fund also said that McCormicks Solicitors, which had been dealing with its recovery cases, would have an expanded role working with its in-house team dealing with early claim notifications. The fund, which was launched in 1987, originally had 11 panel firms. That number peaked at 20 before being gradually reduced.

Lawyers get combat ready

Ahmed al-Nahhas, a partner in the military claims team at the Bolt Burdon Kemp law firm, is the new chairman of Forces Law, an independent group that offers legal support to services personnel.

The 20-year-old group consists of 20 law firms and provides advice on personal injury cases, court martials, resettlement grants and medical negligence. The group also runs a 24-hour helpline.

Elsewhere, Kris Inskip has joined Hilary Meredith Solicitors, the Cheshire firm that specialises in acting for armed forces personnel. Inskip joins from Slater and Gordon, where he was national head of clinical negligence.

Closing Statement

Know your defendant

One sure thing in a criminal trial, relates James Morton, is that the high watermark of the defence is the close of the prosecution’s case.

In the good old days when no comment could be made, many a counsel would avoid allowing the defendant to give evidence if at all possible. After FE Smith, later Lord Birkenhead, had obtained an acquittal in short order for Ethel le Neve in the Crippen murder case, the judge said to him: “I think you ought to have put her in the box.”

“No,” replied Smith, “I knew what she would say. You did not.”

James Morton is a former criminal law solicitor and now author