Problems viewing this? Click to view in your browser
The Times

Monday, January 9 2017

Good morning and welcome back to The Brief in 2017. Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

Breaking: UK drivers to sue VW over emissions scandal

Volkswagen could face a £30 million legal claim from British motorists over the diesel emissions scandal, The Times reports this morning.

Some 10,000 owners who claim that they were misled into buying cars by VW having faked emissions statistics on its diesel models are planning to sue for £3,000 each in compensation. If the German company then has to pay out for other cars in the group affected by the scandal the total could reach £3.6 billion.

Today's other headlines ...

  • Judge attacks misconduct finding as ‘bullying’
  • Solicitors slate legal aid rate rise for crime QCs
  • New exam will create ‘unsafe’ lawyers
  • Law on terminally ill ‘must be reformed’

While we were away …

  • Deadline for King & Wood Mallesons administration
  • Law Society in turmoil as boss bails out
  • Mergers continue
  • Christmas pay bonanza at Clifford Chance


  • Comment: Exploding the new year divorce myth
  • Blue Bag diary: A feast fit for a silk
  • The Churn: Baker McKenzie latest to rescue KWM partners

Plus, see our plans for Brief Premium and archive of articles so far.

Tweet us @TimesLaw with your views.

Story of the Day

Judge attacks misconduct finding as ‘bullying’

One of the country’s few black judges has attacked the judicial disciplinary system for “bullying” and “discriminatory” behaviour after he was rebuked for publicly criticising the decision of a fellow judge.

The process also came under fire for being held behind closed doors and for not allowing the judge to call witnesses in his defence.

Peter Herbert (pictured), a part-time crown court judge and chairman of immigration and employment tribunals, was found by a disciplinary panel to have been “guilty of misconduct” after addressing a rally in east London in 2015, reports The Times.

The demonstration in Tower Hamlets was organised to protest against the ruling of the election commissioner that Lutfur Rahman, the one-time mayor of the London borough, should be barred from standing for public office for five years after having been found guilty of electoral fraud.

A four-strong panel of the judicial conduct investigation office found that at the end of November, in a ruling that has just been revealed to The Times, Herbert, who is also a practising barrister and leader of the Society of Black Lawyers, inappropriately told the rally that he was a judge.

It criticised him for going on to imply to the crowd that the electoral commissioner’s decision was rooted in a belief that ethnic minorities were “not regarded as British”.

The disciplinary panel stopped short of calling for Herbert to be handed a full reprimand and instead has recommended that he be given “formal advice”. The panel’s recommendation has been sent to the lord chief justice, the senior judge in England and Wales, and the lord chancellor for approval.

However, the panel also criticised the official handling of Herbert’s disciplinary process. It found that he was wrongly pressured by a senior presiding judge not to continue sitting on the bench while the complaint was being investigated. It was suggested that if Herbert did not voluntarily temporarily stand down, he would be suspended.

The panel recommended that a “suitably senior person apologies formally” to Herbert for those attempts to force him to stand down as “the complaint was not sufficiently serious to warrant suspension”.

Herbert, a long-standing campaigner for enhanced race discrimination awareness training on the bench, was damning of the panel’s findings. “As one of the few judges of African descent in the United Kingdom, who sits in three different jurisdictions, with a consistent record of fighting within the system for justice and equality, to be treated in this manner is a sad reflection on the judiciary itself,” he said.

News Round Up
Solicitors slate legal aid rate rise for crime QCs

A reformed fee model for legal aid rates in criminal cases has divided lawyers with solicitors deriding the move as a pay bonanza for QCs at the expense of junior advocates.

Ministers launched a “modernised” graduated fee scheme at the end of last week, which they claimed would ditch “outdated factors” such as the number of pages in a case. The new system will peg fees to the seriousness and complexity of the work.

The justice minister Sir Oliver Heald,QC, said that the current payment system “does not focus enough on the skilled work that barristers and solicitor advocates demonstrate every day in the crown court”.

Barristers welcomed the announcement from the Ministry of Justice, with the Bar Council and its young barristers’ committee releasing a joint statement.

Andrew Langdon, QC, the new chairman of the Bar, said that the revised scheme would remove a range of “perverse incentives arising from years of salami-slice and piecemeal cuts. It will better protect newly qualified advocates who under the vagaries of the present scheme are at the mercy of events not under their control.”

The independent Criminal Bar Association also welcomed the move, albeit with a caveat. “There is no new money, and no recognition that rates have declined sharply in real terms over the last 20 years,” said Francis FitzGibbon, QC, of Doughty Street chambers and the association’s chairman.

“We still have battles to fight, but the CBA believes that the new scheme is a great improvement on what has gone before, and we should at least give it a cautious welcome as a step in the right direction.”

Solicitors were far more sceptical. “Already well-paid QCs look set for a pay increase of around 10 per cent,” predicted Robert Bourns, president of the Law Society.

He continued: “The advocates towards the bottom of the pay scale – junior barristers and solicitors – will either stay the same or receive much smaller increases.”

Last month the society withdrew from discussions with the ministry on reforming the system because, said Bourns, “restrictions were brought in on how information was shared, which meant it was not possible for us to contribute to the process in a meaningful way”.

New exam will create ‘unsafe’ lawyers

A proposed streamlined qualification exam for solicitors is “too superficial” and will result in lawyers who cannot act “safely for the public”, the head of the country’s biggest law school has argued.

The profession’s regulator is consulting on an overhaul of the qualification processes. According to the Solicitors Regulation Authority, the training regime needs to be streamlined so that the profession is more open to a wider social diversity of potential candidates.

But its plan for multiple routes to a single entrance exam has been highly contentious, not least with providers of the current legal practice course, the one-year vocational programme required of most aspiring solicitors.

“We disagree that the proposed solicitors qualifying examination will be a robust and effective measure of competence,” Andrea Nollent, chief executive of the University of Law, said on Friday.

Nollent said that the law should continue to be a graduate profession, describing the proposed exam as “too superficial in stage 1 and too narrow and restricted in stage 2 to properly assess the competence needed for trainee or qualified solicitors to safely act for the public”.

The university forecasts that if adopted the new regime will force large City of London law firms to enrol their trainee solicitors on additional courses “to make up for the competence gap”.

According to Nollent, “these courses will add to the cost of training and potentially end up costing students more than the current legal practice course”.

Law on terminally ill ‘must be reformed’

Legislation covering the terminally ill is in dire need of reform, argue the lawyers acting for a retired lecturer with motor neurone disease who took his case to the High Court last week.

Noel Conway is bringing a judicial review of the law on assisted dying in an attempt to change the position so that a doctor will be able to prescribe a lethal dose of medication when his health deteriorates.

It is the first prominent legal case on assisted dying since Tony Nicklinson, who had locked-in syndrome, fought through the courts for the right to end his life legally. Nicklinson’s case was defeated in the Supreme Court three years ago.

“The world has changed phenomenally in the past few decades, with many medical advances,” said Yogi Amin, a partner at the law firm Irwin Mitchell, which is acting for Conway. “But the law on assisted dying for those who are terminally ill hasn’t changed for more than 50 years.”

Amin said that his client wanted to change the law “so that it respects an individual’s choice about dying with dignity. This situation is clearly traumatic for the individuals involved and their families who are often torn between not wanting to see their loved one suffer and also not wanting to lose them and we commend Noel for his bravery in bringing this important legal case.”

What you missed while we were away …

Deadline for King & Wood Mallesons administration

Most of the UK’s legal world ground to a halt while The Brief suspended publishing over the Christmas and new year break but some notable stories did crop up.

Pride of place, arguably, still goes to King & Wood Mallesons, with the European office of the international law firm crawling slowly towards administration. As last year drew to a close, the firm informed the court of its intention to bring in administrators and the deadline for an appointment is today.

The firm’s plight descended into almost tragi-comedy last week when it was reported that the company that supplied KWM’s London office with lavatory paper had pulled its contract.

According to The Lawyer magazine, the lavatory paper supply was one of several to drop the firm. Its report claimed that those left at the firm are unable to use courier or postal services. More broadly, the Legal Week website claimed that as the new year dawned the firm had put 100 members of staff on unpaid leave.

Law Society in turmoil again as boss bails out

If KWM’s travails illustrate that all may not be well in the world of high-flying global law firms, another tale demonstrated wider difficulties for legal profession representative bodies.

Catherine Dixon unexpectedly resigned as chief executive of the Law Society last week, and she didn’t go quietly. The solicitor and former head of the NHS Litigation Authority lambasted the old guard at Chancery Lane for having, in her view, an intransigent reluctance to modernise.

The society – which represents 130,000 solicitors in England and Wales – has a two-decade history of internal discord and backbiting. In a long resignation letter, Dixon expressed frustration that the organisation’s ruling council was reluctant to accept the recommendations of a recent governance review.

It seems that the council had baulked at the age-old seasonal proposition of turkeys voting for Christmas, as a core pillar of the review’s recommendations was that a smaller streamlined body was needed for more efficient decision making.

The society itself was in lockdown after Dixon fired her fusillade. A spokesman for the organisation would not comment on when the boss was leaving or the length of her contractual notice period.

DWF forges path in France; Addleshaws toys with Germany and US

On the merger front, while KWM – the product of a 2013 merger between SJ Berwin and the Sino-Australian practice – highlighted how deals can go wrong, a couple of firms were still keen to walk down the aisle.

Legal Week reported that DWF had moved into the crowded French market after merging with Heenan Paris, a firm that itself was a recent spin-off from a Canadian practice. And Legal Business reported that Addleshaw Goodard, the City firm, was in talks with prospective brides in Germany and the US.

Father Christmas was kind to Clifford Chance’s top dogs

Square Mile legal profession observers were also treated to the spectacle of law firm bosses giving themselves a juicy Christmas present. Legal Week reported that Clifford Chance’s 12-strong management team awarded its members an average 7 per cent rise to their drawings for the last financial year. The move took the lucky dozen to average annual drawings of £1.25 million.

In Brief
  • Top officer faces army court martial – The Times
  • City watchdog admits security blunders – The Times
  • Janner’s QC son to fight in abuse inquiry – The Sunday Times
  • CitySprint bike courier wins employment rights after tribunal test case – London Evening Standard
  • Prosecutors downgrade police ‘super spotters’ – The Times
  • Judge uses retirement speech to confess that he drew rude graffiti on an official court computer – The Sunday Telegraph

Stories you may have missed over the break ...

  • Online divorces to spare couples time and trouble – The Times
  • Plans for pleading guilty online raise fears of secret justice – The Times
  • Top patent attorney charged with indecent assault – Daily Telegraph (Sydney)

Exploding the new year divorce myth David Leadercramer

The surge in divorce enquiries after the Christmas break has been a seasonal news story in recent years – so much so that some have dubbed the first working day after the festive holiday “divorce day”.

With this in mind, perhaps, on my return to the office after the holidays, I should have expected to see a clutch of distressed clients camping out at my door impatiently waiting to give me instructions to start proceedings against their unfortunate spouses.

Of course this didn’t happen, and never has.

Instead, as I suspect is common with the majority of family lawyers, the first few days back have been much like any other in the year – a few new enquiries and meetings but nothing out of the ordinary after any public holiday.

Admittedly, if you are coming to the conclusion that your marriage is over in November or December, you are hardly likely to announce it to your loved ones over the Christmas turkey or as you sing Auld Lang Syne. The breakdown of a marriage is a serious and sometimes tragic event for the families and children concerned. It’s hard to think that a life-changing decision like this is triggered by a difficult festive period alone.

Whatever the reasons and timing, any family or individuals experiencing divorce will go through considerable pain that our current legal system does little to alleviate. Parties still have to bring divorce proceedings that are usually fault-based and at a time when we should be attempting to cool tempers and alleviate tensions, our system encourages the opposite.

So why is this myth perpetuated by law firms and enthusiastically reported by many in the media?

The law firms who make the claims enjoy the publicity. Same press release with a different date. It puts them positively in the public eye, which is not necessarily the way in which family lawyers are commonly perceived. Firms play to the concept of a surge in instructions because it makes them seem busy and popular, even if their levels of activity are nothing to do with the last seven days of December.

As a result, “‘tis the season to divorce” has become as much a staple new year story as the “wonder diet” and “how to get fit”.

Family law presents some unique challenges to practitioners and can be seen by other lawyers and the public alike in a poor light given that we are clearly the most distressed of purchases for our clients. So, when an opportunity such as “divorce day” offers a light touch association with an acutely serious event in life, for some the resulting PR carries more value than the facts.

David Leadercramer is a family law partner at DMH Stallard, a solicitors’ firm in the City of London

See Blue Bag below

Tweet of the Day

This year I'm going to learn to: a. convincingly disguise myself as the Queen; & b. lop off an adult male's head with a sword. Just in case.

Law Geek @law_geek

Blue Bag

On the “d-day” bandwagon

One senior family law specialist may have blown the gaff on the “divorce day myth” (see our comment article above), but that did not stop other law firms from jumping on the tired old bandwagon.

For at least the last five years, some in the family law business have been purveying the line that the first working day after the Christmas and new year break involves a rush of couples filing for divorce. The stress of the annual get together puts already fraught relationships under unbearable strain, runs the argument.

As our commentator above suggests, there seems to be little quantifiable evidence of this phenomenon, which appears to have been cooked up in law firm marketing departments.

Leading the charge this year was an Edinburgh law firm, Gibson Kerr, which unveiled a “special hotline … to help couples who are desperate for professional advice on marital disputes during the holiday season”. And south of the border, two of the biggest law firm brands also did their bit to further the idea that the UK goes divorce mad in January.

“Traditionally, the first day legal offices open after the festive break is the busiest day of the year for divorce enquiries,” Slater and Gordon said. “Lawyers across the UK are bracing themselves for a huge spike in divorce enquiries.”

The firm’s arch rival, Irwin Mitchell, chipped in with an actual statistic, claiming that for the past few years its crack team of divorce lawyers had “seen enquiries up by as much as 25 per cent [in January] compared with average month”.

A feast fit for a silk

Forget MasterChef and Bake Off, they are mere sideshows to the true culinary challenge proposed next month by one of London’s leading costs barristers.

PJ Kirby, QC, will feature as a one-man kitchen in a reprise of an event from last year. He aims to produce a minimum five-course feast for more than 60 punters on two separate evenings. The money raised from his efforts will go to Kirby’s “billable hour” campaign, a charity appeal for refugee children.

The QC-in-the-kitchen challenge is scheduled for February 10 and 11 at St Thomas with St Stephen Church in Balham, south London. For a fee of £20 per head, punters will be treated to a taste extravaganza – or at least an entertaining night out.

Kirby tells The Brief that he has not yet decided on this year’s menu. Last year he whipped up Jerusalem artichoke soup with chestnuts, pigeon breasts with pomegranate, broccoli with sweet tahini dressing, pigs’ cheeks with sweet potato, peas and apple, blood orange sorbet, chocolate and cherry terrine and truffled brie with Balham honey.

Numbers will be tight, but if you fancy your chances, contact Kirby at his chambers, Hardwicke in Lincoln’s Inn.

The Churn

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

Baker McKenzie latest to rescue KWM partners

Baker McKenzie, the US-based international law firm that recently took the monumental decision to drop the ampersand from its name, became the latest practice to pick up two partners from what is rapidly becoming wreckage of King & Wood Mallesons in London.

Will Holder and Carl Richards will join Baker’s London mergers and acquisitions and employment teams, respectively, the firm announced.

A couple of other US firms have boosted their London partnerships. Morrison & Foerster promoted 15 partners worldwide at the beginning of the year, with Gemma Anderson, a commercial litigator, getting the nod in London.

Finnegan Henderson Farabow Garrett & Dunner, a US-based intellectual property law firm, promoted Leythem Wall, a chartered patent attorney, to its partnership in London.

Hogan Lovells, the transatlantic firm, boosted three to its partnership in London, out of 29 promotions worldwide: Tarek Eltumi, a finance and energy specialist, Richard Goss (banking) and Nathan Searle (litigation and arbitration).

There was no seasonal goodwill-triggered pause in law firms poaching partners over the break. Bird & Bird, the City firm, raided PayPal to lure Guadalupe Sampedro, a data protection specialist, to its partnership, where she will split her time between the firm’s London and Madrid offices.

Simon Bushell jumped to the partnership of Signature Litigation in the City, moving from the London offices of the US firm Latham & Watkins.

Two English firms poached from rivals in Europe. Herbert Smith Freehills raided Hogan Lovells in Paris to scoop up Antoine Juaristi and his banking and finance litigation team. In Amsterdam, David Schreuders, a fraud investigations specialist, jumped to Simmons & Simmons from the transatlantic firm DLA Piper.

Closing Statement

Parroting the law

The tale of the Californian lawyer who, just before Christmas on year, recalls James Morton, sorted out visiting rights to an estranged couple’s parrot on the basis of mutual undertakings not to slander the other in front of the bird shows that there really is nothing new under the sun.

Likewise, back in 1928 when JB Sandbach was the magistrate at Lambeth in London, he dealt with a neighbourly dispute when a lady complained that she had been the subject of “awful” language for some length of time.

Asked to give some examples, the woman began to cry in the witness box and Sandbach, in the true kindly fashion of the stipe, leaned over to say that there was nothing to cry about.

“No need to cry about it,” exclaimed the woman indignantly. “It’s been going on for five years and now the bloody parrot’s learned it and it calls me them names too.”

James Morton is a former criminal law solicitor turned author