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The Times

Friday, November 11 2016

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

New Brief Premium

  • Enemies of the rule of law -- comment by Lord Goldsmith, QC
  • Lure of the litigator -- recruitment special

Also today ...

  • Ministers reject plea to ditch divorce court fee rise
  • Online courts ‘will trigger miscarriages of justice’
  • Whisper it quietly – Trump is good news for US lawyers
  • London-only work visas ‘destined to fail’
  • £30,000 fine for ‘phone-badgering will writers
  • Brexit countdown: Getting to know unfamiliar markets
  • Comment: Anti-coercive behaviour law is useless without funding
  • The Churn: Teasdale takes top insurance lobbying role
  • More Churn: Fieldfisher takes over Brummie law firm
  • Blue Bag diary: Truss ducks and dives – but for how much longer?

Tweet us @TimesLaw with your views.

Story of the Day

Ministers reject plea to ditch divorce court fee rise

Ministers have rejected a plea from MPs to ditch a recent increase in divorce petition fees, suggesting that the government will continue with plans to hit litigants for the costs of running the courts.

The Ministry of Justice said that sufficient assistance was available “to those who qualify” under the help with fees scheme and therefore the divorce filing fee of £550, introduced last March, would stand.

“The fee for a divorce is reasonable when considered against the objectives,” said the ministry in a response to recommendations from the House of Commons justice committee that it be scrapped. The MoJ said it was aiming to raise an estimated £12 million annually in additional fee income “as a contribution to the savings required to make sure that the courts and tribunals are properly funded, and that access to justice is protected”.

Ministers also said that they would not row back on proposals to “achieve full cost recovery in the Immigration and Asylum Chambers”. Lawyers estimate that tribunal fees in immigration cases will rise fivefold. The ministry said that it was still considering recommendations regarding increased fees in the employment tribunal and for money claims.

Legal profession leaders reacted angrily to the ministry’s response. Robert Bourns, president of the Law Society, which represents solicitors in England and Wales, said: “Punitive courts and tribunals fee increases are denying justice to citizens and businesses. The government must heed the views of experts from the legal profession and beyond and urgently assess the impact of fee increases on access to justice.

“Recent fee increases should be reversed pending a proper assessment of their effect on access to justice.”

Bourns opposite number at the Bar agreed. “The government’s response to the justice committee’s report … is deeply disappointing,” said Chantal-Aimée Doerries, QC, chairwoman of the Bar Council. “The government seems wedded to the principle that courts should be used as a source of revenue, despite repeated calls for a review and the growing evidence that this approach is effectively pricing people out of justice.”

See comment below

News Round Up
Online courts ‘will trigger miscarriages of justice’

Online criminal courts risk creating miscarriages of justice unless there is independent judicial scrutiny, a think tank warned yesterday.

Defendants who go through criminal “online” trials will be under pressure to accept charges and sentences, the charity Centre for Justice Innovation warned in a response to the Ministry of Justice’s consultation paper “Transforming our Justice System”.

The charity said that it welcomed in principle the introduction of technology to modernise court processes and make them more accessible. However, the introduction of an online process for some simple criminal offences “must be subject to independent judicial scrutiny”.

Its response also said that an online court system must be fair and defendants must be provided with a clear understanding of the process. The centre warned that without access to legal advice, as proposed, defendants in online conviction cases would find it “even more difficult to challenge sentencing decisions”.

Calling for a national system for the scrutiny of online convictions, the centre said: “Only independent, judicial scrutiny is able to help build public confidence in the online conviction system. Any administrative or executive scrutiny, no matter how honestly and fairly administered, is liable to be perceived as biased on behalf of the state.”

London-only work visas ‘destined to fail’

Proposals for London-only visas for foreign workers post-Brexit are unworkable and will be scuppered by the Home Office, lawyers predict.

The London Chamber of Commerce and Industry has mooted the plans with the London mayor Sadiq Khan in an attempt to shore up the UK capital’s status as the most business-friendly city in Europe after the country leaves the EU.

Proponents point out that about a quarter of London’s workforce is not British, a fact that some suggest makes the capital three times more reliant on foreign workers than the rest of the UK. It is estimated that around 75 per cent of London’s current EU workforce would not meet existing work visa rules for non-EU workers.

As a result the chamber maintains that many London employers would welcome a local visa system, which would be designed and overseen by a bespoke body.

However, lawyers pour cold water over the idea. “While it would be great for London business,” Charlie Pring, an employment law specialist at the City law firm Taylor Wessing, told The Brief, “the difficulty will be persuading the Home Office to adopt it.”

Pring maintained that “the added complexity of a bespoke system, the problem of keeping track of workers that are based out of multiple UK offices or that move to other parts of the UK, and the inevitable demand from other regions for an equivalent scheme will make that a real challenge”.

He also pointed to political sensitivities. “There may also be concern that a London-only scheme would draw even more workers to London, at a time when the government is trying to rebalance the economy away from the capital.”

£30,000 fine for phone-badgering will writers

A will-writing company has been hit with a £30,000 fine by the information watchdog for making nuisance calls.

Assist Law, based in Weston-super-Mare, Somerset, made unsolicited marketing calls to people registered with the Telephone Preference Service for more than a year. Nearly 100 complaints made by TPS subscribers prompted an investigation by the Information Commissioner’s Office (ICO).

The will-writing company made calls using information from a third-party company, which claimed that people on its calling list had consented to being telephoned. This was not the case. It is against the law for companies making marketing calls to telephone people registered on the TPS. Companies should carry out regular checks to make sure that they are not calling people on the register.

Andy Curry, the ICO enforcement manager, said: “Despite repeated warnings, this company failed to take the basic steps required by law. They should have asked for evidence of consent and screened against the TPS list to check whether people had chosen not to receive marketing calls.

“They relied on a separate company to do this which wasn’t good enough. Any company that instigates a marketing campaign is responsible for taking these steps.”

The government last month announced plans to introduce fines of up to £500,000 for company directors heading up nuisance marketing firms. The new law is expected to come into force next spring.

The Information Commissioner’s Office notes on a recent blog that since a change in the law in 2015 making it easier for the watchdog to impose fines on companies behind nuisance calls it has issued more than £2.7 million in penalties. However enforcement remains a problem, with only six of the 27 fines paid in full, meaning that £2.26 million of the penalties remains unpaid.

Whisper it quietly – Trump is good news for US lawyers

Healthcare, tax and international trade lawyers in the US were reported to be quietly celebrating yesterday as regardless of what they thought of Donald Trump the politician they reckoned his policies would trigger a flood of work.

Trump’s shock promotion from casino-owner-turned-reality-TV-star to the White House forced managing partners at the US’s biggest law firms to gen up on his past policy statements.

On health, Trump is committed to repealing his predecessor’s Affordable Care Act. “We have a $3 trillion health care industry that is heavily regulated,” Ira Coleman, a partner at McDermott Will & Emery, told The American Lawyer magazine. “For Big Law, changes to the regulatory and legal environment are always good for business.”

Trump also has tax in his sights for significant reform, having indicated during the campaign that he would slash corporate rates and regulations. All of which would fall into the good news category for deal lawyers, said David Shine, the chairman of Paul Hastings mergers and acquisitions practice. “We’re not thinking about cutting back,” he told the magazine “We’re not particularly staffing up either. We think we’ll be in a good place.”

Trump on trade is the real potential mystery. The president-elect talked tough about China and made loud protectionist noises on the stump. “But no one really knows what Trump really believes,” said Douglas Doetsch, the head of Mayer Brown’s Latin America practice. “It's very difficult to separate his campaign rhetoric from real policy. There is tremendous uncertainty."

But, as the magazine pointed out, that is not necessarily a bad position for large law firms. It quoted Kim Koopersmith, the chairwoman of Akin Gump, pointing out that uncertainty could sometimes be a boon for lawyers. “The short to medium-term outlook is that implementing alternative trade structures is going to be a very labour-intensive process,” she said.

Brexit countdown – legal update as leave approaches

Getting to know unfamiliar markets

The mere prospect of the UK waving adieu to the EU has already clobbered the bearded world of London’s tech start-ups, writes Edward Fennell.

Or at least that is the view of boffins at London Metropolitan University, who published a report this week that sounds the alarm over a variety of issues, including immigration, funding and investment. Brexit has put a dampener on all, say the researchers, who interviewed more than a score of business founders in London's “tech city”, located in the capital’s now uber-trendy Shoreditch.

However, Michael Sippitt, chairman of Clarkslegal in Reading, now described as the heart of the UK’s Silicon (Thames) Valley, suggests that a more accurate picture on the investment impact of Brexit – especially on more mature businesses – will emerge only over a longer period. “We are expecting the low value of sterling to attract more overseas buyers of UK assets and businesses,” he said. “That is not necessarily good for the UK, as there is no certain increase of jobs or taxable earnings here.

“The most obvious opportunity is for overseas buyers to target UK companies with products or technical skill and experience that can be deployed in fast-growing economies like India.” Hence the prime minister’s recent flying visit to have a cup of char with her Indian oppo, Narendra Modi.

The UK has a great deal of expertise and innovation to offer to fast-growing economies, reckons Sippitt, but there may not be many British businesses that have the means to take such expertise to market in countries that they have not previously dealt with. “So for Brexit to benefit,” argues the lawyer, “the UK needs a lot more than talking about offering trade deals to faster-growing countries, it needs extra corporate competency in making business pay when working with very demanding and unfamiliar markets, whose agenda may not be to create wealth and jobs in the UK.”

Sippitt suggests that Brexit will result in a continuing reshaping of what the UK can successfully offer the wider world. He adds, however, that this might not benefit the whole country.

“If handled well, this is of course an opportunity for some who are doing the right thing to attract the interest of investors, but it would be very optimistic to think that general UK economic growth will follow. Most investment in market development and product or service delivery will be much closer to the overseas markets for cost, sustainability and perhaps political reasons.”

In Brief

Chinese partnership to bail out KWM on ‘condition of lock-ins’ – The Lawyer

Barristers face fee hike to plug Bar Council’s pension deficit – Law Gazette

Arnold & Porter and Kaye Scholer confirm $1bn merger – Legal Business

Vilify judges and you’ll slowly strangle liberty, argues Michael Gove – The Times


Anti-coercive behaviour law is useless without funding Emma Pearmaine

Divorces have always been fraught with a dangerous cocktail of our most powerful emotions. Yet recently fear of humiliation has taken centre stage as warring couples threaten to release intimate photos, emails and texts if they don’t get their way.

Whereas shared children used to be the favoured weapon of many, humiliating a partner online is becoming far more common than it was even five years ago. Although threatening a partner to release private data is a relatively new trend, campaigners have been focusing on the underlying issue for years – coercive control.

A review of 450 of my firm’s divorces from the beginning of this year revealed elements of coercive control in a staggering 15 per cent of cases.

Coercive behaviour encompasses myriad actions but they all serve the same purpose: to control a partner and prevent that person from seeking help. Threats that intimate photos, emails or text messages will be circulated online are cruel and effective.

Worryingly, a whole range of so-called spyware is now available that enables people to snoop into a person’s social media accounts, texts or photo gallery. Although some products have been designed to help parents legally monitor their children’s activities, others are taking advantage of the opportunity to invade their partners’ privacy.

Technology such as smartphone spying apps, social media networks and messenger services are providing the means for vindictive partners to copy and share inappropriate photos, work emails or private medical data.

That is a huge issue during divorce proceedings as victims find themselves under pressure to give in to their partner’s demands or face public humiliation. Lawyers need to be in tune with that possibility, and act where they suspect elements of foul play.

Revenge pornography officially became a crime in April 2015. Controlling or coercive behaviour followed under a law in December last year. But changing the law will only have a meaningful impact if the resources to use it are available.

Earlier this year, freedom of information requests to police forces across the UK revealed an extremely low rate of charging offenders under coercive control legislation. In fact, more than half of forces had charged fewer than three people during the first six months of the new law, and ten of those had not made a single charge.

Proving coercive control can be difficult, but perhaps advanced technology and the use of social media to threaten partners provides an opportunity for the other side as well.

Offenders are leaving a trail of their crimes in cyberspace. Lawyers and the police just need the necessary resources to track them down and bring them to justice

Emma Pearmaine is a partner and director of family services at Simpson Millar, a national law firm

Tweet of the Day

>@trussliz Your constitutional duty to defend Judges from unfair attacks (against which they can't defend themselve…

Emma Dixon @EmmaDixon_EU

Blue Bag

Truss ducks and dives – but for how much longer?

Palpable expectation on Wednesday at the offices of Simmons & Simmons as the City of London law firm hosted an event at which the lord chancellor was scheduled to speak. Liz Truss was on the agenda at a conference marking the role of women in the legal profession, where she presented the “inspirational women in law award”.

Truss’s support for gender equality has been well publicised. But more in the media glare at the moment is her approach to the row over attacks on the three judges who ruled in the High Court the other week that the government must put its plans to leave the EU before parliament. Truss stands accused of failing to defend the judiciary.

However, at the Simmons & Simmons-hosted event, she didn’t stand for long. Truss doled out the award, made a few remarks and did a flit before any inconvenient questions could be asked.

Her minders also arranged the arrival so Truss avoided having to deal with any uncomfortable contact with practising lawyers, or -- perhaps more importantly -- any nasty journalists. The audience was kettled in an ante-room until the justice minister was safely ensconced on stage and then herded in to hear her brief presentation.

The lord chancellor isn’t going to draw a line under this row by avoiding the punters. Either she will have to address the subject head on or start thinking about another portfolio – or perhaps a return to the back benches.

The trumping of women lawyers

The conference itself, entitled the First 100 Years Project, started in sombre mood, writes Linda Tsang. No one could ignore the elephant, or should that be the Trump, in the room.

So the title of the first session was changed to “Have women been trumped”, with the panel – including Dame Janet Gaymer, the employment law doyenne and former senior partner at the host law firm, Simmons & Simmons – discussing the treatment of women (with ex-lawyer Hillary Clinton an obvious case study).

At the end of the conference, Dame Jenni Murray, presenter of Radio 4’s Woman's Hour, summed up the proceedings. “It’s been such an interesting day,” she said. “I have never woken up at 6am before and burst into tears.”

Murray added: “The media treated Hillary Clinton appallingly, as did her opponent. But no matter how your ambition is regarded, go for it, if you fail, go for it again. Support and encourage both women and men – try to change the structures to make it easier for those coming up in the profession.”

The Churn

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

Teasdale takes top insurance lobbying role

Nigel Teasdale has been elected as the new frontman for the lawyer association that goes in to bat for insurance companies.

The DWF partner takes the reins as president of the Forum of Insurance Lawyers, where he succeeds Duncan Rutter, a partner at DAC Beachcroft. And as with so many lawyers, Teasdale has Brexit on his mind as he slips into the top slot.

“There was significant delay to reform in the lead-up to the referendum and uncertainty remains about its implications for the legal and insurance sectors,” he said. “In particular, there has been a delay in the reform around whiplash and the small claims track, and we hope there will be progress in the widening of fixed costs in the coming year.

“Brexit comes at a time when technology is presenting new challenges for insurers – for example around autonomous vehicles and telematics, and increasing cyber-risk.”

Fieldfisher takes over Brummie law firm

Fieldfisher, a mid-sized City of London commercial law firm, has tied the merger knot with Hill Hofstetter, a 19-partner Birmingham practice specialising in corporate, property and employment law.

Hill Hofstetter was launched eight years ago after it split from the UK office of Reed Smith, an international US firm. Chris Hill, the firm’s founding partner, said: “We wanted to increase our international capabilities and the [Fieldfisher] European focus made perfect sense for our European and global client base.”

Fieldfisher is currently ranked in the high 30s in the UK league table of law firms, depending on which table you are looking at. Its revenue for last year was estimated at £113.3 million.

On the greasy pole …

In the City, Chris Pratts moves to the partnership at Clyde & Co from Kennedys Law; while in Hong Kong, the London-based firm RPC has lured Jeremy Cunningham to its partnership from the local office of Mayer Brown, an international US law firm.

And back to the Midlands, Hogan Lovells, the transatlantic practice, has appointed partner Michael Gallimore to head its “legal services centre” in Birmingham. He will start at the firm’s “nearshoring” operation in January, taking over from Alan Greenough, who is retiring after having launched the centre at the beginning of 2015.

Closing Statement

Tuned in on the bench

Some magistrates were more defendant-friendly than others, writes James Morton in his reminiscences of the magistracy in the 1960s and 70s.

In Barnet, north London, for example, when a defendant asked to have a comment repeated, the chairman called him to the bench, leaned over and asked sympathetically: “Bit mutt are you?”

On the other hand, outside the capital in the home counties, the approach was less astute. The chairman of a Hampshire bench was totally bemused once, when during a long hearing the defendant put up his hand and asked: “Can I go and have a Jimmy, sir?”

James Morton is a former criminal law solicitor and now author