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The Times

Tuesday, April 4 2017

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


  • Janner’s QC son calls on abuse inquiry counsel to quit
  • Ex-Whitehall law chief defends control orders
  • Cohabiting couples believe in common law marriage
  • Abolish health insurance rule for EU citizens, say lawyers
  • Trademark theft rife, say global executives
  • Home Office dragging feet over children of ‘extremists’
  • Bar regulator takes on ABS licensing
  • Comment: Railroaded to online convictions
  • The Churn: US firm partner takes helm of insolvency association
  • Blue Bag diary: McFarlane hot tip to lead family bench
  • More Blue Bag: Truss and Lincoln’s Inn make up

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

Story of the Day

Janner’s QC son calls on abuse inquiry counsel to quit

The son of the late Lord Janner (pictured) has called for the withdrawal of one of the counsel to the Jay inquiry over an alleged conflict of interest.

Daniel Janner, QC, says he objects "in the strongest possible terms" to the continued acceptance of the brief for the inquiry by Matthew Hill, QC.

Hill was recently appointed to the inquiry into child sex abuse as counsel along with Andrew O'Connor, QC, to a strand of investigations that includes allegations against Lord Janner. However, Janner has written to Hill's chambers, One Crown Office Row, to complain that the chambers is already acting in compensation claims against his father's estate in the High Court.

He points out that the chambers "has a full team [of three barristers] working against me and my sister who are the executors of my late father's estate, in relation to contested proceedings in the High Court. The public perception of this clear conflict of interest will raise serious concern."

Janner has also written to the inquiry itself and is threatening to call for Hill to stand down, or recuse himself, when there is next a public hearing.

The Times has seen a response to Janner from Philip Havers, QC, the head of One Crown Office Row. Havers wrote: “It is by no means unusual for different members of chambers to be instructed on opposite sides in the same case or to represent different parties in connected litigation and we have a well-established system of information barriers within chambers to insulate the relevant members of chambers in the course of such litigation. In the circumstances I must reject your complaint.”

Lord Janner died from complications linked to Alzheimer's disease in December 2015 while awaiting a "trial of the facts" on 22 sex offence charges. His son will be representing the family at the inquiry, along with another barrister, Rupert Butler, a senior-junior from 3 Hare Court.

Janner maintains that the allegations are false and that the inquiry investigation into his father is a breach of due process as Lord Janner cannot respond. His son says: "We are the only non-institution being investigated by the inquiry."

In January Brian Altman, QC, a former Old Bailey prosecutor, was named lead counsel in place of Ben Emmerson, QC, who resigned in September last year a day after he was suspended amid differences with the chairman, Alexis Jay, over the scope of the inquiry.

The inquiry was announced in July 2014 to examine claims of child abuse made against public and private institutions in England and Wales.

News Round Up
Ex-Whitehall law chief defends control orders

Whitehall’s former top lawyer has defended the now defunct control orders as a legitimate test of the “high watermark” of the law for controlling suspected terrorists.

Sir Paul Jenkins, the former Treasury solicitor and head of the Government Legal Service, claimed that the raft of legal challenges to the orders did mean they were inherently wrong.

“The government was perfectly entitled to establish where the high watermark of the law was in relation to controlling suspected terrorists, who you can’t put through the normal justice processes,” said the barrister, who left Whitehall in 2014.

Speaking to the blog Legal Hackette's Brief, Jenkins said: “We came out with what we thought we could do and the court said ‘no’. So gradually we got to the point where we had to give up on control orders and we came up with TPIMS [terrorism prevention and investigation measures], which never really worked.”

He dismissed criticism that the government had exceeded the rule of law. “The very hard-edged, campaigning lawyers think that’s an unacceptable approach and that one has to be purer than pure about these issues. But you’ve got to have an element of pragmatism about this if you’re the government,” he said.

“It’s easy for campaigning lawyers to say ‘this is outrageous’ and for politicians to shout about it. But if you’re a government minister you’ve got a duty to try and do your best.” Espousing the same principle, Jenkins also backed Theresa May and her government’s recent decision to take the Brexit article 50 fight to all the way to the Supreme Court.

Since leaving the civil service, Jenkins has joined Matrix Chambers in Gray’s Inn, where he specialises in regulatory work.

Cohabiting couples still believe in myth of common law marriage

Cohabiting couples continue to wrongly believe in the myth of common law marriage, a new poll has shown.

Despite having been abolished in the 18th century, up to a third of cohabiting couples still think that common law marriage provides them with similar rights to married couples.

A YouGov survey of 1,000 cohabiting couples found that nearly three quarters had no idea of what provisions for financial support would be available to their children if their relationship broke down. Only 2 per cent of cohabiting couples had a legal agreement in place while just 14 per cent owned their property as tenants in common.

Still, cohabiting couples clearly sense that their relationships have second-class status compared with those who are married – three quarters of respondents wanted to see a change in the law to give them enhanced rights.“Many cohabiting couples think they are protected when they buy or own property and there is an assumption the law provides a fair financial remedy if a cohabiting relationship ends,” said Alison Bull, a partner at the law firm Mills & Reeve, which commissioned the survey. “However, this is often not the case.”

Abolish health insurance rule for EU citizens, say lawyers

A large majority of Europeans seeking permanent residency in the UK in the run-up to Brexit face rejection because they have not complied with health insurance requirements, lawyers said yesterday.

It is understood that as many as 70 per cent of EU nationals have failed to take out comprehensive sickness insurance when they arrived in the UK. The insurance is required for those applying for permanent residency and applications can be refused if it is not in place.

Students and so-called self-sufficient EU nationals are said to be the most vulnerable as they are not likely to have been informed of the rule.

“For people who meet all other requirements for permanent residence, it is appalling that their applications are rejected because of this technicality,” said Emma Brooksbank, a partner at Leeds law firm Simpson Millar.

She said that the separate insurance requirement was a bureaucratic nonsense. “The government should seriously consider retrospectively revoking the requirement to hold [insurance] as a student or self-sufficient person,” she said. “As it stands, the country risks losing some of its most qualified graduates to countries that will make them feel more welcome.

“There is a great deal of fear and anxiety amongst European nationals. . . I am confident in telling them not to worry about deportation but sad that their applications for permanent residence will be rejected en masse over a technicality that makes no sense in practical terms.”

Trademark infringement rife, say global executives

Four-fifths of international corporate executives say that trademark infringement is on the rise, with about two-thirds saying their businesses have been directly attacked, according to new research.

More than half of the executives surveyed said their businesses had sued alleged infringers in an attempt to protect their brands.

Part of the rise, according to the analysts, was down to the steady increase in trademark activity. More than 60 per cent of respondents had launched a fresh trademark in the past year and 66 per cent said they would be doing so next year.

The survey also uncovered a blasé attitude towards monitoring trademarks once they had been launched. Only 20 per cent of respondents actively watch more than 76 per cent of their trademarks, while half watch only between 26 per cent and 75 per cent of their portfolios.

Some 440 senior executives in the UK, US and several European countries were surveyed by CompuMark, a trademark research company.

Home Office accused over cases involving children of ‘extremists’

Amber Rudd, the home secretary, must act faster when family court lawyers working on cases involving the children of suspected extremists need information, a High Court judge has suggested.

Mrs Justice Pauffley said that the government’s legal advisers must respond more swiftly to information requests.

The judge raised concern after council social workers in east London asked her to make decisions about the future of a child whose father is a suspected Islamist extremist. A barrister representing Tower Hamlets council, which has welfare responsibility for the child, had complained of “inaction” by Home Office lawyers.
Sarah Morgan, QC, of 1 Garden Court chambers in the Temple, said they had not complied with “disclosure orders” made months ago.

"Doubtless the government legal department is an overstretched organisation with many competing calls upon the time of those who work within,” said the judge, according to the Press Association. “However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action."

Mrs Justice Pauffley added: "Whatever else results from this hearing, it is my hope that the secretary of state for the home department will be more rapidly and decisively responsive to the family courts’ requests for engagement.”

Bar regulator takes on ABS licensing

England’s legal profession took another leap towards fusion yesterday when the body that regulates barristers began licensing legal services businesses that include solicitor and non-lawyer partners.

The move will put the Bar Standards Board, the barristers’ watchdog in England and Wales, on par with the body that regulates solicitors. The Solicitors Regulation Authority has for several years been licensing alternative business structures, which have included solicitors, barristers and non-lawyers.

For the past two years, the BSB itself has been able to regulate “entities” that are owned by barristers and solicitors. Yesterday’s move means it will now be able to regulate ABSs that include non-lawyers.

The BSB said it was issues an updated version of its rules handbook, which sets out the position regarding ABS licensing.

“Although we are cautious about the number of ABSs that may choose to be regulated by us, we believe this development encourages further innovation in the provision of legal services,” said Oliver Hanmer, the board’s director of regulatory assurance.

“Being a specialist in regulating advocacy-based services, our announcement today allows barristers and other lawyers to partner with other business professionals to bring new skills and fresh perspectives to this sector of the market.”

In Brief

Dechert sues client Ikon Finance over fees – Legal Business

King & Wood Mallesons closes Riyadh office – The Lawyer

Ex-Reed Smith partner's suicide highlights anxiety in big law mergers – The American Lawyer


Railroaded to online convictions Peter Binning

Rail fare evaders are soon to be dealt with in virtual courts, pleading guilty online and paying fines instantly, thanks to the Prisons and Courts Bill, which MPs debated last week.

The rationale behind the proposals is that dealing with fare dodgers in virtual courts will encourage early guilty pleas and reduce the costs incurred in having traditional hearings.

However, what many people may not realise is that by doing pleading guilty online, they will receive a criminal conviction, even for committing the relatively minor offences that they might be inclined to dispute.

For example, people can be found guilty of a railway bylaw offence simply by not having a “valid ticket” when boarding a train. Unnervingly, there is no need for the rail company to establish that an individual intended to evade the fare or indeed was acting dishonestly when committing this offence.

More serious offences, such as travelling with intention to avoid payment of the fare, must be handled with extreme caution. Cases can even go as far as offences being alleged under the Fraud Act 2006, where the sums are large and the conduct has been going on for an extended period.

Offences under railway bylaws are generally non-recordable, but even a conviction for a non-recordable offence will normally remain on an individual’s police record forever. That could have an impact those working or wanting to embark on a regulated professional career, where an enhanced disclosure check is required.

Convictions for offences requiring intention will generally be recordable and therefore will emerge on a standard disclosure check. The impact of such convictions, even at a minor level, should not be taken lightly.

A conviction for rail fare evasion has the potential to affect a person’s ability to work in certain fields, as demonstrated in the case of Jonathan Burrows, a former managing director of Blackrock Asset Management, who was banned for life by the Financial Conduct Authority from any senior role in the financial services after being exposed as an extreme fare dodger.

The right to remain in this country for those who are not British citizens can also be affected by convictions.

When the bill is enacted, people falling foul of the law must remember that the consequences can be serious. The number one rule is: do not panic and take legal advice at the earliest opportunity.

Do not ignore correspondence and keep in mind, the quick fix of a digital plea may not be the end of the matter.

Peter Binning is the co-founding partner of Corker Binning, a London law firm; Jemma Sherwood-Roberts, a senior associate at the firm, contributed to this article.

Tweet of the Day

Before "Advocate" comes "Adjournment." For those pupils starting their 2nd 6 today, no skill is more vital than applying for an adjournment.

Matthew Scott @Barristerblog

Blue Bag

Truss and Lincoln’s Inn make up

Liz Truss and the grand poobahs at Lincoln’s Inn appear to have kissed and made up as the lord chancellor and justice secretary has now been made an honorary bencher.

Ministry of Justice officials were forced to confirm last November that the ceremony commemorating Truss’s installation as an honorary bencher had been postponed. Cynics pointed out the move came only a fortnight after Truss had been accused of not robustly defending the High Court judges who were attacked by some in the media as “enemies of the people” for ruling against the government in the first Article 50 judgment.

But now senior sources at Lincoln’s have confirmed that Truss has been made a bencher. Yesterday the justice secretary, who is not a lawyer, was “introduced” to the inn by none other than Lord Neuberger of Abbotsbury, the president of the Supreme Court, who is also Lincoln’s treasurer.

A senior Lincoln’s official said that the “the lord chancellor spent some time before lunch meeting young pupil barristers and tenants and hearing about the Inn's educational programmes”.

Happy families.

Lord Justice McFarlane is hot tip to lead family bench

Turf accountants around the Inns of Court have significantly narrowed the odds on Sir Andrew McFarlane as the inside runner to take over as president of the family division of the High Court next year.

Lord Justice McFarlane was appointed as a Court of Appeal judge in 2011. Before that, he sat for five years in the family division of the High Court and was the legal member of the government’s family justice review panel. All of which has made him the bookies’ favourite to succeed Sir James Munby when he stands down at the age of 70 in July 2018.

Nonetheless, Lord Justice McFarlane will divide opinion among family lawyers if he is appointed. Some see him as a progressive, having supported greater media access to the family courts.

Others queried his move to bring a 26-week limit for care application processing when he was on the family justice review. Some have struggled to comply with the new timetable even though it has been widely applauded as helping children. On the one hand he looks conservative, but on the other he is not afraid to demonstrate a radical side. Sounds a bit like the incumbent.

The Churn

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

US firm partner takes helm of insolvency association

A partner at the London office of US law firm Weil, Gotshal & Manges has taken over the leadership of a group that lobbies for insolvency lawyers.

Adam Plainer, the head of Weil’s business finance and restructuring group, started a stint as president of the Insolvency Lawyers’ Association on April 2. He succeeds Euan Clark, a litigation partner at Linklaters, one of the City of London’s “magic circle” firms.

Meanwhile, back in the law firm transfer market, Kevin Robinson has joined the partnership at London firm Howard Kennedy. The white collar crime specialist joins from the London office of US firm Morgan Lewis.

Deug Rong Lee has jumped from Clyde & Co to its marine insurance rival Kennedys; he joins the London firm as a partner.

Jonathan Coad, a leading media law specialist, has moved to Keystone Law from London firm Lewis Silkin.

Kelly Greig, a private client specialist, has left Clarke Willmott’s Southampton office to join the partnership at national law firm Irwin Mitchell.

Forsters, a private client law firm in London, has gone down the old school route by promoting one of its existing lawyers to its partnership table. Guy Abrahams has been with the firm for seven years.

Quote of the Day

“I started out saying that I was going to become a lawyer and use the law for the purpose of changing things. And that’s what I have done.”