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The Times

Wednesday, July 20 2016

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


  • Lord Chief to head special court on Brexit challenge
  • Lawyers defend ‘inexperienced’ lord chancellor
  • Comment: Arrest of judges imperils rule of law in Turkey
  • UK legal services raked in £31bn last year
  • University of Law fights back with trainee lawyer deal
  • Prosecutors hail conviction in 34-year-old murder
  • Brexit countdown: Public procurement red tape
  • Dealmakers: Biggest green bond
  • Blue Bag diary: Poor second in psychopath league table

Tweet us @TimesLaw with your views.

Story of the Day

Lord Chief to head special court on Brexit challenge

A special court led by the most senior judge in England will hear a legal challenge over Brexit processes because of its fundamental importance, High Court judges said yesterday.

The case “raises constitutional importance and is a matter of national importance”, Sir Brian Leveson, president of the Queen’s Bench Division, said. He also made clear that whatever the court decides at a mid-October hearing before the Lord Chief Justice, an appeal can go direct to the Supreme Court in December for a final ruling.

Government lawyers told the court in London Theresa May had made clear that she did not intend to trigger article 50 of the Lisbon Treaty, which begins the withdrawal procedure, before the end of the year. That would give the High Court time to make a ruling and for any subsequent appeal to the Supreme Court before the formal process for Britain’s departure from the EU begins.

The judges were assured that if the government position changed, the parties bringing the legal challenge would be warned.

Government lawyers are expected to assert that the prime minister can use the royal prerogative to start the process of withdrawing from the EU and that no act of Parliament is needed. The challengers say that would be unlawful because only Parliament is empowered to authorise service of the article 50 notice and consequent withdrawal from the EU.

Earlier the court heard that racist, anti-Semitic and objectionable abuse had forced the withdrawal of several potential challengers over the Brexit process. Lord Pannick QC, of Blackstone Chambers, said that some prospective clients of his instructing solicitors, Mishcon de Reya, who are mounting the challenge, had withdrawn because of the “large quantity of abuse”.

He asked that the names of persons who had been intending to join the action but were no longer claimants should be redacted from pre-action court letters to protect their identities. Sir Brian, sitting with Mr Justice Cranston, warned that there was a real risk that individuals acting in an abusive and threatening manner would be guilty of contempt of court.

See Brexit Countdown below

News Round Up
Senior lawyers defend ‘inexperienced’ new lord chancellor

Leading legal figures have leapt to the defence of the new Lord Chancellor in the face of strong attacks that her appointment downgrades the justice system.

Lord Faulks, who has resigned as justice minister, and Lord Falconer of Thoroton, former Lord Chancellor, have both expressed concerns about Liz Truss’s lack of experience and seniority. They have questioned whether she has the clout and independence to stand up for the judges and justice system within government.

Yesterday, Bob Neill, the chairman of the Commons justice committee, expressed similar concerns, saying that he would be writing to her to seek an urgent meeting with his committee. It was not necessary for the Lord Chancellor to have a legal background but without either that, or senior experience of cabinet, it would be hard to fulfil the role, he said.

However, Ben Summerskill, director of the Criminal Justice Alliance, said: “Critics of the appointment of the first woman Lord Chancellor in 800 years do overlook the fact that the near-monopoly of male appointments to the judiciary during that time has not been an unqualified success.”

Dame Fiona Woolf, a former Law Society president and Lord Mayor of the City of London from 2013-14, said that Truss's appointment sent "a strong message about women in senior positions in the legal profession and the judiciary, which now recognise the need to make progress with the diversity and inclusion agenda".

And another former society president, Lucy Scott-Moncrieff, said that unlike her two laymen predecessors who “came to the role with no obvious interest in justice and our civil, family, and criminal legal systems, [Truss] spent two years on the justice select committee. I hope this shows that she will be as effective in heading the Ministry of Justice as she has been in rocketing through the glass ceiling that has reserved the job for men until now.”

Legal professional bodies also welcomed her appointment. Catherine Dixon, the Law Society’s chief executive, claimed Truss’s appointment was “a moment of significant change for the country”.

A source close to Truss told The Guardian newspaper that the adverse comments were a "reaction to a woman being given a powerful job over a profession still dominated by elderly white men”.

UK legal services raked in £31bn last year

British law firms turned in their fifth successive year of growth, with the profession racking up a record high fee total of nearly £31 billion, figures released this morning revealed.

But in a salutary warning for the top law firms in the City of London, the researchers said that the boom is being driven by mid-tier practices in the 25 to 50 bracket of the UK legal sector league table.

That 1.3 per cent rise in overall revenue came in conjunction with an 11 per cent increase in the value of legal services exports to another recording breaking figure of £3.6 billion. The legal sector’s trade surplus nearly doubled over the past ten years, which, according to the researchers, has helped partially to “offset the UK’s trade in goods deficit. The report found that the contribution to the UK’s economy from lawyers increased by more than 50 per cent over that decade.

In a report that oozed with a milk and honey tone, there were only passing references to future difficulties for the approximate 165,000 lawyers working across the UK in traditional law firms and barristers’ chambers.

However, the report – published by TheCityUK, a lobbying body for businesses in the Square Mile – acknowledged that 600 alternative business structure (ABS) licences have been issued, not least to three of the “big four” international accountancy practices. Other corporations with attached law firms under the ABS legislation include BT Group, Capita, Saga and the Automobile Association.

“These firms [are] aiming to offer a wider range of services to customers at a lower cost than traditional provides,” wrote the report’s authors ominously.

There were also warning signs for the larger City firms as the report showed that mid-tier and niche firms “continued their robust performance for the third year running”. Practices ranked between 25 and 50 in the UK by revenue on average had a 6 per cent rise in fee income, while those in the top 25 experienced a slight decline.

But generally the report claimed that the sun was shining today. It maintained that the UK is the world’s most international market for legal services and the “virtually unrestricted access it offers foreign firms” has resulted in more than 200 practices from about 40 jurisdictions establish offices in the City. And the Square Mile is the headquarters venue of two of the four largest international law firms, based on headcount.

The report also highlighted the UK’s leading role for dispute resolution – about 70 per cent of claims in the Admiralty and Commercial Courts in the first half of this year were international. In addition, more than 22,000 commercial and civil disputes were resolved through arbitration, mediation and adjudication in the UK last year.

Nonetheless, warned Chris Cummings, TheCityUK’s chief executive, traditional legal services providers should not be complacent. Changes to the structure of the legal profession were “accelerating the need for law firms to innovate and reconsider their offering and potential client base. We’re also seeing an increasing number of large firms choosing to locate operations in cities across the UK to take advantage of the skilled workforce and lower labour costs.”

Chambers told to offer flexible rent for parent barristers

Chambers are being encouraged to give rent reductions to barristers who are working part time in an attempt to make the bar more family-friendly.
Bar chiefs have published a “flexible working guide” for heads of chambers, which suggests policies designed to help lawyers with young families.

The advice highlights that many chambers are facing harsh financial pressures and as a result they “require certainty over income generated through rent and expenses”. According to the Bar Council of England and Wales, which produced the guidance, such a reaction “can make it difficult to work flexibly”.

The guide acknowledges that chambers use a variety of rent models, but it maintains that a flexible approach can be taken to all of them. For example flat rates can be reduced, and the percentage model can also be manipulated to give a better deal to those working part time.

“The Bar needs to retain talent and some accommodation for those who need to work flexibly to meet their personal needs can make financial sense as well as being the right thing to do,” said the Bar’s chairwoman, Chantal-Aimée Doerries, QC, launching the guidelines.

“The impact of flexible working on income also acts as a barrier where barristers are required to make a minimum or flat rate rent contribution,” Doerries said. “There may be a number of ways chambers could adapt rent to accommodate flexible working.”

Prosecutors hail conviction in 34-year-old murder

Senior prosecutors hailed the conviction of a murder 34 years after the crime as evidence that serious offenders can be “brought to justice” regardless of how much time passes.

James Warnock, 56, was sentenced on Monday at the Old Bailey in London to life imprisonment with a minimum term of 25 years for the murder of Yiannoulla Yianni,. 17, in London in 1982. Warnock, who was convicted last week, was also sentenced to 20 years imprisonment for raping the victim.

Police investigations after the murder resulted in no charges. But in August 2001 the case was formally re-opened as a result of advances in DNA techniques. Warnock was arrested for an unrelated matter in December 2015 and his DNA matched samples from the crime scene.

“This conviction should send a strong message that people who commit such serious crimes can be brought to justice many years later,” said Aisling Hosein, the London reviewing lawyer for the Crown Prosecution Service. She said that the CPS was “committed to working with our police partners to ensure that perpetrators are held accountable for their actions”.

University of Law fights back with trainee lawyer deal

Europe’s biggest law school has cut an exclusive training deal with a London legal firm that the beleaguered institution will hope signals a return to form after losing a string of contracts to its arch rival.

The University of Law announced yesterday that it had signed Fladgate, one of the few prominent commercial firms remaining in the West End of London, to a three-year deal to be the sole provider of course for the firm’s trainees. Starting this September, all those offered a training contract with Fladgate will do their graduate diploma in law and legal practice course training at the university’s Moorgate branch in London.

However, the firm offers only about six training contracts annually, so the deal will go only a short distance towards covering the gap left in the university’s revenue caused when several big players ditched the institution. A little more than a year ago – and just after the university was sold to Global University Systems – the London office of Baker & McKenzie moved its training contract BPP University law school.

The US-based firm followed earlier moves to BPP by its English magic circle counterparts Allen & Overy and Clifford Chance. Other firms, such as DAC Beachcroft, have also swapped ULaw for BPP. Freshfields Bruckhaus Deringer has been with BPP for some time, leaving Linklaters as the only London magic circle law firm on the books at the university.

Brexit countdown – legal update as leave approaches

Public procurement red tape – who to blame?

Public procurement presumably did not loom large in the minds of punters as they filed into polling booths on EU referendum day last month but in a post-Brexit world it will be a legal minefield nonetheless, writes Edward Fennell.

Indeed, it is “one of the areas of UK law most exposed to the consequences of the UK’s decision to leave the EU,” says Chris Tayton, partner at Clarks Legal, a Thames Valley and London law firm. According to Tayton, public procurement was “the type of legislation that many Brexiteers took most offence over – [seeing] them as diktats from unelected EU officials in the European Commission telling public authorities in the UK how to administer and award public contracts”.

However, and somewhat ironically, the UK had a hand in their formulation and discretion over the manner of their implementation into UK law through the Public Contracts Regulations 2015, the Utilities Regulations 2016, to name but two legislative instruments. Which raises a curious question: when the Leave campaign argued that that EU procurement rules cost the UK taxpayers £1.6 billion a year and wasted 1.9 million days in red-tape delays, who was really responsible? Brussels or London?

Fault probably lies in part with both is the frustrating answer. But as Tayton says: “The European Commission’s own report on procurement within the EU cited the UK’s procurement regime as the longest and most expensive of any member state, apart from Greece and Malta – so perhaps the UK’s implementation of the regulations should take some of the blame.”

Moreover, given Whitehall's love affair with gold-plating, it looks as though the situation isn’t going to change much when (and if) the great bonfire of Brussels red tape takes place. Or as Tayton puts it: “If the UK wants to continue accessing foreign procurement markets and allowing foreign businesses to compete in its own market, then it is likely that those procurement rules will be identical to or at least very similar to those presently in place.”

In Brief

Soldiers’ families raise £40,000 to sue Blair over Iraq

Families of Britons killed in Iraq have raised more than £40,000 in a day in their effort to take legal action against Tony Blair over the findings of the Chilcot report, writes Sean O’Neill.

The families launched a crowdfunding campaign on Tuesday morning to finance a legal opinion with a view to preparing a complaint against the ex-prime minister and other former government ministers and officials for misfeasance in public office. Through the Crowd Justice website, the campaign hopes to raise up to £150,000 to mount a High Court action over the findings of the report into the conflict in Iraq from 2003-09.

Plus ...

  • Snoopers’ charter challenged in Europe – The Times
  • Refusal to marry the mother of his children costs developer his house – The Times
  • CMS circles Olswang in merger bid – The Lawyer
  • Top UK law firms could lose out on Brexit trade work – Legal Week
  • Claims companies rapped by ad watchdog over settlement boasts – Law Gazette

Arrest of judges imperils rule of law in Turkey Kristin Hausler

The arrest of close to 3,000 judges and prosecutors after the failed coup attempt in Turkey is putting the rule of law and the implementation of human rights at further risk.

Several legislative improvements have been made over recent years. But new security regulations – such as the anti-terror law, the new Turkish penal code and the law on the powers and duties of the police – puts at risk the implementation of human rights and the rule of law in the country.

Indeed, the anti-terror law and the penal code have been used to prosecute reporters, editors, political rights activists, lawyers, elected officials and students for exercising their right to freedom of expression.

President Erdoğan has now hinted at constitutional changes that would create an executive-style presidency, where greater decision-making power would rest with his office, including providing the president with quasi-legislative powers, such as the ability to rule by presidential orders.

There is also concern over a lack of effective political opposition in Turkey, where the more serious threats to the ruling AKP party have come from extra-parliamentary forces, such as the military, and the judiciary.

And there is concern over the AKP’s possible use of the courts to diminish the influence of its opponents. In 2010, while constitutional amendments attempted to make the judicial appointment process more representative, independent and democratic, those changes also allowed the president to play a direct role in the appointments. That meant that four members of the high council of judges and prosecutors are now directly appointed by the president.

The legality of the recent arrests can certainly be questioned. Turkey, as a member of the European Convention on Human Rights, must respect its article 5 on the right to liberty and security. It stipulates that must be lawful, which is, for example, the case when there is reasonable suspicion that the person in question has committed an offence.

Everyone who has been arrested should therefore be informed promptly of the reasons for their arrest and of any charge against them. In addition, there have been reports of lengthy pre-trial detention of up to ten years for terrorism related offences and five years for other offences in Turkey. Therefore, those arrested are at risk of having the duration of their pre-trial detention being unlawfully extended.

Over the past few days, it has also been reported that President Erdoğan is ready to reinstate the death penalty “if the people demand it”. The Turkish constitutional court has upheld the validity of the 2004 legislation abolishing capital punishment, and Turkey has also ratified the European Convention on Human Rights protocol abolishing the death penalty.

The attempted coup therefore jeopardises the rule of law, the implementation of human rights and the international legal obligations of Turkey. The country has a blotted copybook when it comes to the rule of law, but it must recognise that a return to the past is a major step back – and from which it may be difficult to move forward.

Kristin Hausler is a senior research fellow at the British Institute of International & Comparative Law and the author of its report on the rule of law in Turkey

Tweet of the Day

Hmm, what's different about Truss compared to Gove and Grayling... let me just think a minute...

Naomi McAuliffe @NaomiMc

Blue Bag

Lawyers a poor second in psychopath league table

In the Independent’s evolution from traditional serious broadsheet newspaper, to tabloid to online only competitor with Buzzfeed, this sort of list story is somewhat predictable: “The 10 professions with the most psychopaths”.

Sadly, just missing out on the top slot, according to the site – which sourced this gem to Kevin Dutton, a research psychologist at the department of experimental psychology at Oxford University – were lawyers.

Corporate chief executives take No 1 honours but the legal profession, according boffin Dutton, comes a close second. The defining characteristics of psychopathy, according to the report, include self-confidence, egocentricity, fearlessness, cold-heartedness and oodles of charm.

Sound like the senior partner or head of chambers? The Brief trusts that the UK’s legal profession will try harder and top the table next year.


Biggest green bond 'heralds environmental era' for China

One glance at the smog-choked skies of Beijing and “green” is not the word that comes to mind. But a senior English solicitor maintains a deal that closed last week puts China at the forefront of green finance and environmental projects.

The Bank of China cut a $3 billion deal for the largest ever green bond, the proceeds of which will be used for a variety of “qualifying green purposes” as specified by domestic government bodies and global bodies organisations such as the International Capital Markets Association.

The deal “shows the commitment of the PRC government to green finance and so to green projects which, given China is the second largest economy in the world and perhaps the economy with the greatest green challenge, is an important step forward,” Andrew Carmichael, a capital markets partner in the Hong Kong office of Linklaters, the firm that acted for the bank.

“It is the first step on a long-term major PRC strategy to raise vast sums for green projects over the next 10 years,” Carmichael told The Brief. He said that the most difficult element of the month-long process involved combining “the established practices of Bank of China as a frequent bond issuer with the special features of green finance and to establish a framework which was not too restrictive or burdensome for the bank whilst meeting the green criterion and reporting needs of investors”.

The full legal team sheet for the deal: Linklaters advised Bank of China on English, Hong Kong, Luxembourg and New York law, and JunZeJun Law Office on PRC law. Advising the joint lease managers were Clifford Chance (English law) and Jingtian & Gongcheng (PRC law).

Elsewhere in the deal room …

Japanese shareholders may not have been all that chuffed when SoftBank, the Tokyo telecommunications conglomerate, stumped up £24 billion for ARM Holdings, but the lawyers were pretty pleased with themselves.

SoftBank was reported to have lost more than a tenth of its market value after the news broke of its purchase of the British semiconductor business. But sure as eggs is eggs, the law firms involved will be popping the Bolly corks.

Advising SoftBank was Morrison & Foerster, a US law firm, led by two partners: Graeme Sloan in London and Ken Siegel in Tokyo.

Another US firm, White & Case, advised Japanese investment banking and securities firm Mizuho Securities, which was SoftBank’s financial adviser. While Slaughter and May, the English magic circle firm, and Davis Polk & Wardwell, another US firm, held the hands of ARM as its leadership team counted the dosh.

Quote of the Day

“In this Indian summer of my existence, after being successively a child, a schoolboy, a Royal Engineer, an undergraduate, a barrister, a QC, a judge and a mediator, I have embarked on an unexpected ninth life as a legal blogger, with nearly 4,000 followers.”