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The Times

Friday, November 18 2016

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

Breaking: Teenage girl won landmark cryo-preservation court order

A 14-yaer-old girl who died a month ago from a rare form of cancer was granted a landmark court order smoothing the way for her body be scientifically frozen after death, it can now be revealed. The girl – who cannot be identified – had been through a round of unsuccessful hospital treatment that was stopped last August.

Mr Justice Peter Jackson sitting in the family division of the High Court granted an order ensuring that there was no delay or legal difficulty in beginning the cryo-preservation process immediately after her death.

Today

  • Relief for families of dementia deaths in care
  • Gove sparks row over advocacy quality
  • Phone hacked celebrities collect £500,000 in pay-outs
  • Top law school banned from using advert
  • Lawyers split over whiplash damages cap
  • Brexit countdown: Regulation for the chemical heads
  • Comment: Action needed over piecemeal transgender laws
  • Blue Bag diary: Lady justices in the picture
  • More Blue Bag: It’s lonely being No 1 in insurance

Plus the new Brief Premium ...

  • Ministers must act on gender pay gap reporting, says Cherie Blair, QC
  • Finance focus: Banking on change -- Trump rips up reforms; UK in-house lawyers braced for regulation

Tweet us @TimesLaw with your views.

 
Story of the Day

Relief for families of dementia deaths in care

Families of dementia sufferers who die of natural causes in care homes will no longer have to wait for an inquest before they can bury or cremate the deceased after ministers agreed to reform the law.

The government supported an amendment to the Policing and Crime Bill in the House of Lords, which means that a person who dies while subject to a deprivation of liberty order in hospital or care will no longer be considered to have died in custody or state detention.

Deaths occurring in custody or detention trigger an elaborate legal process.

The move is a victory for Ann Coffey, the Labour MP for Stockport, who has long campaigned for reformed legislation. Under the current law, even if a person died of natural causes the police had to attend to sit with the body until an ambulance arrived and relatives are required to visit a mortuary to identify the body again. And an inquest must take place.

It was argued that the current rules caused unnecessary anguish to families, delays in funerals and was costing the taxpayer millions.

Reacting to the government’s move, Coffey said: “Something had to be done to stop this profound distress to relatives. When loved ones die in care, relatives should not have their grief exacerbated by this sledgehammer approach.

“However the system of deprivation of liberty orders itself remains an expensive bureaucratic nightmare that is diverting resources from frontline care at a time when there are huge demands on the social care budget.”

 
 
 
 
News Round Up
Gove sparks row over advocacy quality

Criminal law barristers have been accused of running “unsubstantiated whispering campaigns” and unfairly appealing “to their powerful friends in government” in their on-going battle with solicitor-advocates.

Michael Gove (pictured), the former lord chancellor and justice secretary, triggered an internecine professional slanging match in a speech this week. Gove said there was “no doubt that, individual for individual, barristers provide a better service” relative to solicitor-advocates in the criminal courts.

His broadside elicited a furious response from senior solicitors. Will Richmond-Coggan, the chairman of the Solicitors’ Association of Higher Court Advocates, lambasted the bar for using “protectionist tactics of trying to crowd out the newcomers with unsubstantiated whispering campaigns and appeals to their powerful friends in government”.

The solicitor said that barristers “want to impose artificial barriers to entry for any who seek to threaten their historic monopoly. The fruits of those campaigns can be seen in Mr Gove’s words, as he denigrates solicitor-advocates as second class, and seeks to suggest that only barristers should be entitled to represent defendants in Crown Court, or serious magistrates’ court, cases.”

Richmond-Coggan went on to say it was “no surprise that the Bar and their mouthpieces in government would seek to harken back to an age where upstart solicitors knew their place, and existed purely to ferry a steady stream of golden guineas into the hands of the barristers’ clerks – barristers’ hands being too rarefied to be sullied with anything so vulgar as money”.

However, he remained confident that the “established status quo” would have to give way and that barristers would ultimately recognise “that times change even for them. Solicitor advocates have considerable experience of standing firm in the face of discrimination and prejudice, and they are here to stay, whether the bar likes it or not”.

Phone hacked celebrities collect £500,000 in settlements

Television personalities, actors and footballers were among 29 celebrities who collected a total of more than £500,000 in the latest awards of damages for illegal phone hacking in the High Court yesterday.

The stars – including the actresses Abi Titmuss and Jayne Walton, the Eastenders actor Steve McFadden, the TV personality Natasha Kaplinsky and the former Premier League footballer Sol Campbell – were the latest of many to accept damages from Mirror Group Newspapers (MGN) over accessing of their voicemails.

The only figure mentioned in court was the £40,000 paid to Walton. The other 28 settlements referred to either “substantial” or just “damages”. Others include the actor William Mellor, well known for his roles in Hollyoaks, Casualty and Two Pints of Lager and a Packet of Crisps; and the actress Sarah Parish, who appeared in Dr Who, Hearts and Bones and Cutting It.

Kim Waite, the solicitor for MGN, offered the publisher’s “sincere apologies” to all 29 claimants and said the company accepted that the systematic interception of voicemail messages and the procurement of private information should never have happened.

She told Mr Justice Mann, who approved all the settlements, that the publisher of The Daily and Sunday Mirror and The People “deeply regrets the wrongful acts” and the “damage and distress” caused. They undertook not to do the same in the future.

The awards are the latest of dozens that have been awarded by the newspaper group.

Top law school banned from using advert

Europe’s biggest law school has been barred from using an advertisement that claimed its graduates routinely started on salaries of £54,000 and had “huge earning potential”.

A ruling from the Advertising Standards Authority found that there was not “adequate evidence” to support the claim made by the University of Law in national press and online advertisements. The university was also reprimanded for making the “misleading” claim that it was the UK’s “leading law school”.

The ruling comes at a difficult time for the university, which within the last few weeks has appointed its fifth chief executive in the past two years. Stelios Platis, who recently suddenly departed from the law school’s top slot, has been replaced by Andrea Nollent, according the law school’s owners, Global University Systems.

Commenting on the finding regarding its advertisement, a university spokeswoman said: “While we are disappointed by the ruling, we have taken on board the comments from the ASA and are working closely with them currently to agree the best way forward.”

Lawyers split over whiplash damages cap

Law firms acting for insurance companies predictably spent much of yesterday fawning over ministers after the government proposed to crackdown on the “compensation culture” by capping – or abolishing – whiplash claims.

The announcement by the Ministry of Justice split the legal profession along claimant and defendant lines, with the language varying from the diplomatic to the hysterical.

In the former camp was the Forum of Insurance Lawyers, the body that represents firms acting for insurance companies. “There is a great opportunity now for significant reform,” said the forum’s president, Nigel Teasdale, a partner at DWF. “We need to focus on getting the detail right to deliver a workable, effective new process.”

Mark Hemsted, a partner at Clyde & Co, a leading defendant law firm, continued with that theme of restrained welcome. "The overall thrust of the proposed reforms is to move towards lower cost claims and, as a consequence, for there to be fewer claims,” he said.

However, Hemsted did hint that the proposals came with an element of controversy. “With the potential for smaller payouts and more use of the small claims court,” he said, “claimant solicitors might find this work doesn't pay and therefore you might get new entrants, such as the claims management companies into this space. Either that or individuals will be unrepresented in court, something that won't appeal to the majority of people."

That was not even the half of it, according to some claimant lawyers. “Once again the rights of injured people are the target and it is hugely unjust,” railed Vidisha Joshi, a partner at Hodge Jones & Allen, the London law firm. “Capping compensation at such low levels will mean victims are left out in the cold. Our firm will do all it can to counter this heavy-handed approach by government.”

And even though claims management companies might benefit, at least one opposed the proposals, describing them as “far worse than anyone could have anticipated”.

Qamar Anwar, the managing director of First4Lawyers, continued by claiming that the reforms would “do nothing other than to benefit the insurance industry fat cats at the expense of innocent accident victims”.

Caught in the middle was the Law Society, which has members with skin in both sides of this game. However, the representative body plumped for backing claimant solicitors, as its president said that the proposals would “completely undermine the right of ordinary people to receive full and proper compensation from those that have injured them – often seriously – through negligence".

Robert Bourns added that the government’s plan for a five-fold increase in the small claims limit to £5,000 “will stop people getting the legal advice they need. “People may be tempted to try to bring claims themselves without expert advice. This will clog up the court system creating a David and Goliath situation where people recovering from their injuries act as litigants in person without legal advice – those defending claims can often afford to pay for legal advice.”

See Blue Bag below

Brexit countdown – legal update as leave approaches

Regulation for the chemical heads

Look no farther than the chemicals industry for an example of how the UK’s departure from the EU involves minute detail, writes Edward Fennell.

With chemicals much of the regulating law originates from Brussels. This includes in particular the single market-related REACH – that is the regulation on the registration, evaluation, authorisation and restriction of chemicals, for the uninitiated – which is directly applicable in the UK, without the need for any domestic implementing legislation.

And there are other examples from the alphabet soup bowl – CLP (regulation on classification, labelling and packaging of substances and mixture) and the BPR (biocidal products regulation).

As Elizabeth Shepherd, a partner at Eversheds, points out, given that the chemicals industry is the UK’s largest manufacturing exporter, contributing £60 million a day to the economy, the terms of the exit and any transitional period are critically important.

“The government increasingly recognises that certain regulations cannot simply be rolled forward into UK law when we leave the EU,” she says. “Whether and how REACH, CLP and the BPR are to be implemented in the UK is subject to wider questions including the UK’s place, if any, in the single market, and the UK’s ability to rely on EU institutions to perform certain functions, even in the short term, post-Brexit.”

Much of EU law that regulates the chemical sector, Shepherd explains, has dynamic elements that require the involvement of Brussels institutions, notably the European Chemicals Agency (ECHA) in the case of REACH, and the European Commission in the case of the BPR.

“This will not be available post-Brexit and we run the clear risk of zombie laws, which the UK cannot apply or interpret effectively. Detailed consideration is needed of the changes which will be required, not least to introduce the Health and Safety Executive – or another body – in place of the ECHA. As part of the exit negotiations, the UK may look to incorporate some transitional provisions into the withdrawal agreement, allowing a continued role for ECHA at least in the short term.”

Another significant concern, says the Eversheds team, is that if the EU refuses to recognise UK REACH-equivalent registrations, additional registrations will need to be made by importers. “This may result in EU customers choosing an alternative supplier rather than facing additional burdens themselves under these regimes."

Keeping disputes in English courts

The best way of ensuring that contractual disputes are heard in the English courts before and after Brexit is for parties to continue to include dispute resolution clauses that provide for the Courts of England and Wales to have exclusive jurisdiction. That is the view of London’s litigation fraternity, which has published a guide for surviving Brexit.

The London Solicitors Litigation Association claims that specific clauses will be enforceable throughout the EU post-Brexit, assuming the UK signs the Hague convention on choice of court agreements, which is likely.

According to the association, parties can continue to select English law to govern their agreements safe in the knowledge that the remaining EU states “will be obliged under the Rome I and Rome II regulations to recognise that choice” – even after Brexit.

The litigation lawyers add that “to avoid post-Brexit uncertainty and complexity when it comes to effecting service of process in the EU, it will be prudent for parties expressly to appoint process agents in their commercial agreements”.

In Brief

Rio Tinto terminates top lawyer’s contract amid mining payments probe – The Lawyer

Human rights lawyer Phillipe Sands wins literature prize – Jewish Chronicle

Phowoar and order: Israeli lawyer becomes internet sensation – The Sun

Obituary: Daniel Hollis, QC --The Times

 
 
Quote of the Day

“Lawyers come in many types – from the ignorant to the overly crafty.”

 
 
 
Byline
Comment

Action needed over piecemeal transgender laws Allan Briddock

Transgender issues have been cross-examined in minutest detail over the past couple of years – earlier this year MPs on the women and equalities select committee produced a comprehensive report on what it is to be trans in the UK today.

But sadly many issues around legal status remain confusing and unresolved.

Trans people are still massively disadvantaged in their treatment by providers of health and education services, the immigration and justice authorities. Moreover, legal protections that are supposed to counter that disadvantage either do not work, or actively contribute to the problem.

That begins with the Gender Recognition Act 2004, which the government claims as evidence of the UK leading the way on trans issues. The reality is more tawdry; the act was urgently assembled after defeat in a series of landmark human rights cases in Strasbourg, brought because trans people were effectively “unpersoned” and stripped of their rights post-transition.

It solved immediate and pressing issues around pensions. At the same time it began an unhappy tradition of trans rights being awarded piecemeal.

Individual gender was medicalised and subject to the judgment of a panel, albeit decisions can be challenged through judicial review. This determines whether individuals had a diagnosable condition, known as gender dysphoria, and whether they have taken sufficient steps to change gender, which the law would henceforth treat as strictly binary.

The legislation also inserted the state into all future discussion of gender. Some subsequently awarded rights depend on a trans person having a piece of paper, a gender recognition certificate. Except even this is not clear, because if you are trans, your “gender rights” appear randomly dependent on a range of factors, from bureaucratic status to physical re-assignment.

Possession of a certificate appears to confer greater legal protection than the ability to present more authentically – as society recognises it – in acquired gender, and a certificate helps in cases of outright discrimination. It is probably – although this is not certain – a defence in any case of sex by deception that may arise from failure to disclose gender history to a sexual partner.

On the other hand, the Matrimonial Causes Act specifically allows the annulment of a marriage if trans history is not disclosed, regardless of whether a certificate has been granted. Likewise, the prison service, according to a recently imposed policy, may still assign an individual to a male or female estate, according to the discretion of governors.

Confusing? Absolutely – and what is confusing for lawyers is even more so for those who are trans. The whole legal edifice is ramshackle and rotten, because where human rights are concerned, uncertainty is the essence of the matter.

Fundamental change is needed – yet given the feeble response provided by the government to the House of Commons committee, it seems that the only way to bring about such change is through the strategic application of legal pressure.

Allan Briddock is a barrister at 1 Pump Court chambers in the Temple; a conference to launch the “trans equality legal initiative” is being held today at the City of London offices of the law firm Linklaters

 
 
Tweet of the Day

I'm so infuriated by the biased media coverage of the proposed whiplash reforms!

Steph Lucy @steph_lucy

 
 
Blue Bag

It’s lonely being No 1 in insurance

Government proposals to cap compensation for whiplash resulting from motoring accidents has pitted claimant lawyer vehemently against those acting for insurance companies.

The war of words has been robust and heated – and with both sides looking for an edge. Clyde & Co, the international insurance law specialist firm, reckoned its edge came in hyperbole.

“World’s #1 insurance law firm comments on whiplash reform consultation,” screamed the e-mail subject line to the practice’s statement. That sort of boasting often ends in tears; for several generations, a US car-hire company ran a famous slogan – “We’re number two; we try harder” – that made obvious capital out of not being “#1”.

Doubtless the marketing gurus at DAC Beachcroft, Holman Fenwick Willan, Kennedys and RPC will be rushing to concoct a slogan now.

Lady justices in the picture

Future generations working in a legal profession dominated by women will doubtless scratch their heads in bemusement at the fact that an inn of court once felt it necessary to mark that five of its members were sitting simultaneously on the Court of Appeal bench.

But in these less than entirely enlightened times, noting the progress of women in the legal profession is essential – and Inner Temple has gone the extra mile by commissioning a group portrait.

Of the eight female judges currently sitting in the Court of Appeal, five are members of the inn: Dame Heather Hallett, who in 1998 was the first chairwoman of the Bar Council of England and Wales; Dame Elizabeth Gloster, who was in charge of the Commercial Court in 2010-12; Dame Jill Black, a family division judge in 1999-2010; Dame Eleanor King, another former family division judge in 2008-14; and Dame Victoria Sharp, who sat in the Queen’s Bench Division in 2009-13.

Organisations often slip up on occasions such as this – and diary-writers could have had a field day if Inner Temple had commissioned a middle-aged male artist to wield the brush. But Inner Temple’s master of pictures, Tom Shields, QC, kept his eye on the ball and went for an up and coming young woman artist.

Isabella Watling studied in Florence and has exhibited in the 2012 and 2014 BP Prize Awards. She specialises in portraits painted to the scale of life and under natural light.