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The Times

Monday, November 7 2016

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

New Brief Premium

  • Employment law focus: Workers’ rights post-Uber – the new revolution
  • Pensions law focus: Age concerns


  • Javid and Truss under pressure over Brexit row
  • Judges ‘hopelessly bad’ at communicating, says Sir Alan Moses
  • Law firms used as cover for massive scams
  • Online justice could put judges out of business
  • Union bosses call for ditching of tribunal charges
  • Comment: Man v machine – emotion trumps robotics
  • Blue Bag diary: Which lawyers batted for attacked judiciary?
  • More Blue Bag: Ex-abuse inquiry silk instructs libel partner
  • The Churn: Merger fallout – another bails from Olswang

Tweet us @TimesLaw with your views.

Story of the Day

Javid and Truss under pressure over Brexit judges row

A former Tory Cabinet minister has called for Sajid Javid​ to be sacked for branding the High Court​ Brexit ruling “unacceptable”​ as the row escalated last night over attacks on the judiciary as "enemies of the people”.

The Times reports that Lord Patten, who was also once party chairman, said that the communities secretary should be “out on his ear” and “doesn't know what the rule of law means in politics”. His comments came after Javid accused the three judges who ruled that MPs should have a say on triggering Brexit negotiations of seeking to “frustrate the will of the British people”.

The row blew up as the prime minister began a two-day trade mission to India. Sky News reports that on landing in Delhi, Theresa May said the government had a "strong" case for overturning the High Court ruling in the Supreme Court.

But senior figures from the church and legal establishment also weighed in to condemn the attacks senior judges back home – with a former Lord Chancellor warning that Liz Truss, the current Lord Chancellor (pictured), had lost the confidence of the judiciary and legal profession. Lord Falconer of Thoroton, ​who was Lord Chancellor from 2003 to 2007, ​said that her "formulaic" statement issued late on Saturday amid mounting calls for her to speak out in defence of the judges displayed "cowardice”.

"She has completely failed to discharge her most important duty when the test has come," he told The Times. “It displayed either a lack of confidence in defending the judges and to understand the importance of doing that; or cowardice; it is very significant that it was approved by Downing Street.”

​Other senior figures joined the chorus of condemnation after the ruling, which is to be appealed to the Supreme Court, although ministers have been advised they will probably lose.

Jeremy Wright, QC, the attorney-general, who will lead the government's appeal, is understood to have advised the prime minister that the judgment – which was unanimous and clear – could well be upheld by the 11 Supreme Court justices.

Judges ‘hopelessly bad’ at communicating, says Sir Alan Moses

Senior judges share the blame for the furore over their decision to reject the government’s claim that it can trigger the Brexit mechanism without MPs’ backing, a former member of the Court of Appeal bench said yesterday.

Sir Alan Moses described the senior judiciary as “hopelessly bad” at communicating generally with the media and therefore the wider public has little idea of how they conduct their roles. “I’ve had a bee in my bonnet about this for some time now,” Moses told Radio 4’s Broadcasting House yesterday morning. He said part of the row over recent days “may be the fault of the judges themselves and the communications office”.

Moses, who was a Court of Appeal judge from 2005 to 2014, went on to say that the senior bench was “hopelessly bad at communicating with the press about what they are about to do, about what the issues are, about what they have to decide and about their conclusions. They issue press releases that are anodyne and dull, but they simply won’t get engaged. That is a great fault in the judiciary as a whole.”

Moses, who is now the chairman of Ipso, the press regulator – would not comment on whether some papers had gone too far in their criticism of the high court ruling last Thursday, saying that the destination of any complaint would be a matter for his organisation’s board.

However, Moses sided with many commentators in saying that it was the “statutory obligation” of the Lord Chancellor, Liz Truss, to defend the independent judiciary against unfair and unfounded attacks.

While the Daily Mail, Daily Telegraph and The Sun harshly criticised the judges’ ruling, other papers backed the decision. Writing in The Observer, Iain Martin, a leading Brexiteer and editor of the website Reaction, said that the judges “were right”.

Nonetheless Frances Hoar, a senior-junior barrister at Field Court Chambers in Gray’s Inn wrote a comment for The Independent website that maintained “the government has a good chance of winning the Brexit Supreme Court appeal”.

Brexit claimants return to crowdfunding for Supreme Court round

Some of the successful claimants in last week’s High Court action against the government are returning to an online crowdfunding platform to finance the next stage of the legal process in the Supreme Court.

The so-called People’s Challenge to Article 50 raised more than £170,000 to finance the High Court case. It is now seeking another £75,000 to pay the legal costs of defending that victory against the government’s appeal next month in the country’s top court.

John Halford, the partner at Bindmans, the London law firm acting for the claimants, said: “The People’s Challenge group and thousands of backers unhesitatingly committed to defending parliament’s sovereignty. They have prevailed so far and will resist the anticipated government appeal in the Supreme Court.”

The claimants used the website CrowdJustice to fund the first round of the action; 5,000 people contributed an average of £35 each.

Julia Salasky, the founder of CrowdJustice, said that she was “very proud that thousands could be part of bringing this hugely significant constitutional case”. Salasky maintained that doing so “allowed people who care passionately about the issue to play a part in the victory”.

News Round Up
Law firms used as cover for multi-million pound scams

Fraudsters are using law firms as cover for bogus investment schemes that have swindled consumers out of at least £100 million over the past 18 months, a legal profession watchdog has warned.

The Solicitors Regulation Authority has alerted the public to be wary of schemes promoted through law firms, with the number of scams having doubled over the past year and a half. Regulators say that they are investigating law firm-linked frauds at a rate of one a month.

The Times reports that many schemes involve money being moved through solicitor client accounts before being transferred to supposedly legitimate financial investors. The authority warned that examples of fraudulent schemes include those purporting to trade in carbon credits, agricultural rights, so-called rare earth minerals and diamonds.

Other bogus products, such as off-plan purchases of holiday homes and leases for individual hotel rooms, have also used solicitors’ practices for cover.

The criminals running the frauds are attracted to using law firm middlemen as it lends their scheme a veneer of legitimacy. Connections with law firms are frequently feature heavily in the promotional material for bogus schemes to make them appear trustworthy and safe.

The SRA points out that genuine financial services companies do not need to have investment funds passed through law firms. It has also warned solicitors against becoming involved in financial schemes because they could unknowingly be laundering the proceeds of fraud.

Paul Philip, the regulator’s chief executive, described the phenomenon as “a growing problem, which can cause real misery for people looking to invest their savings. If you are in any doubt, you should get advice from your own solicitor or other trusted adviser.”

The SRA pointed out that usually law firms were gullible but unwitting participants in the frauds. The authorities have recently fined Lawcomm Solicitors £40,000 after the firm acted for six different companies offering investments in graphene, diamonds, oil contracts and films. Nearly £9.5 million passed through the client account in relation to these investments.

Also, within the past fortnight, Mel Goldberg, of Mel Goldberg Law, was struck off the roll for a range of breaches, including being involved in a suspected investment scam where he took millions of pounds from investors in water purification technology and paid it to other people without the investors' knowledge.

The SRA's statement further needled the solicitors' representative body. According to the Law Gazette, Robert Bourns, president of the Law Society, said the regulator should "reinforce" the message that "the vast majority of solicitors" are not caught in the type of scams described.

Online justice could put judges out of business ... says top judge

​The rise of an online justice system could put judges out of business in the wake of the march of the “robotic” court, a senior judge warned on Friday.

Lord Justice Fulford also said that the advent of computers might mean less transparency and open justice as more disputes are settled online.

However, he insisted that the judiciary would fight to keep courts open to public scrutiny as the digital revolution, which is fully backed by judges, takes effect. “The judiciary is fiercely committed to the principle of open justice,” he told the annual Bond Solon expert witness conference in London. “Greater digitisation offers both challenges and opportunities in this field in that technology enables more data to be gathered that can be made accessible than historically has been the case,” said the Court of Appeal judge, who is also the senior presiding judge for England and Wales.

“We will need to find ways in which the public can gain access to telephone, video and online hearings. I am determined that we will not throw a cloak of secrecy over our new digital, computer-aided processes, but this is going to need imagination and commitment.”

Fulford, who is involved in implementing computerisation across the justice system, insisted that even with digitisation, “every decision about substantive rights will be made by a judge. The main elements of conciliation will be conducted by a human being.” He added, however: “Perhaps all of us professionals who rather enjoy our jobs need to hope that the new digital systems – those clever algorithms – do not render us entirely redundant. We may ultimately be fighting the rise of the robotic court.”

The judge's comments came several days after the Bar leader sharply criticised the government for what she claimed were moves to compromise judicial independence by effectively forcing judges to back its court modernisation programme.

Union bosses call for ditching of tribunal charges

The number of workers suing for unfair dismissal or bringing discrimination claims to employment tribunals has tumbled since charges came into force, a study revealed last week.

Unfair dismissal claims have fallen by nearly three quarters and there have been huge reductions in discrimination cases on grounds of sex (71 per cent down), race (58 per cent) and disability (54 per cent). The falls come after the implementation of charges of up to £1,200, union bosses said.

The number of workers taking claims to a tribunal averaged 16,000 a month in 2012-13, but that figure collapsed to 7,000 in the past year, the TUC said. According to the Press Association, the TUC warned that discrimination and unfair sackings were being allowed to flourish “unchecked”.

Union leaders urged the government to announce in the autumn statement this month that the charges would be ditched. Frances O’Grady, general secretary of the TUC, said that Theresa May “has repeatedly said she wants to govern for ordinary working people. Here is a perfect opportunity. She could reverse employment tribunal fees and make sure workers can challenge bad employers in court.”

Lawyers backed the union leaders. Chantal-Aimée Doerries, QC, chairwoman of the Bar Council of England and Wales, said that the TUC’s analysis of official government statistics created “a worrying picture for those facing sexism, racism, disability discrimination at work. They are being priced out of the courts.”

In Brief

China adopts cybersecurity law in face of overseas opposition – Reuters

Olswang Europe offices left out in the cold on three-way merger – The Lawyer

Chadbourne cites 'inappropriate behaviour' and 'poor judgement' in partner's $100m gender bias suit -- Legal Week

Solicitor struck off for forging bank statements and QC’s opinion – Legal Futures


Lawyers v machines – emotion trumps robotics Peter Rouse

Fragile, secretive and prone to irrational behaviours – against any measure by which machines are judged, humans fail to stack up when it comes to reliability and performance.

In our modern era, man as adjunct to machine has been a necessary compromise that is being gradually eroded as artificial intelligence (AI) begins to capture more than imagination, and to command investment from leading law firms. For lawyers, AI is the dependable Watson to their innately superior Holmes; and rumours of their imminent demise have been greatly exaggerated.

Lawyers serve as a bridge between the complexities of law and the vagaries of their instructing clients who are, without exception, human. Until machines become sentient and acquire rights – and obligations – similar to those afforded to humans, decisions as to how to proceed in any legal matter will be determined by human factors including emotion. The importance of emotional intelligence (EI) in business is well-established; however, it is AI that is getting all the attention, and the money.

EI is altogether harder for lawyers than AI as it is something that they have to develop within themselves. It cannot be externalised, delegated or outsourced. It requires skills that are not taught in law schools and a degree of self-awareness and empathy for which lawyers are not renowned. EI is the stuff of relationships that attract, retain and refer business and talent. EI, for those who have it, is the key to success for themselves and the firms they work in.

Relationships matter more now than ever – they define not only the service experience of clients, but also lawyers’ work satisfaction. Recently, Joshua Graff, LinkedIn’s UK country manager, referred to research indicating that 84 per cent of professionals are in some respect dissatisfied with their roles. The top three concerns for those seeking fulfilling roles are: salary (48 per cent); relationships with colleagues (46 per cent); and doing work that has a positive impact on others (38 per cent).

The future will indeed look bleak for lawyers who see their expertise as centred in knowing law and regulation as the pace of AI accelerates and the cost comes down. Smart lawyers will recognise that their future security and earning capacity rests on their ability to counsel their clients with sensitivity to their human concerns and drives, providing something that robotic and largely scripted interactions will, I like to think, never quite achieve.

Peter Rouse is the former founding partner of Rouse, a London law firm specialising in intellectual property; he is the author of Fragile: mastering the relationships that can make or break a career, and a firm, the second edition of which has just been published by the American Bar Association.

Blue Bag

Which lawyers batted for attacked judiciary?

When the biggest constitutional crisis in a generation rolls around, it is interesting to see which way the main two branches of the legal profession jump.

As the very principle of judicial independence came under fire after three senior judges ruled that elected MPs should have a say in deciding when and how the UK government triggers the country’s departure from the EU, barristers went over the top all guns blazing.

The Bar Council’s chairwoman, Chantal-Aimée Doerries – hitherto not one of the most combative figures in the profession – hit television screens and radio airwaves hard in defence of the bench. She pushed the line that the council had put out after vitriolic and personal attacks launched by some sections of the media on the three judges.

“Publicly criticising individual members of the judiciary over a particular judgment or suggesting that they are motivated by their individual views, political or otherwise, is wrong,” Doerries fumed. Doing so, she said “serves only to undermine their vital role in the administration of justice. It also does no favours to our global reputation.”

Fair enough – and indeed, a sentiment with which one imagines just about every lawyer in the country would agree. But the Law Society, which represents the vast majority of lawyers in England and Wales, decided that the potential undermining of a pillar of democracy was not worth a comment in the immediate aftermath of the cover.

However, the society did eventually rally its president to contact the Radio 4's Any Answers, but the presenter was clearly unimpressed, referring to him by a comedy name -- Robby Barnes -- that had all the hallmarks of a 1980s footballer. The Law Society president's actual name is Robert Bourns.

Ex-abuse inquiry silk instructs defamation partner

Ben Emmerson, QC, the lawyer who dramatically resigned several weeks ago as lead counsel to the controversial Independent Inquiry into Child Sexual Abuse, is understood to have instructed a leading media law solicitor.

Bindmans, the human rights specialist London practice, announced via social media at the end of September that the Matrix Chambers silk had instructed the firm after he had been suspended by the inquiry. However, its tweet did not comment on the nature of the instructions.

Now, The Brief understands that Tamsin Allen, a defamation law partner, is advising Emmerson amid reports that his own chambers has launched an investigation after allegations that he had been involved in a sexual assault. The move suggests that the QC is keeping a close eye on the media’s coverage of his travails.

Emmerson has denied that any instance of assault, bullying or other misconduct took place, and Matrix has refused to respond to requests for comment on any internal investigation. Allen, too, did not return requests for comment.

The Churn

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

Merger fallout – another partner bails from Olswang

Ron Burgess is the latest lawyer to say thanks but no thanks to the forthcoming tripartite merger in the City of London between the law firms CMS, Nabarro and Olswang. The pensions specialist has jumped from Olswang to Blake Morgan, a mid-sized practice based in London, Cardiff and the southwest.

Olswang has seen a string of partners heading for the door since the merger was announced at the beginning of last month. It was reported after the announcement that the firm had attempted to persuade partners to sign a lock-in agreement that would commit them to the merger.

Finance gamekeeper turns poacher

A senior lawyer at the finance regulator has turned from gamekeeper to poacher as she moves to one of London’s leading white-collar crime defence law firms. Claire Cross – the former assistant director in the cartels and criminal group of the Competition and Markets Authority – has jumped to Corker Binning as a counsel.

Before joining the authority, Cross was a senior lawyer at the now defunct Financial Services Authority after having been an in-house government lawyer, prosecuting for the Serious Organised Crime Agency – also now defunct – and Revenue and Customs and the Inland Revenue.

Elsewhere on the greasy pole …

Bristows, City of London law firm that specialises in corporate and intellectual property work, has named Marek Petecki as joint managing partner; he will sit alongside Theo Savvides at the top of the partnership table. At the same time, the firm has boosted Richard Pinckney, a patent specialist, to the partnership.

Linklaters, one of the City’s coterie of “magic circle” firms, has appointed Claudia Parzani as western Europe regional managing partner; she takes over from Pieter Riemer for a four-year term.

King & Spalding, the international law firm based in Atlanta, has within the past few days made up 14 partners – only one of whom practises in London. The lucky Londoner is Ilan Kotkis, a corporate lawyer.

Katharine Shaw has jumped from Wilsons Law, the London and Salisbury firm, to the Southampton office of the national law firm Irwin Mitchell. She joins the family department as a partner.

Closing Statement

Intermittent adultery

Lawyer-to-lawyer questions seeking “further and better particulars” have tended to produce some clever replies, writes Gary Slapper.

In a divorce case, Glyn Burrell, QC, one of the titans of the 1960s Bar, alleged that for a period Mr A and Mrs B “lived and cohabited and frequently committed adultery together”.

When the lawyer for the other side wrote to ask whether the period was continuous or intermittent, Burrell replied: “The period of cohabitation was continuous. It is presumed that the adultery was intermittent.”

Gary Slapper is global professor at New York University, and director of its London campus; twitter @garyslapper