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The Times

Wednesday, September 28 2016

Happy birthday to The Brief.

A year ago The Times launched this innovative bulletin for busy lawyers and others interested in the cut and thrust of legal affairs. It has become popular with thousands of readers, both via email and through social media.

Frances Gibb and Jonathan Ames, who edit the weekday bulletin, have exciting plans for expanding its coverage. Watch this space for even more insight into all things legal, including news, comment and gossip.

Breaking: Top lawyer threatens to quit abuse inquiry

The most senior lawyer at the national child abuse inquiry is poised to resign, The Times reports.

Ben Emmerson, QC, counsel to the Independent Inquiry into Child Sexual Abuse, is understood to disagree fundamentally with the new chairwoman, Alexis Jay, about its future. He is thought to favour a restructuring to reduce the inquiry’s workload while Professor Jay, along with the home secretary and No 10, is determined that it should stick to the original terms of reference.

Also today ...

  • £5m rollercoaster crash fine 'lower than expected'
  • Review backs CPS decision not to prosecute Sir Cliff
  • NHS breach draws ire of data watchdog
  • Fare-dodging lawyer disbarred
  • Drug baron prisoner in kosher meals win
  • Timbuktu shrine attack sentence ‘sends message’
  • Baker & McKenzie brand on top for seventh year on trot
  • Comment: Fertility jungle needs more law
  • The Churn: Clyde & Co top man to focus on Americas
  • Blue Bag diary: Truss told to sort out lawyer post-Brexit access rights

Tweet us @TimesLaw with your views.

Story of the Day

Rollercoaster crash fine lower than expected

Lawyers were at odds over yesterday’s fine handed to Merlin Entertainments after a rollercoaster crash, with one expert describing the amount as “significant” while another said it was much lower than it could have been.

As The Times reported, the company was hit with a £5 million fine resulting from a crash on the Smiler at Alton Towers last year. Judge Michael Chambers, QC, sitting at Stafford crown court, called the crash a “needless and avoidable accident in which those who were injured were lucky not to be killed”.

Ann Metherall, a partner in the health and safety team at Burges Salmon, a law firm based in the West Country, said: “Although Merlin responded well after the accident, the fine of £5 million is significant as it reflects the severity of its omissions.”

Metherall said that the case highlighted that the courts would hold employers responsible “even when an employee or employees make a mistake, if the company’s training and guidance procedures do not cover how to deal with unplanned events or breakdown situations”.

However, Nick Barnard, at Corker Binning, a London law firm, said that the level of the fine “will come as a surprise to some, who had expected that the court would use this as an opportunity to set the bar for future high-level sentences”.

Barnard explained that the court did not go beyond guideline sentence ranges, “which it would have been entitled to do for a very large company such as Merlin”.

The lawyer said that the court agreed with the Health and Safety Executive that while Merlin’s culpability was “high” and the harm caused of the highest category, the sentence remained within the suggested range of up to £6 million.

News Round Up
Review backs CPS decision not to prosecute Sir Cliff

A review has upheld the decision not to prosecute Sir Cliff Richard, officials announced yesterday.

Sir Cliff, 75, said he now hoped that an internal review of the Crown Prosecution Service’s decision “brings this matter to a close”, writes John Simpson.

The singer had been accused by four men of sexual offences between 1958 and 1983, including a claim of sexual abuse of a child under 16. Earlier this year the CPS announced that no charges were to be brought as a result of the inquiry. It subsequently received applications to review two of the charging decisions under the victims’ right to review scheme.

The singer is suing the BBC and South Yorkshire police after the force leaked information that led to a helicopter and camera crew covering a raid on his Berkshire home while he was in Portugal. He described the experience of being named publicly before his police interview as akin to “being hung out like bait”.

A CPS spokesman said: “In accordance with the scheme, a CPS lawyer who was not involved in the original decision-making process has completed a full review of the evidence and has concluded that the decisions not to charge were correct.”

NHS breach draws ire of data watchdog

Data for thousands of NHS patients who did not wish their confidential details to be shared may not have been destroyed, board papers show.

More than a third of organisations that received unauthorised data during the rollout of the “” project, which officials have since scrapped, failed to respond to NHS Digital’s request to destroy the records.

A memo from this month’s meeting of the NHS Digital board says 47 of the 123 medical research information service (MRIS) customers and nine of 28 non-MRIS customers have not yet responded to its request to destroy the data.

According to the Press Association, 51 GP practices out of the 7,454 contacted have also not yet submitted an up-to-date list of patients who have chosen to opt out of data sharing. The story was first reported by the Health Service Journal (HSJ).

About 700,000 patients signed up to a “type 2 objection” as part of the scheme, which means their personal confidential information should not have been shared or published by NHS Digital for purposes beyond their direct care.

The Information Commissioner’s Office (ICO) has given NHS Digital until October 19 to make patients “aware that it is possible that their personal data has been shared with third parties against their wishes”. It said that NHS Digital should also tell organisations that where possible the data should be destroyed or deleted.

NHS Digital said it had asked organisations to determine whether they were able to destroy the affected data. A spokeswoman added: “We have been working to ensure that we meet the requirements of the undertaking (with the ICO) and have consulted with the Information Commissioner’s Office throughout about our work in this area. We remain on schedule to complete this work within the timescales outlined.”

Fare-dodging lawyer disbarred

A wealthy barrister who was one of the UK’s most prolific rail fare dodgers has been dismissed from the profession by a disciplinary tribunal.

Peter Barnett, an Oxford University graduate, was convicted of six counts of fraud a year ago after he dodged fares worth £23,000 during his daily commute to London from his home in Oxfordshire. The Bar Standards Board disclosed that he had been disbarred by an independent tribunal.

Barnett, who was called to the Bar at Lincoln’s Inn in London in 2007 and lives in a £600,000 house in Thame, was convicted of a sustained period of evading rail fares in and out of Marylebone station, London, between April 2012 and November 2014.

The Australian-born lawyer was spared jail at the time with a 16-week prison sentence suspended for 12 months and he was ordered to carry out 200 hours’ of unpaid work.

A spokeswoman for the regulator said yesterday: “Dishonest conduct is incompatible with membership of the Bar. The tribunal’s decision to disbar Dr Barnett reflects this.” Barnett is also recorded as a qualified solicitor in England and Wales and in New South Wales. The Bar Standards Board confirmed that regulators in those jurisdictions had been notified of the tribunal’s decision to disbar him from the Bar of England and Wales.

A spokesman for the Solicitors Regulation Authority for England and Wales said that Barnett had removed himself from the roll seven years ago and therefore it had no regulatory authority over him. The spokesman added that if Barnett applied for readmission the regulator would “assess all relevant information”.

Timbuktu shrine attack sentence ‘sends message’

The chief prosecutor for the International Criminal Court yesterday welcomed a nine-year jail term handed to a Malian jihadist for destroying Timbuktu’s shrines, saying it sent “a warning” to others planning such attacks.

The term imposed on Ahmad al-Faqi al-Mahdi for directing the 2012 attacks on the fabled mausoleums in northern Mali was a “fair sentence”, the ICC chief prosecutor Fatou Bensouda told the news agency AFP. But she stressed that it “will give warning out there for those who are committing the crimes... that this is a serious crime. It is a war crime and they will be held accountable for destroying these important sites.”

Legal commentators agreed. Kristin Hausler, a senior research fellow at the British Institute of International & Comparative Law, said that by prosecuting al-Mahdi, “the ICC has demonstrated that it is ready to condemn the perpetrators of all crimes enshrined in the Rome Statute, including the war crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, and historic monuments, which are not military targets”.

International human rights campaigners described the verdict as important, while also calling for further action from the local authorities. “The Malian government should follow suit and step up efforts to ensure investigations and fair trials for crimes committed by all sides during the conflict,” said Corinne Dufka of Human Rights Watch.

“Real justice for the victims and their families has been long in waiting,” she added.

Drug baron prisoner in kosher meals win

A drug baron serving a 25-year sentence has scored a double victory against the government over prison conditions that he claims fail to cater for the needs of strictly observant Jews.

Simon Price, now in his seventies, was jailed in 2005 for masterminding a plot to smuggle cocaine worth £35 million into Britain.

The Orthodox Jewish prisoner has repeatedly taken on the Ministry of Justice, saying that not enough was being done to cater for his faith in prison and arguing that Muslim and vegetarian prisoners were treated better than Jewish inmates.

Now, in an embarrassing blow to the prison service, a tribunal has upheld his complaints under the Freedom of Information Act. Government lawyers said that meeting Price’s information requests would cost thousands from an overstretched budget. However, Judge Annabel Pilling has ruled that his demands for details about policy on kosher meals laid on for Jewish prisoners across the prison service must be met.

Price may also be entitled to know all about the pay and conditions of a senior rabbi, employed by the Ministry of Justice, to look out for Jewish inmates.

The ministry refused to comply with his request, saying that gathering the information Price wanted would cost about £3,000. Every one of the country’s 121 prison would have to be contacted and forced to trawl through records going back five years, it said.

Baker & McKenzie brand on top for seventh year on trot

Baker & McKenzie, the franchise model law firm with offices in 47 countries, has been named the most recognisable legal profession brand for the seventh year running.

The firm’s “long-term commitment to its global strategy” has enabled it “to flourish while others are still investing to put the cornerstones of a sound global strategy in place” analysts at Acritas, a transatlantic market research business, said yesterday.

In the top five trailing the Chicago-founded law firm were Clifford Chance, one of the City of London’s magic circle practices, DLA Piper, an Anglo-US firm, Norton Rose Fulbright, another transatlantic practice, and Hogan Lovells, which is also based in the London and the US.

Three other magic circle players were in the top ten: Allen & Overy was sixth, while Freshfields Bruckhaus Deringer and Linklaters were joint seventh. The top ten was rounded out by two more US firms: Jones Day and White & Case.

Slaughter and May, arguably the City’s most revered legal brand, did not feature in the list of 20.

In Brief

Global M&A deal value drops 50% but Wachtell tops rankings – The Lawyer

McKenzie Friend firm grows – and thanks judiciary and Bar for the publicity – Litigation Futures

Lawyer in gun rampage was wearing Nazi insignia – The Times

Soaring prison suicides a 'direct result' of government cuts, says Lord Falconer -- Politics Home


Fertility jungle needs more law Jonathan Zimmern

One of our clients recently sobbed with relief in court. After months of uncertainty, the judge had told him that despite the monumental incompetence of the fertility clinic mishandling essential paperwork in his wife’s conception via donor sperm, he did indeed have the right to call himself the legal father of a child he had always considered his own.

Sir James Munby, president of the Family Division, mopped up the clinic’s mess applying the doctrine of consent, something he has done in similar IVF cases in which clinics have bungled paperwork, ruling that when signed paperwork was missing, circumstantial evidence – such as participating in the fertility process together – was enough.

The skill of the judge was to adapt the law to suit the reality of modern parenting. Currently, however, there is nothing the law can do to compensate the family for the horror of the mistake.

The fertility business is booming, and with it the likelihood of further mistakes. Same-sex couples and single women are swelling the growing number of people seeking help to conceive, and pay handsomely for that help.

Sperm and egg donation, surrogacy, egg freezing and “add-ons” to increase the chance of success have turned the industry into an estimated £15 billion annual business globally, growing by 9 per cent each year.

The law can protect would-be families by fining clinics for administrative errors in their treatment and regulators can bring them into line by threatening to rescind licences.

But civil law does not have the ability to punish clinics for the pain they cause when they trifle with people’s hope of having children, nor compensate them for draining their savings in the process.

Last week, a 47-year-old woman contacted us for help after she was left devastated when the donor eggs she was promised by a clinic, and which she had paid to reserve, were mistakenly given to another couple. That may have been her last chance.

There is little we can do for her since to bring a claim for compensation for injury to her feelings, and to her ability to start a family, we must first prove she suffered a physical injury. Even then, the damages recoverable would be minimal and probably not worth the strain of legal action. In law, the intense emotional pain of having one’s dreams dashed doesn’t count.

Lord Winston, a leading IVF expert, recently described the fertility business as a “jungle”, damning privately run clinics for overcharging patients and unscrupulously treating couples doomed to failure.

The speed of medical progress in areas of fertility and genetics is changing the way families are created. Unless the law has the teeth to protect individuals by claiming compensation when they are emotionally and financially damaged by negligent treatment, clinics and their wealthy directors will never take their responsibility to patients seriously.

Such damages would never be huge, but they might at least pay for one last round of appropriate treatment, which may just result in success.

Jonathan Zimmern is a medical negligence specialist partner at Fieldfisher, a City of London law firm; Caron Heyes, a senior associate at the firm, co-wrote this article

Tweet of the Day

Labour commits to abolition of Employment Tribunal fees. What about other recent hike in Court fees. What about Immigration? SMEs?

Andrew Langdon QC @westcrct

Blue Bag

City lawyers tell Truss to sort out post-Brexit access rights

As were her two non-lawyer predecessors as lord chancellor and justice secretary, Liz Truss is on something of a steep learning curve. And it may come as a bit of a shock to her, but lawyers can be slightly patronising and dismissive of laypeople.

However, it was presumably all smiles and best behaviour several days ago when Truss was invited to the offices of Linklaters, one of the City of London’s five so-called magic circle solicitors’ firms. She and a “heavyweight team” from the Ministry of Justice, including Lord Keen and Sir Oliver Heald, were greeted by senior lawyers not just from Links but from at least a dozen Square Mile firms.

The informal pow-wow was organised by the City of London Law Society “to discuss the priorities for the legal sector in the forthcoming Brexit negotiations”.

According to the society’s chairman, Alasdair Douglas, his members were to pass on their concerns directly “so that she can feed them into the Brexit negotiating team under David Davis”.

Douglas told The Brief that the main points conveyed to Truss and her team focused on “recognition of English lawyers’ qualifications so that they can practise in other EU countries, rights of audience at the ECJ, legal privilege and movement of our staff around Europe and beyond”. One senior partner apparently looked the MoJ team squarely in the whites of their eyes and said bluntly: “UK lawyers need to maintain access to every global Bar.”

There you are, Liz, just be getting on with that then.

UK media lawyers’ Brangelina obsession

Angelina Jolie and her recently estranged husband, fellow Hollywood star Brad Pitt, are obsessing UK lawyers.

First it was divorce specialists sharp-elbowing each other to give their interpretation of who had the upper hand. Now media lawyers are scrambling to issue forth on how the divorcing pair will protect their privacy on this side of the Atlantic.

After it emerged that Jolie and Pitt had instructed Harbottle & Lewis and Schillings, respectively, another big player in the field couldn’t resist the temptation to chuck in his tuppence ha’penny worth.

“Whilst the key financial battle and arguments over custody will be fought between California’s finest divorce lawyers,” said Dominic Crossley, a partner at Payne Hicks Beach, a London firm, with arguably one eye on referrals from Stateside, “it is the media lawyers that will be burning the midnight oil from the start of this ultra-high-profile uncoupling.”

The Brief’s heart bleeds, Dominic, tell us more. “Having engaged UK media lawyers to address publishers in this country, these lawyers will be considering how to protect their clients’ privacy and reputation during this feeding frenzy.”

Feeding frenzy? Surely in these post-Leveson inquiry days, the media’s approach to this type of story has more of a high tea feel about it than a frenzy.

Crossley ploughs on with a useful tip for the media lawyers in the front line in the Brangelina saga: “They will be instructed to ensure that their value to movie studios [Dominic is a bit old school and clearly thinks that Cecil B DeMille still prowls Hollywood Boulevard] remains untarnished and likewise to ensure that the coverage does not damage their negotiating position in the divorce.”

The Churn

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

Clyde & Co top man to focus on Americas

James Burns, the lawyer who has led a mid-sized City of London law firm’s decade-long assault on the US market, is to stand as senior at Clyde & Co and take the role of “head of Americas”.

The firm announced that Burns would make the move from the beginning of November and hand over the senior partner reins to whoever was elected as his successor next month. Burns is widely credited with Clyde & Co’s success in the US where so many other heavier-hitting English law firms have struggled. In May the shipping, aviation and insurance specialist firm planted a flag in Miami, its sixth US outpost to open in the past ten years.

The firm pointed out yesterday that during Burns’ three-year tenure as senior partner Clyde & Co had grown revenues by one third to £447 million. And in addition to opening US offices, the firm had cut ribbons in Dusseldorf, Edinburgh, Glasgow, Leeds, Newcastle, Aberdeen, Brisbane, Johannesburg, Cape Town, Newport Beach in California, Riyadh, Madrid, Atlanta, Melbourne, Chongqing and Dar es Salaam.

Also Stateside, Ashurst has lured Vincent Casey to the partnership in its New York office. Casey, an infrastructure specialist, moves to the firm from Nixon Peabody.

Back to Blighty and the Bar where Brick Court Chambers in London has appointed Mark Howard, QC, as joint head of chambers. The commercial law specialist was called in in 1980 and took silk in 1996. He joins Helen Davies, QC, in the joint top role.

Quote of the Day

“When a judge at Blackfriars, who has long since retired, threatened to put me in the cells for contempt upon discovery that I had successfully obtained high court bail for a defendant that he had earlier decided to remand in custody.”