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The Times

Wednesday, March 29 2017

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

Today

  • Tesco coughs up £214m in prosecution deal
  • Marine A to be freed from jail within weeks
  • Tribunal rejects disclosure of Shiner health evidence
  • Judge investigated over domestic violence remarks
  • Rape victim defends judge’s warning to ‘drunk women’
  • UK needs to repeal 53,000 EU laws brought in since 1990
  • Comment: Beginning of the end for ‘Big Law’
  • The Churn: Groundbreaking Scottish woman partner retires
  • Blue Bag diary: Soon, all junior lawyers will be free

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

 
Story of the Day

Fourth deferred prosecution deal as Tesco coughs up £214m

Britain’s biggest retailer has agreed to pay a fine of £129 million and about £85 million in compensation to settle investigations into its accounting scandal two and a half years ago.

Lawyers said the deal involving the Tesco Stores subsidiary of Tesco illustrated the increasingly close working relationship between the Serious Fraud Office and the Financial Conduct Authority, which made its first ever use of its power to order compensation for market abuse.

“Deferred prosecution agreements have so far netted the UK fines and disgorgement in excess of £650 million, and that’s after just four of them with others waiting in the wings,” said Robert Amaee, a partner at the City of London office of US law firm Quinn Emanuel Urquhart & Sullivan.

“We may well see a significant growth in the use of DPAs, if the government’s recent consultation on corporate criminal liability for serious economic crimes does, as is expected, lead to a widening of the law,” predicted Amaee.

The Times reports that the most recent agreement – which applies only to Tesco Stores and does not address whether any liability attaches to Tesco Plc or any of its employees or those of Tesco Stores – relates to false accounting by the subsidiary between February 2014 and September 2014.

When the false accounting was discovered Tesco had to restate its accounts, resulting in a 92 per cent drop in interim profits and a sharp fall in its share price. Tesco went on to report the biggest loss in British corporate history of £6.3 billion in 2015.

DPAs were introduced in 2014 and enable companies to avoid prosecution if they volunteer to co-operate fully with any investigation and pay a fine or compensation and agree to overhaul their compliance monitoring.

 
 
News Round Up
Reduced Marine A sentence prompts calls for review

Lawyers called on defence chiefs to take the mental health of the British military more seriously in the wake of a court ruling that the former Royal Marine who shot dead a wounded Taliban fighter will be freed from prison within weeks.

Senior judges sentenced Alexander Blackman (pictured) yesterday to seven years for manslaughter, reports The Times. Blackman, 42, had his conviction for murder quashed earlier this month and the Court Martial Appeal imposed the revised verdict on grounds of diminished responsibility because he was found to be suffering a psychiatric illness at the time of the killing in 2011.

“Military doctors should downgrade individuals to avoid re-exposure, and they should be referred immediately for assessment,” said Rhicha Kapila, a partner at the London law firm Bolt Burdon Kemp.

“If it’s decided they’re not fit for service, then they should be supported and monitored as they readjust into civilian life. These internal policies must be followed to ensure continuity of care. But we have seen situations where unobservant commanders tell sufferers to take rest and recuperation instead of referring them to their medical officer.”

In Blackman’s case yesterday the court, headed by Lord Thomas of Cwmgiedd, the lord chief justice, imposed the fresh sentence for “the deliberate killing of a wounded man” meaning that, with credit for good behaviour, Blackman can expect to be freed in middle of next month.

The judges dismissed Blackman, a sergeant with 15 years’ service, from the Royal Marines but made it clear that in light of his previous exemplary record it was not dismissal with disgrace as had been imposed by a court martial in 2013.

There were loud cheers from a packed public gallery at the Royal Courts of Justice in London where scores of military veterans had gathered for what is the last hearing following a long campaign to overturn Blackman’s murder conviction.

The appeal judges ruled that despite suffering from an “adjustment disorder”, which impaired his decision-making abilities, Blackman “retained a substantial responsibility for the deliberate killing”. They said his actions had had “a material adverse effect on the views many hold about the conduct of HM Armed Forces”.

An emotional Claire Blackman, the former Marine’s wife and public face of the campaign, warmly thanked Jonathan Goldberg, QC, of North Square Chambers in London, who led his legal team.

Lawyer commentators pointed out that the court could have left Blackman’s sentence unchanged, even after his conviction was reduced to manslaughter. The substantial reduction, said Ben Henriques, a lawyer at London law firm Corker Binning, “clearly reflects sympathy for his mental illness”.

Day tribunal rejects disclosure of Shiner health evidence

Evidence as to the ill health of the disgraced lawyer struck off over false Iraq war claims against UK troops may undermine charges against other lawyers, a tribunal was told yesterday.

Patricia Robertson, QC, told the Solicitors Disciplinary Tribunal in London that the evidence about the health of Phil Shiner must be disclosed – so as to assess the case against a leading London law firm.

The QC from Fountain Court Chambers in London is acting for the firm Leigh Day, which also faces multiple charges before the tribunal of professional misconduct over the Iraqi claims. She told the Solicitors Disciplinary Tribunal: “We are entitled to challenge the factual findings of proceedings to which we were not a party.”

But the Solicitors’ Disciplinary Tribunal agreed with submissions from the Solicitors Regulation Authority that the medical evidence did not have to be disclosed. A full hearing of the allegations against Leigh Day and its partners Martyn Day and Sapna Malik will begin next month and is expect to run until at least the first week of June.

Timothy Dutton, QC, also from Fountain Court and for the SRA, said he did not understand the need for the medical evidence to be disclosed, “unless it is going to be alleged that Mr Shiner had an illness that made his admissions irrelevant”.

He said that a doctor had found that Shiner – who was said to be suffering from poor health and stress because of the disciplinary proceedings – had been able to attend his hearing provided reasonable adjustments were made.

Dutton added that the allegations of misconduct related to two periods before Shiner’s illness. The SRA was also concerned that the proceedings against Leigh Day were held in public – and if private medical evidence was introduced, then they would have to be in private.

Shiner, whose Birmingham-based law firm, Public Interest Lawyers, has now closed, was found guilty in February of a series of charges including dishonesty and lack of integrity over the baseless claims against troops.

Leigh Day now stands charged over the discredited claims by Iraqi detainees that led to the costly Al-Sweady Inquiry to investigate if British soldiers tortured and murdered detainees.

Robertson argued that Leigh Day wanted the disclosure of medical evidence regarding Shiner be put before the tribunal. “The material to be disclosed may or may not be relevant, but we should be allowed to see it,” she said.

Judge investigated over domestic violence remarks

The judge who spared a man who assaulted his wife with a cricket bat and made her drink bleach is to be investigated by the judicial authorities over remarks that the woman was not “vulnerable”.

Complaints were lodged over Judge Richard Mansell, QC, after he handed Mustafa Bashir, 34, a suspended sentence at Manchester crown court last week for assaulting his wife, Fakhara Karim.

The judge provoked a storm of criticism from domestic abuse campaigners after he said that Karim was not vulnerable because she was intelligent. Yesterday the Judicial Conduct Investigations Office confirmed it had received complaints about the judge.

The complaint will be looked at initially by officials to see if it falls within the office’s remit – sentences, for instance, are excluded. If it meets the criteria, the complaint will go to a judge to be investigated. Any sanction would have to be approved by the lord chancellor and the lord chief justice and may include formal advice, a formal warning or reprimand, or suspension from office.

The Crown Prosecution Service is also looking into whether to return to court to seek a review of the sentence within 56 days if new information relevant to the sentence comes to light.

The court was told that if Bashir was spared custody he would be employed as a professional player by Leicestershire County Cricket Club. However, the club has denied the claims.

Sandra Horley, the chief executive of Refuge, the charity for domestic violence victims, said: “Judge Mansell’s comments … show a shocking ignorance around the impact of domestic violence on women.

“What a woman does for a job, her level of education or the number of friends she has makes no difference; for any woman, domestic violence is a devastating crime that has severe and long-lasting impacts.”

Rape victim defends judge’s warning to ‘drunk women’

A rape victim has defended the judge who was attacked for saying during her assailant’s trial that drunk women were putting themselves in danger.

Megan Clark, 19, who was raped by a man she met in Burger King when she was drunk after a night out in Manchester, admitted she needed to be “more careful”. Clark has waived her anonymity to back the judge’s remarks.

The trial sparked controversy after Judge Lindsey Kushner said that the drunken behaviour of some women was putting them at risk. However, yesterday Clark told the BBC Victoria Derbyshire programme that the judge had told women to “be careful” and that was “good advice”.

The teenager said she took the judge’s comments in “a positive way”, adding that she did not believe she was “victim-blaming”. “She was right in what she said,” Clark told the programme in her first interview.

Last month, Ricardo Rodrigues-Fortes-Gomes, 19, was found guilty at Manchester crown court of two counts of rape last July. The court heard how he ignored Clark’s screams while he attacked her.

A witness who rang the police also filmed the attack on a mobile phone and Rodrigues-Fortes-Gomes was sentenced to six years behind bars. A second man was found not guilty.

Clark had been drinking lager and vodka before the attack and had inhaled the party drug amyl nitrite. At the end of the trial, Judge Lindsey Kushner said that “as a woman judge” she felt compelled to plead with women to protect themselves from predatory rapists who “gravitate” towards drunken females.

The judge – in her last trial – said that women were entitled to “drink themselves into the ground”, but their behaviour was also putting them in danger.

Another judge criticised over sex warning

A judge has come under fire from women’s groups for warning a group of teenage schoolgirls never to take their clothes off or strike indecent poses during online chats.

Judge Jamie Tabor, QC, had just jailed an internet child sex predator for six years at Gloucester crown court when he turned to a group of about 50 school pupils to give the warning. The father of three girls told the pupils that they should always stay “fully clothed” and in a “decent pose” in case images come back to “embarrass” them in later life.

He was prompted to give the warning by the case of 53-year-old Michael Nash, of Stroud, who admitted seven offences of inciting a 14-year-old girl to engage in sexual activity last year.

But women’s groups criticised his comments. “The message that comes from the words expressed by the judge and why other groups have criticised it,” said Louise Williams, service director of Gloucestershire Rape & Sexual Abuse Centre, “is simply that we should never, ever blame women and girls for the violent behaviour, sexual or otherwise, that is perpetrated by men.”

Brexit: UK needs to repeal 53,000 EU laws brought in since 1990

Britain has incorporated nearly 53,000 EU laws over the past 25 years, it was revealed today as a sign of the legislative task the UK faces as it quits the bloc.

More 6,700 new laws applying in the UK have been incorporated in the past seven years, the legal data service Thomson Reuters said in the lead up to Theresa May triggering Article 50 of the Treaty of Lisbon, the official start of the process of departure.

Thomson Reuters analysed data from EUR-Lex, the register of EU law and said that the extent of the continued application of EU law in the UK would depend on “the nature of the UK’s negotiations with the EU over its departure” According to the analysts “it is likely that businesses operating within the EU will need to operate under both UK and EU Law”.

Any trade deal struck between the UK and the EU is likely to require the former’s continuing adherence to relevant EU laws.

“Intense lobbying from interest groups that may suffer or benefit from the abolition of certain EU laws in the UK is likely to become a major feature of this process,” said Daniel Greenberg, the author of Craies on Legislation, which is published by Thomson Reuters.

Greenberg argued that politicians and trade negotiators on both sides would need to determine exactly what the nature of the UK’s relationship with the EU would be. “This, in turn, will affect the EU’s future influence over UK regulation,” he said.

In Brief

Freshfields advises Tesco over deferred prosecution deal – The Lawyer

'Hillsborough law' proposes parity of funding for bereaved families – Law Gazette

Lawyers invite Harman to discuss proposals to protect rape complainants – Solicitors Journal

 
 
 
Byline
Comment

Beginning of the end for ‘big law’ Richard Beresford

It is easy to forget that the concept of “big law” in the UK has only been around since the late 1980s, when Coward Chance merged with Clifford Turner to create the Clifford Chance behemoth. And today commentators fall into the trap of granting the big law model a degree of inevitability and permanence that is not justified.

At the height of their hegemony, the dinosaurs must have seemed destined to rule the Earth for ever. Power and dominance in business can also be fleeting, especially for less nimble creatures whose ability to adapt to a changing environment is hampered by sheer size and bulk.

Could today’s kings of the primordial legal swamp become tomorrow’s fossils?

The signs of impending demise exist already. The collapse of King & Wood Mallesons and the raft of recent merger announcements – with accompanying redundancies – are some of the symptoms. A rapidly shifting competitive environment and changes in client expectations are the causes.

Deutsche Bank’s recent refusal to pay for juniors or trainees is only another early sign. A significant and growing number of clients argue that the traditional big law model, with its pyramid structure, overblown City of London offices and exorbitant charge-out rates, is built to fleece clients, not service their needs.

Increasingly turned off by the incumbents, law firm clients are seeking alternatives, including the next generation law firms. This new breed emphasizes senior-lawyer-only advice and paring fixed overheads to the minimum.

Paying lawyers only for client work allows these firms instantly to flex their staffing costs in line with workload. And the use of agile working practices not only keeps office space costs to a minimum, but also gives their lawyers a better working environment.

Big law’s natural advantages have rapidly been eroded in recent years. An increasingly comprehensive and sophisticated library of precedents and knowhow is now available to all – including clients – at low cost. Who needs to employ ranks of professional support lawyers when you can tap into the work of thousands of them for next to nothing?

Cloud computing has allowed the next generation law firms to catch up and pass their bigger cousins with levels of speed, data storage and security undreamt of only a few years ago and, again, at minimal cost.

And now the final advantage of the big players – the ability to throw large teams of juniors, trainees and paralegals at stacks of data – is also fading. It started with litigation support specialists and the scanning and processing of huge volumes of documents for disclosure.

It will end with artificial intelligence and the ability of a small number of senior lawyers to review the output of AI systems capable of processing large volumes of due diligence disclosures and lease portfolios, or producing drafts of sophisticated suites of documents.

Just as the dinosaurs were eventually replaced by more nimble creatures, big law will not be ruling the Earth for much longer.

Richard Beresford is chairman of McCarthy Denning, a corporate-commercial niche law firm in London

 
 
Tweet of the Day

@OnnMel @BarristerSecret @HarrietHarman which lawyers have you met? What research have you done? Nothing sexist about the challenge to this.

Zoe Gascoyne @Zoe_Gascoyne

 
 
Blue Bag

Soon, all junior lawyers will be free

Deutsche Bank really has set City of London lawyers into a tizz. Several days ago the German financial institution dropped a bombshell on its panel law firms: you can throw as many junior lawyers and trainees on our files you like, but we ain’t paying for them.

Corporate clients in the US have for some time been taking an aggressive approach to bill padding in its multiple varieties. The more egregious – and entraining – examples from Stateside have included lawyers inviting general counsel for a round of golf followed by a full session on the 19th green – only for it to feature in a thinly disguised line on the client’s monthly legal bill.

But clients in the US have also moaned about law firms overloading their files with hordes of junior lawyers. They increasingly resented having to pay for inexperienced lawyers to cut their teeth, and have rebelled. That approach seems now to have crossed the Atlantic.

And the bosses at the legal Square Mile are not pleased. A quick and dirty straw poll by the website Legal Week published yesterday found – surprise, surprise – that 60 per cent of City partners rate Deutsche Bank’s policy about as much fun as waterboarding.

However, and perhaps most importantly, a quarter of the respondents were convinced that other corporations would soon adopt similar approaches.

Philadelphians snub Londoners in promotion round

The annual partnership promotion season involves the big commercial law firms in England and the US distributing notices that would make Oscar-award winners blush.

And the US firms in London generally manage to make at least a couple of local lawyers happy by handing them the keys to the partnership washrooms, complete with gold-plated taps and lavatory seats.

So it was refreshing to see the recent statement from Morgan Lewis, the Philadelphia-based international firm.

There was plenty of brotherly love from the management in Singapore, where 19 lawyers were promoted to the partnership table. And they didn’t do too badly in Moscow with 10. Seven made the grade each in Frankfurt and Tokyo; even a couple were promoted in Paris.

But what of London, the city that Benjamin Franklin, the adopted Philadelphian, called home for many years? Not a sausage. But points to the firm for pointing this out to the UK legal media in a special press notice.

 
 
The Churn

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

Groundbreaking Scottish woman partner leaves Morton Fraser

The chairwoman of Morton Fraser, one of Scotland’s ten largest law firms, is leaving after more than three decades with the practice, reports Greig Cameron.

Linda Urquhart, a commercial property specialist, became the first female managing partner of a large Scottish firm when she took the top job in 1999. She oversaw substantial increases in profit and turnover in her 12 years at the helm.

And in 2009 she became the first women to take the helm of the Confederation of British Industry in Scotland. She moved into the same role at Morton Fraser in 2011.

The firm said that Maggie Moodie would succeed Urquhart while continuing to lead its public sector team.

Across the Irish Sea, and James Richards is the new executive director of Baker McKenzie's “near shoring” lawyer battery farm in Belfast. He succeeds Jason Marty, who launched the operation in 2014; it is now home to 250 staff performing a mixture of legal and general business roles.

Over to Germany, where the ramifications of one of the biggest recent mergers in the Square Mile are having an impact. The Munich office of Reed Smith, the US international firm, has added Andreas Splittgerber, an intellectual property lawyer, to its local partnership.

Splittgerber and two associates are moving to the American practice from Olswang, which back in Blighty is part of a tripartite merger with CMS and Nabarro that, according to Square Mile gossip, is not the happiest of deals.

And back to the City, where Ashurst has lured Tamer Bahgat to its partnership from magic circle firm Allen & Overy, where he was part of the high yield bond group.

 
 
Closing Statement

No platforming

One of the great Canadian lawyers of the early part of the 20th century was the Irish-born Paddy Nolan who was also the editor of the Calgary Herald, recalls James Morton.

It was an era of remittance men and, on one occasion when one of his clients – the absent son of an English baronet – was hanged, Nolan was obliged to write to the father. So the story goes, his journalistic experience came to his aid.

“My lord,” Nolan is understood to have written, “I regret I have to inform you that your son met his death last Friday morning whilst taking part as a principal in an important public ceremony. Unhappily the platform on which he was standing gave way.”

James Morton is a former criminal law solicitor and now author