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The Times

Monday, May 15 2017

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

Election promises: May commits to employment law overhaul

Workers will be promised a raft of updated rights today as Theresa May’s “red Conservatives” will launch a general election employment law overhaul.

The Times reports this morning that the headline measure will be the right to take up to a year off work to care for family members with illness or disability. Also included will be a commitment to statutory child bereavement leave and the right to request time off work for training. The prime minister will describe the legislative programme as the “greatest extension of rights and protections for employees by any Conservative government”.

Also today ...

  • Barristers warn ‘tsunami’ of sex cases will overwhelm courts
  • Lawyer antics as big a risk as cyberattacks to law firms
  • FTSE 100 litigation rockets over last year
  • Husband criticises ruling in historic divorce award
  • Gig economy courier settles employment dispute
  • High street legal practices ‘losing out’ to competition
  • Day viewed claim that Iraq client was violent as ‘nonsense’
  • Comment: Chelsea Manning’s release is a triumph for justice
  • The Churn: Women partnership promotions tumble in City
  • Blue Bag diary: An international lawyer of danger

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

 
Story of the Day

Tsunami of sex cases will overwhelm courts, barristers warn

A time bomb of sex offences cases is clogging up the courts, criminal barrister leaders have warned in open letter to political parties.

Leaders of the Criminal Bar Association, which represents 4,000 barristers, said that without a funding boost the justice system will be unable to deal with the deluge of sex cases that now occupy 50 per cent of time in some courts.

They told the main political parties that the rule of law depends on a properly-funded court system. However, in the last 25 years, they claimed, the system has been allowed to “degrade”. Violent crime is rising and “the system is dealing with a tsunami of highly sensitive sex cases which are set to occupy it for years to come”, they said.

Francis FitzGibbon, QC (pictured), the association’s chairman and a tenant at Doughty Street Chambers in London, said: “The number of sexual abuse cases coming to the courts has been growing each year and yet this may only be the beginning. There has been a recent unprecedented rise in the reporting of historic sexual abuse allegations and that has already placed a huge strain on public resources for the proper investigation of claims.

“The new wave of allegations about historic sexual abuse of young footballers will test whether any lessons have been learned from recent institutional failures. But the bigger question is whether the criminal justice system – police, prosecutors, defence lawyers, courts, prisons – can cope with more and more such cases at a time when people and resources are already stretched to their limits due to years of underfunding.

“The public’s rightful expectations will go unmet unless the system is assured of the capacity to deal with the demands placed upon it.”

 
 
News Round Up
Lawyers’ antics as big a risk as cyberattacks

Embarrassing revelations about lawyers coming off the rails have caused the most damage to law firms’ reputations, more than a third of large commercial practices have said.

“Lawyer and staff misdemeanours” were cited by 34 per cent of law firms as having damaged their reputations in the last two years, a survey published today reveals.

According to senior communications staff at law firms, the issue of lawyers behaving badly was seen as an equal risk to reputation as cybersecurity threats. But the biggest threat to law firms’ reputations was their own clients. The researchers for Legal Business magazine and Byfield Consultancy found that 36 per cent of law firms cited the reputational issues of their own clients as their own top risk.

While recognising the importance of reputation – nearly 80 per cent of large firms claimed to have a clear strategy to deal with the issue – many seemed blasé about keeping up to date with the detail.

The survey found that 22 per cent of firms never reviewed their reputation-management strategy, while another 38 per cent reviewed their policies only annually. “Many law firms are playing catch-up when compared to their corporate cousins, where senior PRs often have a seat at the boardroom table,” said Gus Sellitto, Byfield’s managing director.

FTSE 100 litigation rockets over last year

Britain’s biggest companies were involved in more than twice the amount of High Court litigation in the last 12 months compared to five years ago, research published today reveals.

There were 279 cases involving FTSE 100 businesses over the most recent period compared with 114 for the comparable time five years ago.

Researchers attributed the rise to the growing complexity of cross-border business and the increasing use of third-party litigation funding, which finances cases that in some instances litigants would otherwise not been able to afford. Funding is also viewed as a method of removing litigation costs from the balance sheets of defendant corporations.

Banks were in the front line of litigation, the research team from Thomson Reuters told the Financial Times. High Court law suits involving FTSE 100 banks rose by 14 per cent in the last 12 months.

Husband criticises ruling in historic divorce award

A Russian billionaire who was ordered to pay his estranged wife £453 million has denounced the court ruling as unreasonable, unfounded and an outrageous abuse of the British legal system.

The man, who is an oil and gas magnate, claimed that his former wife, 44, had held the “courts to ransom”. He added that he had always taken care of her in spite of her infidelity.

The Times reported that he described last week’s award – made by Mr Justice Haddon-Cave at the High Court’s family division in London – as especially surprising because, he claims, they divorced in Russia more than 17 years ago after she admitted adultery.

The billionaire, who is 61, said that the award was unreasonable because he had given her a multimillion-pound home in Surrey and spent millions annually to keep her in a luxurious lifestyle with housekeepers, gardeners and chauffeurs. He was also ordered to hand over a collection of art valued at £87 million and an Aston Martin valued at £350,000. That, he said, was in contrast to the situation of women who faced a life in need after being abandoned by rich spouses.

In his ruling, Mr Justice Haddon-Cave described the woman as a hands-on mother who had made an equal contribution to the marriage.

Courier company settles gig economy dispute

A courier company has admitted to incorrectly employing a rider as an independent contractor in a settlement heralded by union officials as the first significant victory over a gig economy business.

Ecourier, which is based in London, has settled a dispute with a former delivery rider, keeping the claim out of the employment tribunal.

Union leaders welcomed the settlement as “the first case of an employer in the gig economy admitting wrongdoing”. Jason Moyer-Lee, the general secretary of the Independent Workers’ Union of Great Britain, which represented Demille Flanore, the former rider, encouraged Ecourier to review its contracts generally.

“Given that these workers have been unlawfully deprived of their rights for years,” Moyer-Lee said, “we expect this to happen swiftly and will be monitoring their progress. We would also urge other employers in the so-called gig economy to follow suit.”

Another gig economy company, Deliveroo, was also reported to have removed a controversial clause from its contracts with their delivery riders. Lawyers said the clause had been intended to prevent Deliveroo riders from challenging their self-employed status at tribunals and required them to pay the company’s costs if they brought claims.

The president of the Law Society welcomed Deliveroo’s move to amend its contracts. “Attempting to block people from enforcing their rights through the employment tribunal is just plain wrong,” Robert Bourns said. “We're glad that Deliveroo has bowed to pressure and removed this clause, recognising that everyone must be free to seek justice through the courts when they feel they have been wronged.”

A Deliveroo spokesman said that the revised contract “makes clear that our riders are able to log in to work with us whenever they want – allowing them to fit their work around their life rather than their life around their work”.

High street practices ‘endangered by specialists’

General practice solicitors’ firms are a dying breed, the senior partners at small practices have admitted.

Traditional high street law firms are thought to be destined to lose out in an evolving market in which they will be increasingly overrun by alternative business structure-practices and niche specialist firms. The gloomy forecast for the village green or town high street all-rounder solicitors was made in a report from Lexis Nexis, the legal profession research business, which found that two thirds of traditional firms anticipated losing out to other business models.

Slightly more than half of the lawyers at the remaining high street legal practices said that “overall legal quality in the UK will decrease” as a result of structural shifts.

Nearly 80 per cent of the small firm respondents predicted that “non-legals” – business offering legal services but not owned by lawyers – “will compete directly with law firms”. Some 65 per cent predicted that smaller practices would have to become more “artisan” and “bespoke” to survive.

Old-school high street solicitors also worried about the quality of lawyers generally. About a third said that “good lawyers” were in a minority in the legal profession. “I’m afraid I’ve seen a decline in quality, certainly in the last five years, in small firms – particularly in intellect, ability to think and skill,” one respondent told the researchers.

Day viewed allegations that Iraq client was violent as ‘nonsense’

Warnings that an Iraqi who alleged that British soldiers had tortured and murdered civilians was himself a violent insurgent were “nonsense”, the lawyer who brought the claims has told a disciplinary tribunal.

Martyn Day said yesterday that he had dismissed concerns that Khudur al-Sweady, a central figure in damages claims against the British Army, was a member of the Shia militia, Mahdi Army.

Day, who has stepped down from his position as senior partner of the London law firm Leigh Day, is facing misconduct charges for his handling of claims on behalf of Iraqis who were later shown to be Mahdi Army fighters.

The Times reported that the Solicitors Disciplinary Tribunal, sitting in London, heard that an email sent to Day by an intermediary, Mazin Younis, suggested that al-Sweady was threatening or blackmailing nine claimants who had alleged torture and murder of Iraqi prisoners.

Day, his law firm partner Sapna Malik and junior lawyer Anna Crowther face misconduct charges, including an allegation of destroying a key document. They deny all charges. The hearing continues.

In Brief

Call to end divorce case secrecy – The Times

Law degree applications surge beyond all other courses – Legal Cheek

Website calls for delay in laws against lottery bets – The Times

 
 
 
Byline
Comment

Chelsea Manning’s release is a triumph for justice Nancy Hollander

Chelsea Manning – the soldier who was jailed for disclosing US military secrets to WikiLeaks – came into my life in December 2013, nearly six months after she was sentenced. She is set to be released this Wednesday.

Three and half years ago, unexpectedly, I received a letter asking if I would handle her case on appeal. I was surprised and excited. I immediately asked my law firm partner, Vince Ward, who spent six years as a lawyer in the US navy, if he would work on this case with me.

Vince Ward and I flew to the Leavenworth Disciplinary Barracks in Kansas to meet Manning in person because appeal against a 35-year sentence was essentially a life-changing decision. Within five minutes we all knew that this collaboration would work.

And so began a long process. Manning’s trial record is the longest in US military history. The written documents cover 139 volumes of approximately 330 pages each. Several thousand more pages of classified documents are stored in a secure location. We had to read it all. We also had to travel to a secure location to read the classified material.

Soon after we started, we were joined by Major David Hammond, who was a captain at the time. Because Manning is in the army, she is entitled to detailed counsel from that branch of the forces and, even though we are her lead counsel, Major Hammond provided invaluable assistance throughout, including writing portions of the brief.

We filed the 250-page brief with the US Army Court of Criminal Appeals in May 2016. We urged the court to dismiss the case or, at a minimum, reduce the unprecedented 35-year sentence. The reasons included that Manning was placed in solitary confinement for almost a year while awaiting trial and unnecessarily punished to the extent that the UN special rapporteur on torture, writing specifically about the conditions of her pre-trial confinement, said that it could amount to a breach of the convention against torture.

We also argued that the US government had failed to produce significant evidence that Manning’s disclosures harmed national security or diplomatic interests; that the military judge considered improper aggravation evidence at sentencing; and that several of the charges lacked evidence or violated the US constitution.

Finally, the submissions argued that Manning’s sentence was the harshest in history for a whistleblower and should be reduced on the grounds of fairness.
Government lawyers sought numerous extensions so we have yet to see their response. In the meantime, on January 17, 2017, President Barack Obama commuted Chelsea’s sentence to time served plus 120 to May 17, 2017.

We are overjoyed that Manning will soon be free. Her appeal raises important legal issues that we will continue to argue, but now we will do it while she is free and sitting beside us.

Nancy Hollander is a lawyer who led Chelsea Manning’s appeal; she practices at Freedman Boyd Hollander Goldberg Urias & Ward in Albuquerque in New Mexico and is a door tenant at Doughty Street Chambers in London

 
 
Tweet of the Day

Populist government bullying the judges. KTO OBRONI KONSTYTUCJE? 'Who defends the Constitution?' ask protesters tod… https://t.co/aghmMJrN28

Andrew Langdon QC @westcrct

 
 
Blue Bag

An international lawyer of danger

Lawyers are not often seen as international figures of intrigue and danger – unless they are partners at the Boston-founded Goodwin apparently, reports Linda Tsang.

The UK office of the firm threw a bash to celebrate its new digs in the Square Mile along with an expanded London presence that results partly from taking on private equity and investment refugees from the sinking ship that was King & Wood Mallesons.

KWM – which went bust in London and Europe at the beginning of the year – is a Sino-Australian firm and naturally conversation turned to the Asia-Pacific region and Hong Kong specifically. City lawyers tend to view postings to Honkers as something of a glamorous reward. Not so the Yanks, who view HK as a hardship posting, and not just because the availability of hot chocolate with mint marshmallows is limited.

Goodwin’s Asia chairman, Yash Rana, revealed that when he moved from the firm’s New York office to Hong Kong about a decade ago he was covered for “K&R” – kidnap and ransom insurance. Rana hastily added that the cover was primarily taken for his assignments in Afghanistan and not for negotiating everyday life as a lawyer in Hong Kong.

Independence day

Everyone needs to self-identify in the modern world – even law firms.

Small local outfits in high streets and on village greens used to be known as general practice solicitors. But these days, according to researchers at Lexis Nexis, small high street practices are dubbed “independent law firms”.

Why? “They see themselves as masters of their own firms and independent of external control,” says a Lexis Nexis spokesman. “More than a structure or business model, independence is a mindset.”

The spokesman acknowledges that while some unreconstructed dinosaurs (Are you talking to me? Ed) might see the outfits as small, “LN UK feels it will be a disservice to call them that as many are specialists with their own business model and structure and are successful organisations.”

The day when lawyers are referred as legal technician engineers must be only around the corner.

 
 
The Churn

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

Women partnership promotions tumble in City

City law firms certainly talk a good game regarding gender diversity, but the elite squad of five “magic circle” seems to be letting the wider side down as women partnership promotions hit a three-year low.

Just 17 per cent of lawyers promoted to that group’s collective top table were women, research published on Friday revealed. That was roughly half the number of women promoted to partnership at those firms in 2015.

The trend is definitely moving south, as last year 26 per cent of magic circle partnership promotions went to women.

Statistics from The Lawyer magazine also show wide disparities between the five firms. Indeed, the declining overall percentage was mostly attributed to one of the players – Allen & Overy. Only 9 per cent of its new partners this year were women.

On the other side of the spectrum, Freshfields Bruckhaus Deringer will pick up the gold star from gender diversity campaigners with women making up 38 per cent of its newbie partners. The Anglo-German firm was streets ahead of its rivals: 24 per cent of new Bpartners are women, and 20 per cent of those at Clifford Chance.

As ever, Slaughter and May was outlier of the magic circle five. More than 40 per cent of its new partners were women – but that translated to only three out of seven worldwide.

Meanwhile, outside of the Square Mile, the national firm Clarke Willmott boosted three lawyers to its partnership: Robert Ridd in Bristol, Clare Gregory in Cardiff and Greg Hughes in Southampton. For those who are counting, even The Brief can do that bit of maths – 33.33 per cent of Clarke Willmott’s new partners are women.

 
 
Closing Statement

Knowing one’s place in court

David Fingleton, a renowned stipendiary magistrate in the 1980s, could be waspish, particularly with his fellow barristers, recalls James Morton.

When one appeared before him, charged with being drunk and disorderly, the man, whose blushes we shall spare, was still showing signs of being worse for wear. The barrister stumbled into court and addressed Fingleton: “As a member of the Bar, I don’t know where I should sit.”

The judge was having nothing of it. “Today you are a defendant and will sit in the dock. Tomorrow you may be appearing for a client and you will sit where counsel sit. If ever you are appointed to the bench, you will sit where I am today. Please take your place.”

James Morton is a former criminal law solicitor and now author