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The Times

Thursday, April 13 2017

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

The Brief is taking a break over the Easter recess and will return on Monday, April 24, 2017. We look forward to picking up with readers again, when you will also hear about our plans for the new expanded Brief.


  • Terminally ill man allowed to challenge suicide law
  • Melania Trump bags libel damages from Mail publisher
  • Judge sacked for online ‘donkey’ comment
  • ‘Financially ruined’ Max Clifford needs legal aid for appeal
  • ‘Shattering’ helicopter noise not a nuisance, court rules
  • Defunct City law firm broke redundancy rules, staff claim
  • Reduce stress on juniors, solicitor chiefs tell firms
  • Comment: Gender pay gap law only scratches the surface of bias
  • Blue Bag diary: Row over just how posh the Bar is
  • More Blue Bag: Dawn raid? Get the app …

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

Story of the Day

Terminally ill man allowed to challenge suicide law

A terminally ill man has won the right to challenge the law that stops him ending his own life at a time of his choosing.

Noel Conway, 67 (pictured centre), had asked the Court of Appeal to overturn a ruling that he cannot seek a judicial review of the blanket ban on assisted suicide.

The retired college lecturer from Shrewsbury, who had motor neurone disease diagnosed in November 2014, is not expected to live for more than a year. Conway, who lives with his wife and son, used to enjoy climbing, skiing, walking and cycling, but is dependent on a ventilator overnight, requires a wheelchair and needs help to dress and eat. His solicitors at Irwin Mitchell said that when Conway has fewer than six months to live and retains the mental capacity to make the decision, “he would wish to be able to enlist assistance to bring about a peaceful and dignified death”.

Conway wants a declaration that the Suicide Act 1961 is incompatible with Article 8, of the Human Rights Act 1998, which relates to respect for private and family life, and Article 14, which protects from discrimination. The High Court had refused him permission to seek a judicial review but in the Court of Appeal yesterday Lord Justice McFarlane and Lord Justice Beatson sent the case back to the High Court for a hearing.

Conway, who is supported by Dignity in Dying, a campaign group, said: “Clearly the Court of Appeal has agreed that this is an issue deserving full and proper consideration and I look forward to a full hearing at the High Court. Having overcome this initial setback in my fight for choice at the end of life, I am more determined than ever to continue.”

News Round Up
Melania Trump bags libel damages from Mail publisher

Donald Trump’s wife Melania has accepted damages and an apology over allegations about her work as a professional model, writes Jill Sherman.

The settlement is thought to involve Associated Newspapers, publishers of the Daily Mail, agreeing to a total payment of damages and costs of just less than $3 million (£2.4 million), although the figure was not disclosed at the High Court in London.

Mr Justice Nicol was told that an article published in August last year “included false and defamatory claims” about President Trump’s wife “which questioned the nature of her work as a professional model, and republished allegations that she provided services beyond simply modelling”.

John Kelly, a partner at the London law firm Harbottle & Lewis who acted for Trump, said the article included allegations that his client denied and that Paulo Zampolli, who ran the modelling agency, also denied.

Catrin Evans, QC, of One Brick Court chambers in the Temple, acted for the publishers. She told the judge: “The defendant acknowledges that these claims about the claimant are untrue, and we retract and withdraw them.”

Judge sacked for online ‘donkey’ comment

A judge has been sacked for posting abusive comments on a newspaper website about cases in which he was involved.

Jason Dunn-Shaw, a recorder who is also a criminal law barrister at Maidstone Chambers in Kent, is understood to have used a pseudonym to call one man a “donkey” and others “narrow-minded and bigoted”. He accused others of commenting “without thinking things through”.

Dunn-Shaw was commenting on news stories relating to a case for which he was sitting as a recorder at Canterbury crown court, and another in which he was a barrister.

In a statement the Judicial Conduct Investigations Office (JCIO) said his behaviour was “below standard”. It said: “Recorder Jason Dunn-Shaw was subject to a conduct investigation for using a pseudonym to post comments (some of which were abusive) on a newspaper website about a case in which he had been a judge and another in which he had been a barrister.

“In his own name he also used publicly available social media sites to post material or not remove material which was not compatible with the dignity of judicial office or suggested a lack of impartiality on matters of public controversy.

“The Lord Chancellor and the Lord Chief Justice concluded that this behaviour fell below the standard expected of a judicial office holder and have removed Mr Dunn-Shaw from judicial office.”

Dunn-Shaw – who was called at Lincoln’s Inn in 1992, told Kent Online, the site where the comments were posted, that he was “dismayed” he had been sacked.
He said that the JCIO accepted his comments were made under a pseudonym, adding: “Their other condemnation is of comments I made on the pages of Facebook friends which I believed to have been private. It seems to me unfair that the tracking of anonymous material places me where I am now.”

‘Financially ruined’ Max Clifford needs legal aid for appeal

A “financially ruined” Max Clifford has applied for legal aid to fund an appeal against his convictions for molesting four girls, a court was told yesterday.

Clifford, 74, was jailed for eight years in 2014 for eight sexual assaults on the girls aged 15 to 19 between 1977 and 1984.

The once wealthy media publicist has requested legal aid to challenge the verdicts and claims that his only remaining asset is his six-bedroom mansion, worth £3.5 million, on the gated Burwood Park estate in Surrey. The High Court was told that he is now so poor he cannot afford to photocopy court transcripts for prosecutors.

Clifford's legal team argued that he should be granted permission to appeal against his convictions after private investigators dredged up “fresh evidence”.

Sarah Forshaw, QC, of 5 King’s Bench Walk, told Lady Justice Hallett that Clifford was “absolutely financially ruined”, and that she had “advised him that he should get legal aid, get a proper properly qualified, experienced solicitor with a legal aid contract behind him”.

A two-day hearing will be listed as soon as possible after June 1. Clifford, who is serving his sentence at Littlehey prison in Cambridgeshire, did not attend the hearing.

‘Shattering’ helicopter noise not a nuisance, rules court

A couple who said that “shattering” helicopter noise stymied their attempt to sell their £4m home will have to put up with the din after appeal judges ruled that it did not amount to a “nuisance” in law.

Norman Peires and his wife Lorna said the sound of helicopters coming from Bickerton’s Aerodrome blighted their happiness and slashed the value of their luxury home in Denham. They had been unable to sell their home to the Strictly Come Dancing presenter, Tess Daly, and her husband Vernon Kaye as a result of the noise, they said. Last year a judge backed their case and ordered the aerodrome’s operators to cut the noise or pay the couple almost £600,000 in damages.

After visiting the couple’s home -- Shepherd’s Holt, a six-bedroom mansion -- Mr Justice Peter Smith said that he was shocked by the noise of training helicopters landing and taking off 58 metres away. “I found the noise excruciating in the garden and clearly noticeable to a significant degree within the rooms,” he said. “It was simply impossible to have any kind of conversation or do any kind of activity in the gardens when the helicopters were there.”

Now, however, the judge’s ruling has been reversed by the Court of Appeal. Sir Terence Etherton, Master of the Rolls, ruled that the Civil Aviation Act 1982 made the helicopter flights immune from legal action.

Yesterday Sir Terence pointed out that the act rules out trespass and nuisance claims relating to aircraft flights. Subject to height and distance limits, the immunity applies to noise and vibration caused by aircraft on an aerodrome.

Flights did not have to be carried out “reasonably” for the immunity to apply, Sir Terence, sitting with Lord Justice Underhill and Lady Justice King, added. He concluded that the training exercises were “normal aviation practice” on an aerodrome and the immunity from legal action therefore applied.

Defunct City law firm broke redundancy rules, staff claim

Up to 200 former staff of King & Wood Mallesons are to claim that the defunct City of London law firm breached employment law when making redundancies before going under.

It was reported yesterday that an application had been filed with the employment tribunal and that the firm’s administrators would not stand in the way of proceedings. The Lawyer magazine said that the administrator, Quantuma, had not yet indicated whether it would defend the claim.

The substance of the claim, according to the report, is that the firm failed to engage in the 45-day consultation that is required when businesses make more than 100 staff redundant at once. It is understood that the claimants have instructed the southeast law firm Herrington Carmichael.

The City and European branch of the law firm went to the wall earlier this year, reputedly owing its bank more than £30 million.

The Lawyer speculated that because the London office is in administration it is likely that the claim will be brought against the government with any settlement paid the National Insurance Fund.

Reduce stress on juniors, solicitor chiefs tell firms

Law firms should provide better support to trainees to reduce dangerously high work-related stress burdens on junior lawyers, solicitor chiefs said yesterday.

The call came in the wake of a damning survey released earlier this week, which found that nearly 37 per cent of young lawyers said they had made professional mistakes that they claimed would not have happened if they had not been under so much pressure.

The survey – conducted by the Junior Lawyers Division of the Law Society – also found that junior lawyers blamed management for overloading them with work. Nearly half of those surveyed cited “ineffective management” as the cause of their stress.

Yesterday, the group said that it would produce guidance for employers “to support them with tackling stress and mental health issues affecting junior lawyers in the workplace”. Kayleigh Leonie, the division’s council member at the Law Society, said that the survey findings highlighted “the huge pressure that junior lawyers feel as they begin their careers, and the impact of that pressure on their mental health”.

The society’s president, Robert Bourns, pointed out that the organisation operates “a free helpline that offers confidential support for all our members”.

In Brief

In today’s Times Law …

Elsewhere …

  • Man hauled from flight plans legal action – The Times
  • Stop prosecuting man on bail for 7 years, judge urges – The Times
  • Barclays boss ‘in breach of contract over mole’ – The Times
  • Police boss is investigated over election fraud – The Times
  • Rise in solicitors struck off as tribunal faces more complex cases – Legal Futures
  • European court to rule on 2004 Beslan siege – BBC News

Gender pay gap law only scratches the surface of bias Karen Jackson

Research suggests that the gender pay gap is virtually non-existent in the UK when men and women do the same jobs -- so can the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 resolve other discrepancies?

The legislation is welcome in getting employers to assess the situation and, if necessary, address it. But can this law get to the bottom of a complex and enduring problem that remains despite 47 years of equal pay legislation?

The issue of why there is a gender pay gap is far wider, deeper and more complex than data will ever be able to capture. It goes way beyond statistics and straddles a multitude of factors. These include inherent discrimination, an unequal labour market that has historically been dominated by men, a divided market in which some sectors are feminised -- care work, for example -- and in others there are social barriers to access for women, for example in engineering.

Clearly there is also the motherhood penalty. One parent’s career must take a hit for childrearing unless childcare is affordable. That parent is almost always the mother.

Unconscious bias also perpetuates a male-dominated workplace, as does the way girls and young women might perceive their place in employment when, during education, they are subjected to messages about careers that are suitable for women compared with others that are considered unfeminine. The princess will not get the prince if she is wearing a hard hat and steel-toed boots.

Data simply cannot come close to explaining why there is a gap -- nor can legislation eliminate the gap by naming and shaming employers who do not publish information. It is a move in the right direction, but so was the Equal Pay Act 1970, which is now enshrined in the Equality Act.

That legislation has done something. The broad pay gap in the 1970s was estimated to be around 65 per cent and is now closer to 20 per cent. But there are still only seven female chief executives on the boards of FTSE 100 companies.

Curiously, data suggests the gender pay gap for women widens after the age of 40. How can we explain that?

Research suggests there is virtually no gap when comparing like jobs with like within the same company. But the regulations cannot capture a situation where, for example, a woman moves into a role previously occupied by a man and is paid less because of unconscious bias and attitudinal barriers.

There are still men at senior levels in the workplace who believe that women do not need to earn the same as men. Perhaps they were raised by mothers who did not work, or who criticised women who wanted to “have it all” by combining a career with having children.

There are people who still think like that and they are not all men. Attitudinal barriers need to be smashed. Addressing unconscious bias and schooling for girls will do more than this new law.

Karen Jackson is the founding director of Didlaw, a London law firm

Blue Bag

Row over just how posh the Bar is

Blue Bag likes nothing more than a good old fashioned social media dust-up before going off for a few days’ holiday (see note at top of this bulletin), so huge thanks to Hashi Mohamed, a seven-year-call junior commercial barrister, and BBC Radio 4 for obliging.

On Wednesday evening, Auntie broadcast “Adventures in Social Mobility”, which was presented by the No5 Chambers barrister. Born in Kenya to Somali parents, Mohamed came to the UK when he was 9 as an unaccompanied child refugee. Hardly the pampered prep-school to Eton to Oxbridge background that many poor misguided fools assume is a prerequisite for the English Bar.

The purpose of the programme was to demonstrate how Mohamed had to be moulded to fit the stereotype so that he could have a chance of a successful career. Enter “career coach” Elizabeth Rantzen, former chambers director at 2 Temple Gardens in London to “improve his fit”.

“Barristers,” pontificated Rantzen, “are generally very cultured, educated people, so they love music or drama or literature. Deciding whether you want to take somebody on as a colleague must involve saying do I want to share with them? And the sort of things they want to share are often fine wine, maybe football, often cricket, very often opera.”

Oh dear. Not the sort of message on diversity that the Bar Council so often pumps out. But Mohamed seemed to swallow it.

“People like myself,” he told listeners glued to their radios, “may get access to the elite professions if we adapt and if we get some help and support. Those inside the system naturally recruit in their own image – that entrenches the lack of any potential for upward mobility and means that the vast majority are excluded. Every so often there are those, like me, who manage to get through. We are celebrated. We get to make programmes like this one.”

Bully for you, was the not-so-subtle message from several lawyers on The Twitter, where a different view was on offer. “Me, cultured?” tweeted Mark George, QC, a criminal defence barrister at Garden Court Chambers. “I'm much happier with the Stones, Who or Pink Floyd than Bach or Beethoven.” While Rebecca Herbert, a senior-junior criminal law barrister at 36 Bedford Row in London, described the programme’s message as “utter codswallop”.

So over to readers of The Brief. Is the Bar mired in the public school attitudes of half a century ago, or is it a profession that welcomes individualism regardless of background? We can’t put you on the radio, but we might do a podcast.

Dawn raid? Get the app …

Chief executives around the world will know the feeling. It’s 5am and the alarm is just about to go off to begin a 16-hour day of making high-powered decisions and being ludicrously well remunerated for them, when the phone rings.

It’s Reg, the overnight security guard at global HQ and his shift of leafing through the latest copy of Club International has been rudely disturbed by the boys from the Competition and Markets Authority (insert any other appropriate regulatory body).

They seem to be loading all the computers and filing cabinets into several large vans out front. What should I do, guv?

Well, thanks to Baker McKenzie (the global law firm that last year took the radical decision to drop its ampersand) that chief exec’s worries are history. The firm has just launched a “first of its kind – global antitrust dawn raid app”.

Apart from keeping uncivilised hours, the problem with those pesky competition authorities, sympathises the firm, is that they “often co-ordinate their investigations, so a company can find itself being raided in several countries on the same day”. And let’s face, that can be a right pain.

So say hello to the Baker McKenzie app, described as “a cutting-edge platform that provides practical assistance and peace of mind for individuals on the ground handling unannounced inspections. It answers a whole range of practical questions on a country by country basis under local law such as ‘Can inspectors demand passwords to allow IT access?’ ‘Can employees leave the building with their laptops?’”

No high-flier should be without one.

Along comes Bristol …

You wait for ages for a rebranded regional version of the Business and Property Court to come along and then, like London buses, a couple trundle past in quick succession.

It was only last week that we reported on the opening of the enhanced court in Birmingham, which combines the Chancery Division with the specialist courts of the Queen’s Bench Division, Technology and Construction and Mercantile. Now Bristol has got in on the act.

Sir Brian Leveson, president of the QBD, and Sir Geoffrey Vos, chancellor of the High Court, gave the green light to the west country city on Tuesday.

Closing Statement

Ecclesiastical brawling

It was in 1998 that activist Peter Tatchell was fined £18.60 under the Ecclesiastical Courts Act 1860, recalls James Morton as Good Friday looms.

Tatchell had complained during the Archbishop of Canterbury’s Easter address about the abuse of gay human rights. Section 2 of the legislation provided that it was an offence to “behave indecently” in a church. Originally the offence had been “brawling”, which in this context meant interrupting a church service. Tatchell’s “indecency” had been to hold up a protesting placard.

The Act was rarely used but in a case in the 1920s -- when the prosecution had said that any interruption whatsoever came within the legal definition of brawl -- the urbane if eccentric Mr Justice Darling would have none of it. “Isn’t that going too far?” he asked. “Take one impossible case. Suppose someone were to say ‘encore’ at the end of a sermon.”