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| Thursday October 26 2017 |
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By Frances Gibb and Jonathan Ames
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This morning’s must-read of all things legal, including news, comment and gossip. For more in-depth coverage, read ...
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Today
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MINISTERS WILL BOW ON BREXIT BILL, SAYS ATTORNEY
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Gambler’s lost bet is ‘most significant honesty ruling in a generation'
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Lord chancellor backs ‘triage’ system for legal aid advice
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Private data on the super-rich could be exposed after hack
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Toblerone settlement ‘gives green light to copycats’
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Blue Bag diary: Tribunal fee solicitor named lawyer of the year
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In the House: Apple’s general counsel takes $23m bite
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The Churn: Ex-lord chief elected to Justice council role
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Analysis: Plain packaging -- booze and sweets could fare better than cigarettes
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Special focus: Wales creeps closer to separate legal system
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Special focus: Tide is turning on legal aid cuts
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| Tweet us @timeslaw with your views. |
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Special focus: Devolution
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Wales creeps closer to separate legal system
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As the Welsh assembly gains more power, the arguments for a distinct legal jurisdiction become stronger and the former lord chief justice is conducting a landmark review
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Story of the Day
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Ministers will bow to Brexit bill amendments, says attorney-general
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Ministers are ready to concede amendments on the Brexit withdrawal bill in the face of opposition from Tory rebels and Labour, the attorney-general has said.
Jeremy Wright, QC (pictured), the told Times Law: “No government would say, should say, it is so confident in the perfection of a bill that it will not even listen.”
He continued: “That is not to say it will accept all of [the amendments], but we will listen to them and it is wrong at this stage to discount the possibility that someone comes up with an amendment we will think is sensible and would accept.”
However, the attorney-general strongly defended the use of secondary legislation for the purpose of transferring EU rules and regulations into UK law. Doing so reflected the practical realities of the volume of legislation and was not an arbitrary decision by government, he said.
The European Union (Withdrawal) Bill has been delayed by MPs tabling some 300 amendments and proposing 54 new clauses. About 13 amendments are thought to have enough support from Tories to see the government defeated in a Commons vote, with a former Conservative attorney-general, Dominic Grieve, leading a drive to tighten up the legislation’s language.
Sir Keir Starmer, QC, Labour’s shadow Brexit secretary and a former director of public prosecutions, has condemned the bill as “simply not fit for purpose”. He maintained that it would give “huge and unaccountable power to ministers” and said “it puts vital rights and protections at risk”.
Starmer is demanding six changes to the bill, which has yet to return to the Commons for amendments despite MPs having expected to resume debate on the legislation straight after the party conferences.
He said that the government has withheld the legislation from the Commons for two weeks because it fears defeat on at least 13 amendments, which could be brought about by a small revolt of Tory MPs.
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News round-up
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Gambler’s lost £7.7m bet is ‘most significant honesty ruling in a generation’
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The poker player Phil Ivey has lost a high-stakes gamble in Britain’s highest court over £7.7 million that he claims to have won honestly at a London casino.
Ivey (pictured), 40, an American who is known as the “Tiger Woods of poker”, has been fighting to recover the money won during a game of punto banco, a form of baccarat, at Crockfords Club in Mayfair in 2012.
Genting Casinos, the owner of the club, maintained that a technique Ivey had used called “edge sorting” was not a legitimate strategy.
Yesterday, five Supreme Court justices unanimously upheld the majority decision of the Court of Appeal, which dismissed Ivey’s case on the basis that dishonesty was not a necessary element of cheating. The landmark ruling means that a player can be guilty of cheating even without knowingly being dishonest or intending to deceive.
Criminal law experts hailed the judgment as one of the most significant in a generation. Stephen Parkinson, a partner at the London law firm Kingsley Napley, said convictions could be easier across a range of criminal offences as a result of the ruling, with juries no longer having to find that offenders had thought they had behaved dishonestly. “For 35 years juries have been told that defendants will only be guilty if the conduct complained of was dishonest by the standards of ordinary, reasonable and honest people,” Parkinson said.
However, juries would have to find that “the offender must have realised that ordinary honest people would regard their behaviour as dishonest,” he said. “The Supreme Court has now said that this second limb of the test does not represent the law and that directions based upon it ought no longer to be given by the courts.”
Audrey Ferrie, a lawyer at the London firm Pinsent Masons, described the ruling as “a significant moment for the gambling industry. For the first time, the Gambling Act has been enforced for the offence of cheating.”
Ferrie added that the Supreme Court judgment “has shown that there is no such thing as honest cheating … from now on professional gamblers will need to be mindful of whether the skill and knowledge they use to beat the house could be construed as dishonest interference with the process of the game”.
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Lord chancellor backs ‘triage’ system for legal aid advice
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Public funds for a “triage” system of advice will be considered as part a review of legal aid cuts, the lord chancellor told MPs yesterday.
David Lidington (pictured), who is also the justice secretary, said that he was about to announce a review of the impact of the reduction of legal aid eligibility under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The cuts have been widely criticised, including by senior judges.
Lidington said that the rise of litigants-in-person in the courts needed to be addressed. “I am not making a promise but I am perfectly willing to look at the argument that there could be a saving of money if we had some kind of triage legal advice up front,” he said.
Another way to tackle the problem would be to reform the courts, he said, adding that systems were being tested where some money claims would not require people to instruct lawyers at all.
He added that legal aid still accounted for a quarter of his department’s budget and stood at some £1.6 billion a year.
The lord chancellor was making his first appearance before the justice committee of the House of Commons since taking up his post. Bob Neill, chairman of the committee, challenged Lidington over the fact that the cuts had led to fewer people resorting to mediation in family law cases rather than the courts.
Neill suggested that that “there was real concern that the cuts had proved to be a false economy”.
The lord chancellor said that the announcement of a review of the cuts was imminent.
Neill also challenged the justice secretary over changes to the way lawyer fees will be calculated for work in the crown courts, saying that the proposals could lead to unjust levels of remuneration.
Lidington confirms rise in personal injury small claims limit
The Ministry of Justice will plough on with plans to increase the small claims limit to £5,000 for road traffic accidents and £2,000 for other personal injury claims, the lord chancellor has confirmed to MPs.
Claimant lawyers have objected to the moves, which have been mooted for some time. “The unfairness inherent in these rises is staggering and does nothing to prevent fraud,” said Qamar Anwar, managing director of First4Lawyers, a claims management referral firm.
“For most people, a claim worth £5,000 is not low value,” he said, arguing that more than 95 per cent of road traffic accident personal injury claims were valued at less than £5,000.
“So the impact could be huge. The reality is that innocent accident victims will be left unrepresented to deal with the insurer’s lawyers, making under-settlements inevitable.”
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Private data on the super-rich could be exposed after law firm hack
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Confidential data on super-rich individuals and leading private equity houses is likely to be exposed after the fourth biggest offshore specialist law firm admitted that it had been hacked.
The firm, Appleby, revealed that that it had suffered an incident last year “which involved some of our data being compromised”.
Appleby, which has offices in Bermuda, the Cayman Islands and the Channel Islands among other jurisdictions, has only acknowledged the security breach now because it has recently received inquiries from a group of journalists making allegations about the firm and its clients, it said in a statement.
It said that the allegations came from the International Consortium of Investigative Journalists, a Washington-based organisation, and appeared to be based on information derived from last year’s data breach.
“We are disappointed that the media may choose to use information which could have emanated from material obtained illegally, and that this may result in exposing innocent parties to data protection breaches,” Appleby said.
“Having researched the ICIJ’s allegations we believe they are unfounded and based on a lack of understanding of the legitimate and lawful structures used in the offshore sector.”
The firm added that it was “committed to protecting our clients’ data and we have reviewed our cybersecurity and data access arrangements following a data security incident last year which involved some of our data being compromised”.
The firm’s cybersecurity arrangements “were reviewed and tested by a leading IT forensics team and we are confident that our data integrity is secure”, it said. The Lawyer magazine’s league table of offshore law firms placed Appleby as the fourth largest by number of lawyers, behind Maples and Calder, Walkers and Mourant Ozannes. Last year it had 205 qualified lawyers and 60 partners.
And more controversy for Appleby in Mauritius ...
Appleby was embroiled in another controversy at its Mauritius branch when the firm was criticised by a court for agreeing to help a woman “wipe out all traces” of the source of funds that she was attempting to hide from her daughter.
The Times reports that Gilbert Noel , a lawyer-partner at Appleby Mauritius, agreed to help the film star Edoarda Crociani, 77, in a long-running dispute with one of her two daughters over the family wealth.
A ruling by the Royal Court in Jersey last month found that Appleby Mauritius had manufactured correspondence, transferred a promissory note worth millions “in a brazen attempt” to evade the court’s jurisdiction and acted in a “shameful and hostile” manner towards Cristiana after apparently siding with her mother.
Appleby said that it could not comment on the Jersey case because of confidentiality. It added that it had treated it “extremely seriously” with “immediate action” taken against Noel.
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Toblerone settlement ‘gives green light to copycats’
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A deal over chocolate bars that brought an end to three-months of legal sniping could “open the door to copycats”, intellectual property lawyers said yesterday.
This week Mondelez, the American company that owns the Toblerone brand, cut a deal with Poundland, the British cut-price retailer that planned to market a triangular-shaped chocolate bar in the run up to Christmas.
The settlement will force Poundland to redesign its Twin Peaks confectionery, but not before it has put 500,000 of them on sale in “distinctive packaging” for the holiday season.
“The settlement suggests that Poundland accepts that it has sailed a bit too close to the wind in this instance,” Tom Lingard, a partner at the Surrey law firm Stevens & Bolton, said. However, he added that “Mondolez would rather let Poundland sell off its existing stock than risk losing an infringement action altogether. This could open the door to copycats.”
The lawyer predicted that the distinctive packaging of the Poundland bar “will be very different from the original version. As the shape of the bar is not visible when wrapped, this will go a long way to alleviating Mondolez’s concerns about confusing the public.”
Legal experts have suggested that commercial relationships were crucial in encouraging a settlement to the dispute, and Lingard pointed out that there was a marketing benefit to the legal wrangling. “It is worth considering the significant publicity this has generated for Poundland, which was quite possibly the point of the whole exercise,” he said.
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In Brief
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In today’s Times Law …
And elsewhere …
- Celebrities braced for big bill after new victory for taxman – The Times
- Couple face £200,000 legal bill for pot plant war – The Times
- Clyde & Co’s latest US merger talks falter amid partner defections—Legal Week
- Midlands council enters legal services market – Law Gazette
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Special focus: legal aid
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Tide is turning on legal aid cuts
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There are signs that the government will reform the law that halved eligibility for state help with legal problems
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Analysis
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Plain packaging: booze and sweets could fare better than cigarettes
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The arguments that removed logos from tobacco products will be less effective against alcohol and chocolate packaging, argues Bethan Hopewell
Tobacco is now subject to plain packaging legislation in the UK, France and Australia, and public health campaigners are turning their attention to other potentially harmful products, including alcohol and confectionery. And legal arguments used to challenge tobacco plain packaging are a guide to how alcohol and confectionary goods are likely to fare.
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Read the full story
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Analysis
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Multinationals must be leaders, not followers, with risk management
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Amanda Raad pores over the results of a senior executive survey to find that corruption, money laundering and cyberattacks all make for risky business
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Tweet of the day
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| Incredible request from chair of the bench at Leamington Magistrates’ court not to be named in reports. JPs are not anonymous. #Law101 |
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@JoshPaynePA
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Blue Bag
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Tribunal fee challenge solicitor named lawyer of the year
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An in-house trade union lawyer has won a prestigious award for organising the legal challenge against employment tribunal fees, which forced the government into a climb down.
Adam Creme, the head of legal services at Unison, the second largest trade union in Britain, won the lawyer of the year gong at the human rights awards run by Liberty, the campaigning group. The court victory forced ministers to abandon employment tribunal fees, and the Ministry of Justice announced on Friday that it was starting the first stage of refunding more than £27 million to litigants who paid them.
Martha Spurrier, the director of Liberty, described Creme’s work on the challenge as helping “to reaffirm that access to justice is a right, not a privilege for those who can afford to pay extortionate tribunal fees.
“That the government felt compelled to so swiftly refund all those who've been forced to pay the fees shows just how powerful his arguments were.”
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Burges Salmon rubbishes art collection
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Will Gompertz, the BBC’s arts editor, may have taken his lead from the lawyers who commissioned him as the celebrity turn for their reception at the National Gallery in London, as he appeared to have been billing by the minute.
Auntie’s man spoke for a staggering half an hour without notes on Tuesday night as he lectured guests of the law firm Burges Salmon on the roots of modern art. Worthy and impressive as that was, Gompertz rather missed a fundamental point of law firm receptions: as far as the punters are concerned, the venue plays a distant second fiddle to the free booze and nosh.
The event also afforded a refreshing insight to the firm’s approach to art generally. While many City of London legal practices are tripping over each other to collect or exhibit as much art as they can get their mitts on (see the recent Brief Premium coverage of Stewarts and Dentons), Burges Salmon is much more blasé.
A source at the event told guests that the firm had gone through a stage of collecting the work of art students. But during a recent office move it decided to prune the collection and asked an expert from Bonhams, the auction house, to advise on whether it held any hidden treasures.
No, was the abrupt answer. The firm then decided to shift the collection through a charity auction. Many went to welcoming homes, but those that were left went … off to the tip.
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In the House
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Apple’s general counsel takes $23m bite
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Apple’s general counsel is the highest paid in-house lawyer in the US and probably the world, according to figures published this week.
Bruce Sewell is reported to have received an overall remuneration package worth $22.8 million (£17.2 million) last year, putting him well ahead of the second place lawyer, Time Warner’s Paul Cappuccio.
However, it would be difficult for Cappuccio to complain too vociferously, as his employer is reported to have paid him $16.2 million.
Rounding out the top five were Denise Keane, the recently retired general counsel at Altria Group, who was paid a total package of $10.8 million, Alan Braverman, the top lawyer at the Walt Disney Company, who took home total remuneration of $10.2 million, and Twitter’s Vijaya Gadde, who was paid a total package of $9.8 million.
The results vary slightly from an earlier survey by Corporate Counsel magazine, which placed Keane at the top of the pile. However, researchers at Equilar, the data gathering company that compiled the latest figures, explained that its table included stocks and options as well as cash payments.
The Equilar study also highlighted a significant gender pay gap in the legal departments of US corporations. The researchers found that total remuneration for female in-house lawyers at companies registered with the Securities and Exchange Commission last year had increased by 6 per cent.
Despite that rate of growth being nearly double that for their male colleagues, men earned on average more than 8 per cent than women.
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The Churn
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Ex-lord chief takes Justice council role
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Lord Thomas of Cwmgiedd, the recently retired lord chief justice of England and Wales, has been elected to the council of Justice, the cross-party law reform and human rights campaigning group.
Joining him on the council is another heavy hitting former judge, Lord Dyson, who has recently retired as the Master of the Rolls. Sonali Naik, a barrister at Garden Court Chambers in London, and Andrew Onslow, QC, of 3VB chambers, will also be joining, it was decided at Justice’s annual general meeting.
The group also confirmed its current board members: Peter Binning, a founding partner at the London law firm Corker Binning, Liz Campbell, a former chairwoman of the Surrey Police Authority, Alexandra Carr, a senior associate at the London law firm Howard Kennedy, Deba Das, a senior associate at the City of London “magic circle” firm Freshfields Bruckhaus Deringer, and Kate Saunders, senior public policy manager at the Guardian.
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Closing Statement
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Judge hits wrong note with advocate
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When it came to judges being horrid to the advocate, the austere High Court judge Melford Stevenson could be as unpleasant as most when he wanted to be, writes James Morton.
He seems to have taken a singular dislike to Sir Lionel Thompson, who was part of the defence counsel team in the first Kray murder trial. The judge referred to him as “Mr Thompson” and then, when it was pointed out that Sir Lionel was a baronet, deliberately addressed him as “Sir Thompson”.
The judge did get his comeuppance from Michael Beckman, QC, whom he knew well and whom he addressed as “Mr Beckstein”. Quick as a flash, Beckman replied: “My lord, I may be Jewish but I am not a grand piano.”
On that occasion, Stevenson sent a rare note of apology.
James Morton is a former criminal law solicitor and now author
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