Read Brief Premium for in-depth coverage of the law
View in your browser
The Times
Monday October 30 2017
The Brief
Frances Gibb Jonathan Ames
By Frances Gibb and Jonathan Ames
This morning’s must-read of all things legal, including news, comment and gossip. For more in-depth coverage, read ...
Subscribe to The Brief Premium
Learn more
Force employers ‘to believe sexual harassment complainants’
premium Analysis: Time for a presumption of truth about sexual harassment
BA luggage judge retires before disciplinary hearing
£14bn Mastercard class action goes to Court of Appeal
FA litigates to show red card to match streaming
Bar watchdog to register youth court lawyers
Press freedom laws ‘at risk from Labour’
Justice secretary in prisoner voting U-turn
Blue Bag diary: One day they’ll give awards for giving the most awards …
premium Scalp of the Week: Competition heats up for niche sports practices
premium Analysis: Legal Services Act ten years on – not so radical
premium Special focus: Wales creeps closer to separate legal system
Tweet us @timeslaw with your views.
Legal Services Act – not so radical
The so-called Tesco law has yet to bring about the revolution promised a decade ago, but change is coming, writes Iain Miller
Read in full
Story of the Day
Outdated divorce laws force couples to invent adultery
Divorcing couples in England and Wales are forced into making false and exaggerated allegations of adultery or bad behaviour under “fault-based” laws, a report published today finds.

The result of the 50-year-old system is that people often have to undergo a “painful, and sometimes destructive, legal ritual” with no obvious benefits to any parties, says The Times this morning.

To achieve a divorce quickly most couples must make dishonest allegations that “can create or exacerbate unnecessary conflict with damaging consequences for children,” according the report by the Nuffield Foundation. The use of false claims that are rubber-stamped by courts is now more routine than the staged or bogus “hotel adulteries” with strangers of the 1930s, it concluded.

The use of fault did not stem from “a peculiarly high level of marital infidelity or misbehaviour in England and Wales” but from people’s wish to achieve a divorce within months rather than wait for a minimum of two years if fault was not alleged.

“In practice, therefore, divorce petitions are best viewed as a narrative produced to secure a legal divorce,” the report says. Some 60 per cent of divorces in England and Wales are now based on allegations of fault, ten times the figure in Scotland or France, the study said.

The report, Finding Fault, produced by the charitable trust with academics, is the first full-scale study of how the divorce laws work since the 1980s.
Scalp of the week
Competition heats up for niche sports practices
More in-house lawyers at clubs and off-field shenanigans mean ample pickings
Read in full
News round-up
Force employers to believe sexual harassment complainants, says lawyer
Employers should be under a mandatory duty to presume that women making allegations of sexual harassment against bosses or colleagues are telling the truth, a prominent lawyer says today.

The controversial call for a change in employment rules has set specialist lawyers at odds with each other as those acting for employers argue that such a radical move would overturn a fundamental principle of English law: the presumption of innocence.

But Kiran Daurka, partner at the London law firm Leigh Day, argued that the recent allegations of sexual harassment and rape made against the Hollywood film producer Harvey Weinstein have highlighted a fear among women that their allegations will not be believed. Weinstein denies all allegations of non-consensual sex.

Ms Daurka said that the global social media hashtag #metoo, which has emerged in the wake of the Weinstein allegations and is used by women to highlight their own experiences, should be matched by a #webelieveyou approach from employers. “Where there has been more than one complaint against an individual, there should be a presumption of truth as to the facts presented by the complainant,” she said in an article for The Brief.

Ms Daurka alleged that “at present, employers permit a culture in which women who make difficult disclosures about their experiences are doubted”. She told The Brief that the “starting point” for many employers when dealing with allegations of sexual harassment in the workplace is that “the women complainants are being vindictive”.

However, her comments have sparked controversy within the legal profession, with some suggesting that her arguments are reminiscent of the approach by the Metropolitan police when investigating allegations of a VIP paedophile ring in Westminster. At the time the police said that claims of abuse made by an anonymous man known as “Nick” were “credible and true”. A report by Sir Richard Henriques, the retired High Court judge, sharply criticised the police for falling for “false allegations”.

Other employment law specialists dismissed Ms Daurka’s proposals as “dangerous and wrong”. Ronnie Fox, the founder of Fox, a specialist employment law firm in the City of London, said that forcing bosses to start investigations from a position of believing the complainant “overlooks the fact that it is well established that people make complaints at work for all sorts of motives. Sometimes complainants are malicious, sometimes they are simply misguided”.

Mr Fox also argued that amending employment rules in that way would “bring workplace investigations into disrepute” and as a result trigger waves of satellite litigation in the courts.

Emma Gross, an employment law specialist at London law firm SA Law, added that it was "important that employers and everyone else involved in these sorts of cases work hard to make sure multiple accusations don’t colour their view of how the case is treated – everyone is innocent until proven guilty and everyone deserves a fair hearing". She agreed with Fox that "it’s against natural justice to presume anything and it’s important each individual claim is dealt with judiciously".

Call for three-year limit on sex abuse allegations

Nick Freeman, a criminal defence lawyer known as “Mr Loophole” and renowned for representing sportspeople and other celebrities, has called on the government to impose a three-year time limit on allegations of sexual harassment and abuse.

Freeman said curtailing the legally allowed period between the alleged crime and a report to the police would “provide a fairer system to both complainants and defendants, and it will be easier for the Crown Prosecution Service to accurately assess if there would be a 50 per cent chance of a conviction”.

See Analysis below
BA luggage judge retires days before disciplinary
A High Court judge who had been effectively suspended for 18 months retired days before he was to face a disciplinary hearing that could have led to his removal from the bench.

In a statement on Friday, it was announced that Mr Justice Peter Smith (pictured), 65, retired as of October 28, which means that he will face no disciplinary action.

The senior judge in the High Court’s chancery division, who has been suspended on full pay of £181,566, had posed the judiciary with one of its biggest headaches in decades. He faced two serious complaints: first that he made repeated comments about his own missing luggage when hearing a case involving British Airways; and second that he wrote a letter about a barrister that the Court of Appeal condemned as “shocking” and “disgraceful”.

The judge had agreed not to sit in May 2016, pending investigations, meaning that he was effectively suspended on full pay. However, disciplinary proceedings could not begin after doctors agreed that he was mentally unfit to attend a hearing or respond to allegations. Finally, a hearing date was set for today and tomorrow.

On Friday the Judicial Conduct Investigations Office (JCIO) issued a statement confirming that it had launched an investigation into the British Airways comments in July 2015 and then into the second case in May 2016. It added: “Mr Justice Peter Smith retires with effect from 28th October 2017. In accordance with JCIO rules, all conduct investigations cease immediately when a judicial office holder retires, and as such investigations into Mr Justice Peter Smith cease on that date with no outcome.”

Senior judges will have breathed a sigh of relief. If the hearing had led to a recommendation that the judge step down and he had refused, then the only way to have removed him from the High Court bench would have been through the lord chief justice and lord chancellor seeking an unprecedented motion of both houses of parliament.

Mr Justice Peter Smith has a colourful record. In 2006, he found that the author Dan Brown had not breached copyright when writing his best-seller The Da Vinci Code, and then inserted a code himself into his ruling.

And he has run into trouble before this latest round of complaints. In 2008 the Office for Judicial Complaints reprimanded the judge after he failed to step down from a case involving a law firm with whom he had had negotiations over the possibility of joining them on a £750,000-a-year package. The Court of Appeal criticised his “wholly inappropriate” behaviour in that case and his actions were found to amount to misconduct.

In 2011 the Court of Appeal ordered him to stand down from a case brought against law firm Mills & Reeve after he expressed views seen as sympathetic to the firm.
£14bn Mastercard class action goes to Court of Appeal
The man who is single-handedly battling to force one of the world’s largest credit card companies to reimburse British consumers over allegedly illegal fees is taking his case to the Court of Appeal.

Lawyers for Walter Merricks (pictured), the former financial services ombudsman, said on Friday that they had applied for permission to appeal against a decision by the Competition Appeal Tribunal earlier this year that the £14 billion landmark class action claim had no merit.

In a statement from the US law firm Quinn Emanuel’s London office, Merricks’ legal team said there was “legal uncertainty as to whether there is a direct right of appeal to the Court of Appeal or whether it needs to go to the High Court for a judicial review, hence filings being made in both courts”.

Merricks - a qualified solicitor who is a former senior official at the Law Society of England and Wales and the current chairman of Impress, the state-approved press regulator - said he was “determined to pursue this claim”. He pointed out that in 2007 the European Commission ruled that Mastercard had broken competition rules by setting transaction fees at an unlawful and excessive level for 16 years.

Merricks argued that the company’s practice “inevitably led to consumers paying higher prices than we should have done because retailers would have passed on these costs. “Since that time Mastercard has done nothing to make recompense to consumers for its wrongdoing,” he said. “The total amount of the overcharges fell either on retailers, if they did in fact absorb the costs, or on consumers, which is where at least most of the cost likely fell as retailers looked to recover the fees they were paying through higher retail prices.”

Merricks said he was also bringing the claim because the “collective action regime was brought into being by parliament to help access to redress where proven wrongdoers like Mastercard have inflicted damage on a wide class of consumers. In our case it would be totally impractical for members in the class to bring claims on an individual basis, and if our case is not allowed to proceed on a class-wide basis a vast number of individuals who suffered loss get no compensation”.

Mastercard has said that in its view an appeal against the appeal tribunal’s decision would be “without merit”.
FA uses wave of litigation to show streaming the red card
Football bosses redoubled their efforts to crack down on pubs illegally streaming live matches as court cases involving the sport dominated copyright litigation last year.

The Football Association brought 39 cases to court last year, second only to PPL, the body music licensing body. The number of cases brought by the FA has increased over the last four years; just five cases were brought to the High Court by the sport’s authorities in 2013.

Lawyers say that the rise in football-related copyright litigation was driven by several recent landmark rulings against pubs and restaurants. The FA is understood to be trying to stem losses caused by viewers streaming matches illegally.

The City of London law firm RPC pointed out that viewing figures for Premier League games through some subscription services fell last season, with illegal streaming services likely to have played a part in the drop. BT and Sky, which both broadcast domestic football, were also among the top ten copyright litigants last year, bringing eight and six cases, respectively, in the High Court.

“The Football Association is tackling illegal streaming and underpayment of licensing fees with a robust litigation strategy,” Ciara Cullen, a partner at RPC, said. “And pubs are feeling the brunt of the challenge. Broadcasting companies which own the rights to certain games no doubt want football’s governing bodies to do a good job at protecting against unlicensed coverage in order to protect their valuable assets.”
Bar watchdog to register youth court lawyers
Barristers appearing in the youth courts will be required to register that specialism with the profession’s regulator as part of a bid to boost standards of advocacy for vulnerable children.

The Bar Standards Board announced on Friday that it had revised its practice rules so that barristers doing youth court work must sign a register. Officials said the move would allow the regulator “to identify barristers who are working in the Youth Court and to promote standards in those proceedings”.

In addition, the board said that barristers will in the future be required to provide information on their practice areas, including any public access work, and the percentage of income they derive from each area.

The move may be seen by some lawyers as unnecessary prying, but the regulator claimed that it was designed to ensure that barrister are complying with updated anti-money laundering regulations. The board also argued that the move was needed to “improve the BSB’s understanding of the work of barristers, thereby helping them to target regulation more effectively”. Barristers will also be required to to provide a unique email address to the regulator.

Ewen MacLeod, a director at the board, said: “We are particularly keen to highlight the important role of those practising in our youth courts and the skills necessary for this kind of work.”
Press freedom laws ‘at risk from Labour’
Ministers have warned that laws that protect press freedom, catch terrorists and expose drug cheats are at risk after Labour announced plans to amend data storage legislation, reported The Sunday Times.

A Labour amendment to the Data Protection Bill, expected to be voted on tomorrow, would create an absolute right to privacy, which ministers say will tear up exemptions that allow journalists to protect sources.

Removing the exemptions may also give terrorist suspects unrestrained access to information held about them by the security services and stop anti-doping agencies processing health data on athletes to catch drug cheats.

The Labour peers Lord Stevenson of Balmacara and Baroness Hayter of Kentish Town, backed by the Liberal Democrats, have tabled an amendment to insert Article 8 of the EU’s Charter of Fundamental Rights into the Data Protection Bill. They argue that Britain’s data laws must remain the same as those in the EU, or UK businesses will not be able to continue trading with the EU after Brexit.

Matt Hancock, the digital minister, said the amendment would have the opposite effect, with serious unintended consequences. “The Data Protection Bill brings privacy laws into the modern age,” he said, accusing Labour of a “ploy” that “would place all the exemptions at risk and make our data laws non-compliant with EU rules, which threatens the vital free flow of data after we leave the EU”.
Justice secretary in prisoner voting U-turn
Prisoners are to be granted the vote in a move that will raise fresh questions about the government’s approach to law and order.

Those sentenced to less than a year behind bars who are let out on day release will be allowed to go home to vote after the lord chancellor and justice secretary, David Lidington, decided to tear up the existing ban, The Sunday Times reported.

Plans were circulated to other ministers last week after a 12-year dispute with the European Court of Human Rights that ruled in 2005 that it was a breach of prisoners’ human rights to deny them the chance to vote.

People drop off the electoral roll after one year, and prisoners will not be allowed to apply to rejoin it while they are locked up. The plans are expected to affect “hundreds” of prisoners. A senior government source said: “This will only apply to a small number of people who remain on the electoral roll and are let out on day release.

“These are not murderers and rapists but prisoners who are serving less than a year who remain on the electoral roll. No one will be allowed to register to vote if they are still behind bars.”
In Brief
  • Homeowner wins landmark court case to ban junk mail – The Mirror
  • Divorce case settled at last after 16 years – The Times
  • Employers are watching nervously as the first few businesses publish their gender pay details -- The Times
  • RBS in sight of sub-prime settlement with US Justice Department – The Times
  • Wife of British man killed in Kiev takes legal action to prove her innocence – Sunday Times
  • Former attorney-general Lord Goldsmith billed Russian lawyer £960 per hour for sanctions advice – Sunday Times
  • Hotcha's dreams turn sour after tax raids – Sunday Times
  • Government to unveil crackdown on bookies over £300-a-minute betting machines – Sunday Times
Time for a presumption of truth about sexual harassment
Lack of action from employers has encouraged women not to report incidents, Kiran Daurka writes

We need a mandatory duty on employers to record and investigate allegations of harassment through trained individuals who are equipped to deal with these issues outside of the standard grievance process. Let’s change the conversation before we return to the status quo.
Read the full story >
Special focus: Devolution
Wales creeps closer to separate legal system
As the Welsh assembly gains more power, the arguments for a distinct jurisdiction become stronger
Read in full
Tweet of the day
Flicking through HMCTS’ Coping with Cutbacks pamphlet and I saw this “alternative cost cutting wig”. Thought some o…
Blue Bag
One day they’ll give awards for giving the most awards …
Legal profession backslapping hit great heights last week when Chambers and Partners, purveyors of directories to vain lawyers since 1990, doled out its annual Bar Awards.

Awards inflation has been an issue for the last five or so years, as various publications and organisations vie to outdo each other. But last Thursday, Chambers set a ludicrously high bar by throwing out 69 awards at a ceremony at Hilton on Park Lane in London.

Many observers suggested the biggest medal should have gone to Stephen Mangan, the Cambridge law student turned comedian. Recently The Brief reported on the unruly audience at the Law Society’s “excellence awards” – but apparently that mob were pussycats compared to the barrister crowd at the Chambers gig.

During what must have seemed to Mangan to be an interminable evening, the self-confessed “failed lawyer” struggled to be heard as he repeatedly – and with increasing frustration – beseeched the audience to be quiet. “You’re a noisy lot,” repeated the poor man, effectively to himself as the noise levels were unabated.

A blasting soundtrack – similar to the curse at modern Twenty20 cricket and rugby union international test matches – presumably did not help. Bizarrely, Shaggy’s It Wasn’t Me accompanied the winners in the professional negligence category, while Queen’s Under Pressure was the track for the “professional discipline” awards. For the traditionalists, The Beatles' A Hard Day’s Night accompanied the winners of the employment awards to the stage.

But who actually won?

Organisers should have given achievement awards to all who survived the event, but in the end they stuck with the tradition of recognising a professional lifetime’s work.

Two lawyers and a chambers administrator picked up lifetime achievement awards: Frank Burton, QC, a personal injury specialist at 12 King’s Bench Walk chambers in the Temple; John Hendy, QC, an employment law doyen at Old Square Chambers in London; and Carolyn McCombe, the chief executive of 4 Pump Court in the Temple.

The main set of the year prize went to Brick Court Chambers in London, while the organiser dodged the London-centric bullet by also handing out a regional set of the year prize, which went to Guildhall Chambers in Bristol.
Quote mark
Quote of the day
“I found I couldn’t sleep and was waking early. I tried hypnosis, but it didn’t work. I can understand people who break down under stress, because I reckon I came quite close to it.”
Lord Phillips of Worth Matravers, the former inaugural president of the Supreme Court, telling The Guardian about the pressure he was under when he chaired the inquiry into the BSE in cattle crisis in 2000.
Read the full story >
If you no longer wish to receive these communications, please follow this link to edit your email preferences. You will continue to receive newsletters with exclusive benefits and updates, Times+ newsletters, offers and promotions and market research emails, provided you have not unsubscribed from those individual communications.

This email is from a member of the News UK group. News Corp UK & Ireland Limited, with its registered office at 1 London Bridge Street, London, SE1 9GF, United Kingdom is the holding company for the News UK Group and is registered in England No. 81701. VAT number GB 243 8054 69.

To see our privacy policy, click here.