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The Times
Wednesday September 27 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 ...
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Today
MARTYN DAY WAS 'NOT AN HONEST' WITNESS
We’re better off without libel juries, says judge
Uber taken to tribunal for ‘putting female drivers at risk’
Civil partnerships rise for first time since same-sex marriage law
Ex-oil company bosses charged with fraud
Dentons retains top spot in China revenue league table
Bust Scottish law firm paid ‘exorbitant’ interest on loans
Blue Bag diary: Chakrabarti takes the fun out of the law
premium Analysis: In London to stay, regardless of Brexit
premium Special focus: Will May woo Trudeau for a post-Brexit trade deal?
premium Analysis: We need more detail on security after Brexit
Tweet us @timeslaw with your views.
 
Story of the Day
Martyn Day was not a ‘credible, honest’ witness, says tribunal lawyer
A leading solicitor who was cleared over making false claims of murder and torture by British troops by Iraqis was not a “credible, honest or convincing witness”, a tribunal solicitor has found.

Martyn Day (pictured, centre) was cleared of all charges by a majority of the Solicitors Disciplinary Tribunal (SDT) in June but the dissenting tribunal member said that “on numerous occasions he failed to give clear and succinct answers to straightforward questions”.

The comments come in the full tribunal judgment published yesterday after the three-man tribunal published its findings in June.

Day and two other members of his firm, Leigh Day, were cleared of all charges but Richard Hegarty, the senior solicitor member on the panel and a former member of the Law Society’s council, dissented.

In the 213-page judgment released Hegarty said that Day’s answers to questions “contradicted statements he had made at the relevant time or did not accord with contemporaneous documents. He endeavoured to argue that some documents did not mean what they clearly said.”

The judgment adds that Hegarty “would have expected [Martyn Day], as the senior partner, to accept some responsibility for his actions and those of his co-respondents but he took the stance that he did nothing wrong throughout the period in question”.

Day’s partner, Sapna Malik (pictured right), was “far more credible in giving her evidence and was more prepared to accept that she did not always get it right”. Day declined to comment yesterday.

The tribunal hearing involving the firm and its lawyers ran for 22 days and legal costs are estimated to have been more than £10 million in total. The defendants are understood to have spent more than £7.5 million.

A Solicitors Regulation Authority spokesperson said: “We will be reviewing the judgment in detail and considering next steps. Any appeal against this decision would need to be lodged within 21 days of publication.” A costs hearing will be arranged within 35 days after publication of the findings.

Hegarty is senior partner and founder of Hegarty Solicitors in Peterborough, which specialises in commercial property and solicitors’ regulation. He studied law at Leicester University and set up the firm in 1974.

He served on the council of the Law Society for 16 years from 1989 to 2005 and in 2009 was appointed to the SDT.

The tribunal chairman in the Leigh Day hearing was Simon Tinkler, a mergers and acquisitions partner at Clifford Chance, one of the City of London’s “magic circle” firms. The lay member was Lucinda Barnett, a magistrate since 1986.
News round-up
We’re better off without libel juries, says judge
Inheritors of the mantle of legendary QC George Carman can forget the days of playing to the emotions of a jury, if comments by a High Court judge in charge of defamation disputes are anything to go by.

Claiming that he “does not regret the passing of the jury at all”, Mr Justice Warby said that there were many advantages to the “virtual abolition” of juries in defamation cases.

“It has removed the territorial disputes that quite often used to arise over whether a given issue is within the province of the judge, or that of the jury,” he said, adding that it had all but eliminated the practice of arguing “the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed of law and fact”.

The judge was speaking at the annual conference of the Media Law Resource Centre, an American organisation, at the Law Society headquarters in London. He said that as a barrister specialising in media law he had spent time arguing points before a judge and then again before a jury. “It was not a particularly worthwhile activity or one that gave me particular pleasure,” he said.

Earlier this year, the judge launched a consultation with media law litigators and judges to see how procedures might be improved. He said that the response was high and about 90 per cent of respondents said the relevant civil procedure rules fell short. The vast majority considered costs to be the most important case management issue, followed by delay. Almost all respondents supported the creation of a users' group, he said.

One proposal is the creation of “a kind of judicial triage” with each media case reviewed by a specialist judge at the time of filing or soon after with a view to taking case management measures.

“In principle one can see the attraction, though it would be a marked departure from the norm,” the judge said, pointing out that the move had “fairly obvious and potentially problematic resources implications”.
Uber taken to tribunal for ‘putting female drivers at risk’
A female Uber driver in London has issued discrimination proceedings against the company, claiming that its practices put women at risk.

The 44-year-old woman, who wishes to remain anonymous, is bringing the claim at an employment tribunal. She claims that Uber drivers do not know a passenger’s destination until they are already in the car, with no option of cancelling if the passenger wants to go to a remote or unsafe area.

If a passenger becomes aggressive, the driver cannot cancel the journey and faces a customer complaint and low rating, which could affect future work, if they ask the passenger to leave.

The claim, lodged at the Central London Employment Tribunal, argues that Uber should allow drivers to challenge complaints and low ratings so that drivers do not risk losing their jobs if they ask aggressive passengers to leave their cars.

Maria Ludkin, legal director at the GMB union, which is backing the woman’s claim, said: “Once again we have a member with serious concerns about Uber’s systems and practices, which place the basic safety needs of the worker as secondary to the imposition of a rigid and purely profit-based model.

“We look forward to allowing the courts to examine whether this aspect of their model discriminates against women drivers.”

Nigel Mackay, a lawyer at the London law firm Leigh Day, which is representing the driver, said: “Uber’s policies do not do enough to protect female drivers. In particular, if a driver is faced with the threat of assault from a passenger and asks him to leave, she risks complaints and low ratings, with no right of reply, and ultimately may lose her job as a result. Our client no longer feels able to drive in the evening or at night-time, suffering a loss of income as a result.

“We believe that Uber should not only ensure the safety of its passengers but also all of its drivers, and provide as much protection as possible to women to ensure that they are not vulnerable to assaults from passengers.”

Last week Transport for London decided not to reissue Uber’s licence to work in the capital when it expires on Saturday. Uber plans to appeal and can operate until all options are exhausted.
Ex-oil company bosses charged with fraud
Two former executives at the British oil explorer Afren are to be charged with a £300 million fraud that is alleged to have led to the collapse of the business.

Osman Shahenshah and Shahid Ullah, who were Afren’s chief executive and chief operating officer respectively, face criminal charges relating to deals in Nigeria, the Serious Fraud Office (SFO) said.

They will appear this morning at Westminster magistrates’ court charged with charged with two counts of fraud by abuse of position, contrary to the Fraud Act 2006, and two counts of money laundering, contrary to the Proceeds of Crime Act 2002.

The SFO also celebrated a significant victory in another case, as FH Bertling, a logistics company, and six of its former employees were convicted of conspiracy to make corrupt payments to an Angolan state oil company agent.

The convictions were announced at the end of the trial of another defendant, Peter Ferdinand, 78, who was acquitted at Southwark crown court on Thursday.
All of the defendants had pleaded guilty to the £15 million fraud, which SFO officials said was aimed at securing and retaining freight and forwarding business in Angola.

Jose Morreale, 62, and Stephen Emler, 49, had pleaded guilty to the charges at a hearing this month. Joerg Blumberg, 71, Ralf Petersen, who has since died, Dirk Juergensen, 46, and Marc Schweiger, 47, pleaded guilty in March. The company pleaded guilty at a hearing in August.

“This is a clear example of the SFO holding a company and its senior executives to account for corrupt behaviour,” David Green, QC, the SFO director, said.

He added: “Corrupt practice by British companies such as this undermines the UK’s reputation as a safe place to do business and distorts the market, not to mention the damage it causes in the countries where the bribes are paid.”
Civil partnerships rise for first time since same-sex marriage law
Civil partnerships remain unpopular after the legalisation of same-sex marriages, specialist lawyers have argued.

Government figures published yesterday illustrate “the shocking lack of rights for those who cohabit without marrying in England and Wales”, one leading family solicitor said.

The Office for National Statistics said that there were 890 civil partnerships in the jurisdiction last year, an increase of 3.4 per cent on the previous year. The office noted that it was the first annual increase in civil partnerships since same-sex marriage was made legal in 2013.

More than two-thirds of the arrangements last year were between men, the highest proportion since it was introduced in 2005. London retained its position as the keenest region in England and Wales, accounting for nearly 40 per cent of civil partnerships. There were 1,313 civil partnership dissolutions granted in England and Wales in 2016, with 60 per cent to female couples.

“Whilst the latest ONS civil partnership figures reveal that there has been a slight increase in the number of same-sex couples choosing to enter into this form of union, they remain relatively unpopular among same sex couples,” said Jo Edwards, a partner at the London law firm Forsters and a former chairwoman of Resolution, a national group of family lawyers. “It appears that with the introduction of same-sex marriage, the appetite for civil partnerships has continued to decline.”

She claimed that “the real story … is the shocking lack of rights for those who cohabit without marrying in England and Wales”, and pointed out that ONS figures from last November showed that cohabiting couples were the fastest growing family type. Between 1996 and 2016 cohabiting couple families grew from 1.5 million to 3.3 million and that figure is likely to double again by 2032.

Edwards said that, despite this, “there is a lack of legal protection for cohabiting couples if their relationship ends through separation or death”.
Dentons retains top spot in China revenue league table
Dentons, they hybrid law firm that is home to more lawyers than any other in the world, has retained its position as the highest earning legal practice in China, according to research.

The firm, which is an amalgam of English and North American components, edged out King & Wood Mallesons, the Sino-Australian firm, whose London and European practice imploded earlier this year. Those two “western” practices were followed in the list by three domestic firms: Zhong Lin, Yingke and AllBright.

Revenue at the top 30 law firms in China rose by 30 per cent in 12 months, researchers from The Lawyer magazine reported. Income rose to nearly £2.9 billion in 2016. That came after a 20 per cent rise in fee income in 2015 compared with 2014.
Bust Scottish law firm paid ‘exorbitant’ interest on loans
Directors at the failed Scottish law firm Pagan Osborne used short-term loans with “exorbitant” interest rates to help keep it afloat, according to administrators, Greig Cameron writes.

The firm, which traced its roots to 1826, fell into administration this month. Additional details about the collapse have now emerged after FRP Advisory, the administrator, published documents at Companies House. The documents outline the financial difficulties the partners had been battling for several years.

A move to Edinburgh in 2009 proved to be ill-advised with the expected gains in revenue never materialising, which meant a struggle to cover the costs of an operation in the Scottish capital.

The Bank of Scotland wrote off £1.3 million of debt in 2013, but the firm then took a short-term loan of £1.2 million from an unnamed individual. Pagan Osborne’s residential lettings arm was eventually sold to raise funds to repay the loan.

The administrators said that as a result of “cash flow problems and in order to clear liabilities with HMRC and others the company took out a number of short-term loans from subprime lenders with what are now clear were exorbitant annual interest rates”.

FRP estimates that the firm will owe between £2 million and £2.5 million once all claims against it have accounted for.

Thorntons, another law firm, took on more than 120 staff as part of a deal to buy Pagan Osborne’s assets but about 70 of those are expected to be made redundant.
Other Scottish law firms to have gone into administration wince 2013 include Semple Fraser, Tods Murray and McClure Naismith.

Solicitor stole £270,000 from his aunt

A solicitor who stole more than £269,000 from his aunt faces a prison term, Jamie Beatson writes.

William Walls was the sole partner in McQuittys law firm in Cupar, a town near St Andrews, when he was given power of attorney over the bank accounts of his elderly aunt, Mary Brown. But with his business in financial trouble Walls began withdrawing funds from the accounts to keep the firm, which specialised in property and estate agency, afloat for almost nine years.

The scheme was discovered by a Law Society of Scotland investigation into his business. Family members had also noticed withdrawals from Brown’s accounts.

Sheriff Alastair Brown deferred sentence until November to allow time for social work background reports, but warned Walls: “On any view I do have to consider the possibility of custody.” Walls has been released on bail.
In Brief
  • Law Society settles ‘abuse of dominant position’ case amid war of words – Legal Futures
  • Homophobia worse at Bar than other workplaces – Legal Cheek
Analysis
In London to stay, regardless of Brexit
Premium
More than a year after his firm, Haynes and Boone, launched in the Square Mile, Tim Powers explains why London remains crucial to the international plans of American practices

This much is certain about Brexit — London is still central to the world’s financial markets. We believed as much a year ago, when my firm opened in London through a merger announced a week after Britain voted to leave the EU.
Read the full story >
Analysis
Premium
We need more detail on security after Brexit
The UK may need to cede some sovereignty to Europe in the fight against terrorism, argues Mark Cotter, QC
Read in full
Twitter
Tweet of the day
Faculty and students protest and #TakesAKnee outside Georgetown Law, where Jeff Sessions is to talk about free spee… https://t.co/eglV1RKePL
@GrahamVyse
Blue Bag
Chakrabarti takes the fun out of the law
Labour’s groundbreaking justice policy was unveiled yesterday when Shami Chakrabarti, the shadow attorney-general, revealed the party’s fundamental position: no more lawyer jokes.

This could be a winner. Any lawyer who has been to a dinner party and found themselves subjected to a barrage of quips — sharks and lawyers, lawyers being tied to the bottom of the sea, lawyers being thrown out of aeroplanes — will doubtless be immediately tempted to vote for the red rose and buy a Jeremy Corbyn mug to boot.

Chakrabarti, who is not known in legal circles for having a finely tuned sense of humour, told a Young Labour Lawyers annual conference fringe event on wellbeing (natch) that her message to lawyers in the shadow cabinet is: “Self-loathing lawyers no more.”

The Law Gazette reported that she said lawyers “are part of the pillar of what’s left of the welfare state. One more heave [and] we will be part of the next consensus.” No, we couldn’t work out what that meant, either.
Calling all expert witnesses
A big shout out to expert witnesses: The Times in conjunction with Bond Solon, a London training consultancy, is conducting a survey focusing on issues around technology, costs and stress in the legal system.

Expert witnesses are encouraged to complete the anonymous survey, which shouldn’t take more than five minutes to complete.

The survey closes on October 27 and the results will be published in Times Law, The Brief Premium and on the Bond Solon website. To thank experts for their time, those completing the survey will be entered into a prize draw to win an iPad mini. The winner will be announced at the Bond Solon expert witness conference in London on Friday, November 10.
Closing Statement
Following the seal act
“On his day he was as good as anybody,” a barrister once said of Ernle Money, a member of the same chambers and the one-time Conservative MP for Ipswich.

Money could read a set of papers more quickly than anyone I know. His style as an advocate harked back to the more flamboyant ways of the past. He had red hair and a temper to match.

At a moment’s notice, Money would row with the judge, prosecution, clerk of the court or even the usher. However, he was well able to accept mockery.
After Money had made one particularly rousing closing speech, Neville Sarony, the co-defending counsel, began his own. “My father [Leslie], whom you may remember was on the music halls, used to say the seal act was the hardest to follow,” he said.

To his credit, Money flapped his gown and snorted: “Honk, honk.”

James Morton is a former criminal law solicitor and now author
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