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The Times

Friday, March 17 2017

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


  • Shiner bankruptcy to leave legal aid fund out of pocket
  • Financial fraud costs UK £2m a day
  • Barrister fined for confidential data leak
  • Supreme Court will ruling – the lawyer verdicts
  • Brexit countdown: What it will take to stay in Blighty
  • Comment: Overcoming male evolution in the law
  • Blue Bag diary: A mother of all barristers
  • More Blue Bag: Brought to heel
  • Law Report: Plumber a ‘worker’ under the terms of contract

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

Story of the Day

Shiner bankruptcy to leave legal aid fund out of pocket

Phil Shiner -- the solicitor struck off for dishonestly bringing claims against British soldiers who fought in the Iraq war -- has been declared bankrupt, it was confirmed yesterday.

The move will throw into doubt whether millions of pounds of public funds that were paid to Mr Shiner’s law firm in legal aid will ever be recovered.

After being struck off the roll of solicitors by a disciplinary tribunal at the beginning of last month, Mr Shiner (pictured) was told that the professional regulator was likely to go to court to recover the funds paid to his now defunct Birmingham law firm, Public Interest Lawyers.

Lawyers for the Solicitors Regulation Authority estimated that Mr Shiner had been paid £3.2 million from the legal aid fund. The lawyer was paid for pursuing claims against the British army for what he described as abuses that amounted to “the UK’s My Lai”. However, the claims were debunked during the Al Sweady inquiry into alleged atrocities in Iraq and Mr Shiner was exposed as having acted dishonestly.

Once a renowned human rights lawyer, Mr Shiner has been recorded as bankrupt by the Insolvency Service. In addition to leaving the legal aid fund out of pocket, Mr Shiner’s bankruptcy will also be felt by the solicitors’ profession.

The regulator confirmed that it incurred about £250,000 in costs in bringing proceedings against the lawyer. It is now unlikely that the professional watchdog – which is funded by practising solicitors – will be able to recoup those costs.

News Round Up
Financial fraud costs UK £2m a day

Britain lost £2 million every day last year because of financial fraud, official figures revealed as lawyers claimed that banks were cracking down on the epidemic.

Nearly £769 million was stolen by financial fraudsters in 2016 – a 2 per cent rise on the previous year, according to the data published yesterday from Financial Fraud Action UK.

The scale of the problem was revealed as a group of large banks and other financial services businesses launched a day of action to raise awareness of financial fraud. The “take five campaign” was designed to encourage the public to learn about the “simple steps they can take to protect themselves from financial fraudsters”, the organisation said.

Lawyers offered banks some support. “The industry appears to be making progress in tackling the problem when one compares the 26 per cent jump in such fraud the previous year,” said Ben Regnard-Weinrabe, a partner at the London office of Paul Hastings, the US law firm.

That lawyer said that research from the firm indicated that “while there continues to be strong growth in new payment methods, with more than 19 billion contactless transactions expected by 2026, consumers remain wary of the fraud risks”.

But he pointed out that risks remain with traditional payment methods, “and providers of new payment methods are often at the vanguard of developing or adopting novel ways of addressing fraud risks, such as the use of tokenisation, which helps drive both product and security innovation”.

Barrister fined for confidential data leak

A senior barrister who failed to keep clients’ sensitive personal information secure has been fined £1,000 by the Information Commissioner’s Office.

Information belonging to about 250 people – including vulnerable adults and children – was uploaded to the internet when the barrister’s husband updated software on the couple’s home computer.

About 725 unencrypted documents that were created and stored on the computer were temporarily uploaded to an internet directory as a back-up during the software upgrade. They were visible to an internet search engine and some of the documents could be easily accessed through a simple search.

Six of those files contained confidential and highly sensitive information relating to people who were involved in proceedings in the Court of Protection and the Family Court.

Steve Eckersley, head of enforcement at the commissioner’s office said: “People put their trust in lawyers to look after their data – that trust is hard won and easily lost. “This barrister, for no good reason, overlooked her responsibility to protect her clients’ confidential and highly sensitive information. It is hard to imagine the distress this could have caused to the people involved – even if the worst never happened, this barrister exposed her clients to unnecessary worry and upset.”

A spokesman for the office said that decisions to redact names of barristers from the monetary penalty notices was taken on a case by case basis “and in line with our policies and procedures and would include consideration of the impact on an individual”.

“The monetary penalty notice will be published on the ICO website with any confidential or commercially sensitive information redacted if requested,” said the spokesman.

The Bar Standards Board, the profession’s regulator in England and Wales, also declined to reveal the barrister’s identity.

Barrister dumps client files in bin bag

Meanwhile, the BSB fined another barrister £750 for a confidentiality breach after she dumped client papers in a bin bag.

According to a report on the Legal Futures website, Maria Masselis, a criminal law barrister at Linenhall Chambers in Chester, was found to have “improperly handled documents containing confidential and sensitive information about cases she was instructed and failed to take adequate or appropriate security measures against the disposal of such documents resulting in their discovery in the household refuse bin bags”.

Supreme Court will ruling – the lawyer verdicts

Some court rulings are like the dropping of the starting flag at the Grand National – the moment they are handed down a veritable stampede of lawyers rushes to comment. And the case of Heather Ilott and her mother’s will is a perfect example of the phenomenon.

The Supreme Court ruled that Ilott could not have a bigger slice of her mother’s estate because her mother had clearly indicated that most of the cash should go to three well known animal charities.

If there was any consensus, it was that the ruling provided much needed clarity around testamentary law in several key areas.

“Following the Court of Appeal decision some had asked whether there was any point in writing a will,” said Ben Kinnear at Hugh James, the law firm. “The position has now been clarified: the courts are now obliged to pay real attention to a person’s wishes whilst balancing that against the needs of any potential claimant and beneficiaries. However, the key point remains that each case will be judged on its own merits.”

Hard luck, kids

Scott Taylor Barlow Robbins, pointed out that the court had confirmed the freedom of individuals to dispose of their assets however they wish. It was important, he said, that the court “noted that although charities cannot demonstrate a personal need, they depend on testamentary giving for much of their work”.

While Emily Exton at Forsters focussed on the Supreme Court’s view of the responsibilities parents have to their children once they are adults, and how the needs of those children should be weighed against the interests of those whom the deceased has chosen to benefit. “The Supreme Court has confirmed that the freedom to leave your estate to whomever you choose remains a key principle of English law," she said.

That could be a harsh lesson for some children with high expectations, warned Paul Davidoff at Moon Beever. “We now know that, in England and Wales, we can still disinherit our adult children – even in favour of charities,” he said, “provided that they have enough to support themselves.

“If we intend to disinherit a child, we need to bear in mind their financial circumstances. From the child’s point of view, it does not matter if it was unfair or unreasonable to be excluded from inheriting. What is critical is whether, objectively, the child has enough to live off day to day. This can vary enormously – indeed, the child may have dependents of their own.”

Future disputes

But other lawyers still envisaged future disputes. The ruling, said Christopher Noel at Addleshaw Goddard, was a reminder “of the difficulties in balancing competing claims to an estate, and the value judgment likely to be necessary in each case”.

And one lawyer could not resist the temptation to make a joke. “Overturning the judgment in the Court of Appeal,” said Richard Kershaw at Hunters Solicitors, “the Supreme Court has proven not only that charities litigating out of principle and precedent outweigh an undeniable personal need, but have also instilled that charity should not necessarily begin at home.”

Brexit countdown – legal update as leave approaches

What it will take to stay in Blighty

A French citizen who is a long-term resident in England and teaches at a school in the southeast recently expressed profound worry over her right to remain in the UK after the country leaves the EU – despite having a British husband and a child born in Hampshire.

Her concerns, writes Edward Fennell, would have resonated with many in the House of Lords as they attempted to “tie Theresa May's arm behind her back” in the Brexit negotiations over the status of EU citizens resident in the UK. Many peers would take the view that it is deplorable that people who have made a long-term commitment to live in Britain should be left so unclear about their position.

Enter Elspeth Guild and Jessica Jim, lawyers at Kingsley Napley, the London law firm, who have some words of encouragement. Their view is that “for EU nationals who have lived in the UK for substantial periods but have not acquired permanent residence before Brexit, a claim to remain in the UK could be made on the basis of long residence under current UK immigration law”.

There is currently a ten-year residence route, which enables those who have lived in the UK lawfully for that period to apply for indefinite leave to remain in the UK – a status that is not expected to be affected by Brexit.

There’s always a catch

But, unsurprisingly, there are catches. For example, the permitted absence period from the UK during those ten years is no more than 540 days – and a schedule of absences must be provided to the Home Office.

In addition, point out the Kingsley Napley lawyers, “significant documentation will need to be provided to demonstrate the EU national has been living in the UK for the period in accordance with EU law”. That means they were exercising treaty rights as a worker or self-employed person. Alternatively, they may be a student or self-sufficient person, in which case they would need to show they have sufficient resources and should hold comprehensive medical insurance cover in the UK for that period.

Of course, there will many non-British citizens but long-term UK residents who have neither been economically active nor studying. For them, point out the Kingsley Napley lawyers, the alternative is via the 20-year residence rule.

“This may be applicable to those who cannot show they were continuously economically active in the UK for this period. However, it should be noted it grants only discretionary leave to remain for ten years.” The EU national would need to wait a further ten years before applying for indefinite leave to remain.

Human rights law to the rescue

There are also some useful rules covering younger people and those who have no meaningful links with the country to which they might be returned. But, as ever, they could be quite complicated to argue.

If all else fails, there is also the possibility of long-term residents appealing under European human rights law in so far as they have a human right to continue to enjoy a private life here.

“However,” warn the lawyers, “if after Brexit the UK government decides to withdraw from the European Convention on Human Rights, this claim may fall away.”

In Brief

CMS Cameron McKenna and Pinsents to share £1m legal fees for KWM collapse – Legal Week

'Panic' over legal aid contract deadline – Law Gazette

Washington DC firm partner convicted of insider trading – The American Lawyer


Overcoming male evolution in the law Jonathan Ames

As the enthusiasm around International Women’s Day begins to fade, lawyers and their clients need to focus on the hard and real issues around gender equality.

For as painful as this may be to hear, there seems to be an awful lot of talking and marching about workplace diversity and equality, but precious few tangible results.

If anything, the situation in parts of the legal profession is deteriorating. Figures produced at a conference in London yesterday demonstrated a stark fact: while the number of women partners at law firms has increased overall in the decade up to 2015, the proportion of all women in private practice who are partners has slumped significantly. In 1995 it was more than 30 per cent; ten years later, it had shrunk to 22 per cent.

That reduction can be explained partially by the fact that significantly more women than men are qualifying as solicitors – combined with the fact that in general, the prospects of partnership for both genders has declined as law firms retrenched after the financial crisis of 2008.

But the conference at the offices of Simmons & Simmons, the international law firm, heard a number of worrying statistics. According to the Law Society, the body that represents solicitors, women make up just shy of 29 per cent of the partners at all law firms in England and Wales.

Not so bad, but the higher up the law firm tree one looks, the bleaker the picture. According to the UK200 list from The Lawyer magazine, women take less than a quarter of the partnership places at the top 100 law firms. And PwC’s 2016 law firm survey showed that figure dropping to about 18 per cent for the top 25 law firms.

Are all the good intentions, the meetings at which “agenda items” are earnestly discussed to work out how to “move the needle” in favour of greater partnership diversity failing? Are countless sessions on “unconscious bias training”, “cultural management approaches” and “practical enabler and tool initiatives” making no impact?

Not entirely, although there is always a danger that positive ideas and sound intentions can be drowned in a tsunami of management jargon. Repeatedly raising and discussing the issues, as was done yesterday morning, is at the very least a morale booster for young women in the profession.

But part of the problem is that if yesterday’s meeting was anything to go by, the debate is being conducted among women with little attention paid by men. The reality is that the legal profession has spent several hundred years evolving as a man’s world. And City of London and international practice has been geared around a macho, almost bullying culture that makes little if any concession to flexible working and other diversity issues.

Lord Sumption took a lot of heat when he predicted that gender parity at the senior level of the judiciary was 50 years away. Forcing some men to listen and to act on restructuring law firm processes will help. But ultimately evolution takes time.

  • See Blue Bag below -- Brought to heel

Jonathan Ames is co-editor of The Brief

Tweet of the Day

I have passed through Barnet in the dusk. Truly the days of spring are upon us.

Nearly Legal @nearlylegal

Blue Bag

A mother of all barristers

Carol Davis, a 20-year-call senior-junior at Littleton chambers in the Temple, gave a perfect demonstration earlier this week of the no-nonsense approach with which one assumes all barristers raise their children.

Speaking at a debate in favour of the motion “We must limit strike rights, not chief executive pay”, the employment law specialist regaled the audience with some harsh facts of life.

“If George Clooney has a penchant for barristers, I’d have liked him to have picked me,” she said. “But as I am constantly having to tell my children, life is not fair.”
The barrister went on to provide a barnstorming pitch in favour of the motion, arguing that transport strikes were crippling London, but that “like it or not, chief executives are enormously important to their companies’ shareholders and you get what you pay for”.

Still, the audience at Thomson Reuters in Canary Wharf remained relatively unimpressed by Davis’s advocacy; the motion was defeated by a margin of 58 per cent to 35 per cent, while the remainder were so in awe that they could not decide.

Solicitor turned app-rentice

Another life lesson: former contestants on BBC Two’s The Apprentice do not simply fade away gracefully; they keep popping up with alarming regularity.

And for once we are not talking about Katie Hopkins, the inimitable Daily Mail columnist, who is gearing up to appeal the recent Twitter libel ruling in which she finished second. No, dashing back into the spotlight on this occasion is Lauren Riley, the solicitor-turned-entrepreneur who for the last couple of years has been trying to flog the Link App.

Riley, formerly an associate at Labrums, the St Albans law firm, was sacked during week seven of series ten of the programme in 2014. She promotes her invention as a “cutting edge” piece of kit that will “improve communication between lawyers and their clients, helping them improve their efficiency and increase productivity, setting law firms apart in this regard from their competitors”.

Earlier this week, she announced that her gadget had been chosen by Eclipse Proclaim Legal Systems to become its official app partner. There was no comment from Lord Sugar.

Brought to heel

Issues around women’s footwear refuse to go away. At a conference on gender diversity in the legal profession yesterday at the City of London offices of the law firm Simmons & Simmons, a young lawyer rose to address the audience.

Well actually, Suzanne Szczetnikowicz, an associate at the London office of Millbank, the US law firm, and the chairwoman of Women in Law London, thought about rising to address the audience before saying: “I can’t stand in heels for 20 minutes, so I’m going to remain seated.”

Perhaps the organisers should have laid on a range of all-purpose flats for the speakers. Mind you, these were the same organisers who billed the conference as coming “hot on the heels of International Women’s Day”.

The Law Reports

Plumber a ‘worker’ under the terms of contract

Pimlico Plumbers and Another v Smith — Court of Appeal, published March 9, 2017

Before Sir Terence Etherton, Master of the Rolls, Lord Justice Davis and Lord Justice Underhill [2017] EWCA Civ 51; Judgment February 10, 2017

A plumber who was contracted to a plumbing firm under a business model whereby operatives were intended to appear to clients as working for the business, but where the business sought to maintain that, as between itself and the operatives, there was a legal relationship of client or customer and independent contractor, was a “worker” under employment legislation.

Quote of the Day

"Feminism is … about freedom, it's about liberation, it's about equality. I really don't know what my tits have to do with it."