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P LUS: ROZENBERG • PRIVILEGE • BAR STRIKE? • TECHNOLOGY • DIVORCE • CRYPTOASSETS • JOBS

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News editor
Get happy Time to break out?
F d up off b
Fed billi
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PLU S: ROZENBERG • PRIVILEGE • BAR STRIKE? • TECHNOLOGY • DIVORCE • CRYPTOASSETS • JOBS

Michael Cross 020 7841 5546

Features editor Is a quiet revolution in legal services passing under the radar? I do not
Eduardo Reyes 020 7841 5550
EDITORIAL allude to those entrepreneurs who want to parade their wares on a
Deputy news editor
Editor-in-chief
John Hyde 020 7841 5571
stock exchange. Nor to the law firms who have sought to turbocharge NEWS
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Reporters growth by widening their ownership base or soliciting private 4 Up Front
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editor investors. As for ‘Tesco law’, described by justice secretary Ken Clarke 5 A Week in 60 seconds
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Michael Cross 020 8049
Digital publishing 3976
manager over a decade ago as the legal profession’s very own ‘Big Bang’, well – 6 In Focus
Features editor
Kirsty Wright 020 7316 5522 it didn’t quite turn out that way. More of a muffled bump. Unrepresented claimants are
Web content
Eduardo Reyeseditor
020 8049 3813
Zoe White 020 7841 5597 No. Something prosaic – but perhaps genuinely epochal – not using the whiplash portal.
Deputy
Sub-editors editor
news seems to be happening. Tired of office politics, hierarchies, glass So what now?
Nick Goodman,
John Hyde 020Ryan
8049Southwell
3905
Contributing writer
ceilings, presenteeism and billing targets, solicitors are turning 7 In Focus
Reporters themselves into self-employed consultants by the hundred (see Criminal barristers are poised
Jonathan Rayner
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feature, p16). ‘Employed lawyers spend half their time living in for direct action over pay. But
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LAW SOCIETY GAZETTE 21 JANUARY 2022 3

U P FRONT
Dominic Raab: important
measure to drive down
backlog of cases
New magistrate powers ‘inappropriate’
Monidipa Fouzder
Plans to give magistrates powers
to lock up people for longer to
help reduce the Crown court
backlog came under fi re this
week, with one professional
body warning that the measure
could have the opposite effect.
Lord chancellor Dominic Raab
told parliament that he will
double the maximum prison
sentence – currently six months
– that magistrates can hand
down, via a commencement
order. Magistrates will also
increasingly be allowed to
sentence serious cases such
as fraud, theft and assault.
Currently, any crime that
warrants a prison sentence of
more than six months must be
sent to the Crown court.
Raab said: ‘Th is important
measure provides additional
capacity to drive down the
backlog of cases in the Crown
CPS accused of doctoring evidence pages in pay row
Monidipa Fouzder
The Crown Prosecution Service
has rebutted a claim made by
the chair of the government-
commissioned legal aid review
this week that the prosecuting
body deliberately keeps pages of
evidence down by shrinking the
font – which would affect how
much legal aid practitioners are
paid.
Pages of prosecution evidence
are one of multiple factors
under the litigators graduated
4 LAW SOCIETY GAZETTE
courts over the coming years.’
Bev Higgs, national chair of
the Magistrates’ Association,
was ‘delighted’. ‘It is absolutely
the right time to realign
where cases are heard to
ensure a safe, effective, and
efficient justice system and
this demonstrates great
confidence in the magistracy,’
she said. Magistrates had been
integral to keeping the justice
system functioning during the
pandemic and enabling them
to hear more serious offences
meant they can contribute to
easing pressure on the Crown
courts, she said.
However the Law Society
opposes the change. President
I. Stephanie Boyce said: ‘The
current ability of magistrates
to commit cases to the Crown
court when their powers are
felt to be inadequate enables
cases to be sentenced in the
fee scheme (LGFS) that
determine solicitors’ fees.
Sir Christopher Bellamy
QC, who led the independent
criminal legal aid review,
appeared before the Commons
justice select committee on
Tuesday, where he was asked
about fee scheme reforms.
Bellamy told the committee
that LGFS had ‘grown into a
monster, where page count
has become divorced from
actual work’. He suggested the
appropriate forum.’
Meanwhile, Criminal Bar
Association vice-chair Kirsty
Brimelow QC warned that
the measure could increase
the Crown court backlog, as
defendants facing a prison
sentence are more likely to take
their chances with a jury.
The Ministry of Justice
says increasing magistrates’
sentencing powers will free up
2,000 court days annually. Latest
figures show the Crown court
backlog continuing to slowly
come down from the record high
of 60,994 in June 2021. There
were 58,728 outstanding cases
last November.
Labour, which has previously
advocated cutting jury sizes to
reduce the backlog, described
the latest measure as ‘another
sticking plaster to deal with a
backlog crisis [the government]
created’.
basic model underpinning the
magistrates’ court scheme –
which has three levels of fees
depending on the complexity of
the case – could be used at the
police station and replace LGFS.
Bellamy said: ‘Solicitors
should therefore be paid for
the preparation work they do
properly and we should get away
from this somewhat medieval
practice of counting the pages
insofar as they are pages. Senior
officials at the CPS were telling
21 JANUARY 2022
U P F RONT
CBA strike
ballot threat
Monidipa Fouzder
The Criminal Bar Association
said this week it will ballot on
strike action if the government
fails to commit by Valentine’s
Day to substantially increasing
legal aid funding.
Nearly 2,000 criminal
barristers completed the CBA’s
survey on the government’s
timetable for implementing Sir
Christopher Bellamy’s central
recommendations in the
independent criminal legal aid
review (see In Focus, p7).
The results were announced
on Tuesday: 94% said criminal
barristers should take action
to include, as a minimum,
no returns if the government
fails to give an undertaking
by 14 February to publish its
full response to the review,
including a timetable for
implementation, and complete
the statutory consultation by no
later than the end of March.
CBA chair Jo Sidhu QC said
solidarity at the criminal bar
had never been stronger and
‘there is no going back’.
After the results were
announced, lord chancellor
Dominic Raab told the BBC: ‘The
one thing that would hold back
recovery in the court system is if
the CBA and criminal lawyers go
on strike. I don’t think that would
be supported across the wider
sectors of the justice system and I
certainly don’t think that will be
supported by the public.’
me the other day they actually
deliberately shrink the font of
the pages served in order to
reduce the page count.’
Criminal practitioners reacted
angrily. ‘What we have long
suspected, and this is the tip
of the iceberg,’ former London
Criminal Courts Solicitors’
Association president Mark
Troman said on Twitter.
A CPS spokesperson said:
‘We are not responsible for the
formatting of these pages.’

A week in 60 seconds
14 January
Christine Lee, named in an
‘interference alert’ from MI5
as an alleged Chinese agent
said to ‘be involved in political
interference activities in the
UK’, is a solicitor, it emerged.
She is the director of Christine
Lee & Co Solicitors (pictured)
of Birmingham and London’s
Soho. ‘We are aware of the issue
and are gathering relevant
information,’ the Solicitors
Regulation Authority said.
Less exotically, top-50 firm
Weightmans announced it is
in talks to merge with national
firm RadcliffesLeBrasseur.
The firms aim to complete
the deal by the end of March
creating a business with 225
partners and a total headcount
of 1,400.
Liability for secondary
victims in clinical
negligence claims
is likely to be
considered by the
Supreme Court, after
the Court of Appeal
ruled that ‘no claim
can be brought in respect of
psychiatric injury caused by a
separate horrific event removed
in time from the original
negligence’ (Paul v The Royal
Wolverhampton NHS Trust).
17 January
The government ploughed
another £1.2m into a voucher
scheme to keep more family
disputes away from court – a
priority of the lord chancellor.
The family mediation voucher
scheme was introduced last
March with £1m of initial
funding (see Practice Points,
p28).
No claim can be brought in respect of psychiatric injury
caused by a separate horrific event removed in time from
the original negligence
Supreme Court, Paul v The Royal Wolverhampton NHS
Trust
With fees for registers and
transfers of title rising by up to
21% on 31 January, HM Land
Registry warned conveyancers
to prepare for further likely
increases. In a blog, chief
financial officer Iain Banfield
(pictured, below) said the
agency is ‘exploring further
changes to the fee order,
including its structure and
simplicity’.
18 January
‘Westernisation’ can provide
a basis for a claim for leave
to remain in the UK where
individuals face a real risk of
persecution if they would not
be able to adhere to the norms
of conservative societies, a
tribunal found. A ‘westernised’
family of five who fled Iraq
in 2006 won an appeal
against the refusal of
leave on the grounds
that they would face ‘a
real risk of persecution
because they are
atheists’.
A public authority does
not generally owe a duty of
care ‘where it has intervened
but has done so ineffectually’
in a way which fails to confer
a benefit rather than ‘making
matters worse’, the Court of
Appeal ruled in Tindall and
another v Chief Constable
of Thames Valley Police and
another. Valerie Tindall sued
Thames Valley Police over the
death of her husband in a road
accident, when a car driven
in the opposite direction
lost control on black ice and
collided head-on with his
car. Police officers attended
another accident on the same
LAW SOCIETY GAZETTE
stretch of road an hour earlier
and put up a ‘police slow’ sign,
but left the scene 20 minutes
before the fatal accident.
19 January
The Council for Licensed
Conveyancers is considering
making it mandatory for
the firms it regulates to take
out standalone insurance to
cover cyber-attacks. Some
professional indemnity
insurers already require their
firms to take out separate cyber
insurance to cover such costs,
but the CLC has hitherto
been content to let the
market resolve the
issue.
Legislation to
bring the promotion
of cryptoassets
under the wing of
the Financial Conduct
Authority (FCA) will be
introduced when parliamentary
time allows, HM Treasury
announced. Around 2.3 million
people in the UK are thought to
own a cryptoasset such as digital
coinage or non-fungible tokens
(NFTs). However the Treasury
said that understanding of
the technology is declining,
‘suggesting that some users may
not fully understand what they
are buying’ (see Practice Points,
p32).
21 JANUARY 2022
INS IGH TNE WS
The hangover from the height
of the lockdown continues
to affect income from the
personal injury sector. Listed
firm NAHL Group, which runs
National Accident Law as
well as generating enquiries
for other firms, told investors
in a pre-close trading update
that full-year revenue for 2021
is expected to be 5% down at
£38.9m and underlying profit
30% lower at £4m.
20 January
Corporate adviser and
stockbroker Arden
Partners confirmed
that its shareholders
have voted
overwhelmingly to be
acquired by listed law
firm The Ince Group.
The parties agreed
a £10m deal in October
following the offer by Ince to
buy the entire share capital of
Arden.
Following a meeting of Arden
shareholders on Wednesday,
31 of the 32 in attendance
voted in favour of the takeover
– representing 99.9% of the
ownership.
To read all these stories
and more in full, see
lawgazette.co.uk/news
5
I N FOCUS

Insult to injury
The Official Injury Claim portal was supposed to remove the need for
lawyers, but with 90% of claims coming from people who instruct a
solicitor it is clear that things are not going according to plan

John Hyde without specialist advice – in

An email to users
of the Official
Injury Claim
(OIC) portal has
warned of a bug in the system.
It happens when compensators
(usually insurers) enter ‘£0’
instead of ‘£0.00’ during the
‘create an offer’ phase for
items which have a zero value.
Without inputting the correctly
formatted zero, the claim cannot
be processed.
A fix for this bug is expected to
go live on or before 14 February.
A small consolation for anyone
who doesn’t get a Valentine’s
card, perhaps.
However the zero-value bug
may be the least of OIC’s worries.
Eight months into its existence,
we can confidently say that the
government-led online system
for handling whiplash claims
valued at less than £5,000 is not
working as planned.
Most people would rather someone with the
independence and expertise do the claim, and if they
have to pay some of their damages then that’s a price
worth paying
Stuart Hanley, Minster Law
The system was billed as
being constructed around
the litigant in person. As the
service itself tweeted last week,
it is designed so that anyone
injured in a car accident can
claim ‘without specialist
knowledge’. It is supposed to be
a straightforward online process
which does not require a lawyer
where people can get swift
access to justice, backed up by a
call centre open six days a week
to answer queries.
But early indications are
that unrepresented people
are unlikely to use the service
both reporting periods since the
launch, 90% of claims have come
from people who instructed a
solicitor.
Minutes from last month’s
OIC advisory group meeting,
chaired by the Ministry
of Justice and attended by
solicitor, insurer and medical
agency representatives, were
published last week and
revealed that research has
been commissioned into
unrepresented claimants exiting
the service.
Stakeholders also want
to establish whether
unrepresented claimants may
be receiving additional advice
‘in the background’ and if this
might be having an impact on
settlement figures.
Donna Scully, who works
with claimants and insurers as
director of the Liverpool-based
Carpenters Group, said the
enquiry was superfluous as most
inside the industry already know
why there are so few litigants in
person.
‘People cannot run their own
RTA cases because they are
too complicated,’ said Scully.
‘They didn’t do their own PPI
cases and they were easy. They
want to be represented and LEI
insurance helps with that.’
Certainly, the increasing
take-up of legal expenses
insurance has been a key factor
in claimants opting not to
run their own claims, which
may have blindsided policy-
makers at the MoJ. As Stuart
Hanley, head of legal practice at
claimant specialist Minster Law,
said, ‘why have a dog and bark
yourself?’
He explained that the low take-
up of unrepresented people is a
combination of a lack of public
knowledge about the portal and
the continued assumption that
these matters are best left to a
lawyer.
‘There was so little publicity
last May you would be forgiven
as a consumer for not knowing
the portal was there,’ said
Hanley. ‘Most people would
rather someone with the
independence and expertise do
the claim, and if they have to
pay some of their damages then
that’s a price worth paying.’
He praised the Motor Insurers
Bureau, which designed and
administers the scheme on
behalf of the MoJ, for responding
quickly to issues raised and
collaborating with users. But
he also suggested that if 90% of
claimants continue to be those
with a solicitor, the system may
need readjusting to better meet
the needs of that majority.
Whether the portal itself is
user-friendly is questionable.
Those going it alone may require
police reports and witness
statements – not to say enough
confidence with computers
to go through the automated
process. Users will also need
to understand if their claim is
worth less than £5,000. Whether
they trust insurers to make fair
offers is another element that
may deter them from running a
claim themselves.
The Guide to Making a Claim
runs to 64 pages, and it is
hardly beyond the imagination
of an advisory board to think
consumers will take one look
and seek out a solicitor – or
alternatively drop their claim.
It is noticeable that while the
OIC quarterly statistics give
numbers of unrepresented
people, it does not specify how
many also dropped out along
the way.
‘If the policy intention was to
reduce the number of whiplash
claims then the portal has
been an absolute triumph,’
said Matthew Maxwell Scott,
executive director of the
Association of Consumer
Support Organisations. ‘It is
extraordinary the 90% figure
has come as any surprise. Those
who saw it early on in the design
process thought this looked too
complicated.’
Something, everyone agrees,
needs to change. The current
system revolves around an
assumption that does not seem
to have been borne out.

6 LAW SOCIETY GAZETTE 21 JANUARY 2022


Monidipa
Fouzder
The message
from the
criminal bar
to the government is clear:
move to implement the
recommendations of the
Criminal Legal Aid Review that
you commissioned or we are
ready to strike.
Nearly everyone who
responded to a survey by the
Criminal Bar Association on the
government’s timetable favours
direct action. The poll closed on
Monday.
Lord chancellor Dominic
Raab has promised to publish
the government’s response
to the review, alongside a
consultation on proposals, by
the end of March. However, by
the time the consultation ends
and the necessary preparatory
work is done to implement any
recommendations , the legal
aid community may not see
reforms until autumn at the
earliest.
This could be too late for
solicitors. Sir Christopher
Bellamy QC, chair of the
independent Criminal Legal
Aid Review, told the Commons
justice select committee on
Tuesday: ‘We have a situation
where fees have remained
unchanged for 14 years [since
2008] except to go down by
8.75%. Some fees have had no
increase for over 30 years. The
number of firms is in decline.
It is very difficult to recruit new
blood. The private profession
has fallen behind the Crown
Prosecution Service in terms of
the salaries it can offer and has
therefore been losing a great
deal of talent.
‘In all those circumstances,
there must be a serious question
mark as to how long the private
provision of solicitors’ services
can feasibly continue.’
Law Society president I.
Stephanie Boyce said Chancery
Lane shares the bar’s view that
the Ministry of Justice needs
to respond quickly ‘and get the
recommended investment to
our members as soon as they
can’.
Daniel Bonich, chair of
the Criminal Law Solicitors
IN FOC U S
The Crown court backlog,
which reached a record high
last June, has fallen slowly since.
Direct action would reverse that
trend – something Raab will be
keen to avoid.
Bonich says the criminal
justice system cannot operate
without the goodwill of solicitors
and barristers, who routinely go
the extra mile for free to keep
the wheels of justice turning.
He said: ‘We believe that in the
event of action by barristers
and advocates, courts across
the land will grind to a halt and
the hard work of undoing the
backlog will be destroyed. It
will be solicitors who are at the
frontlines and clients, witnesses
and victims who will see their
cases delayed and who will bear
the brunt of such action.
‘We cannot have a repeat of the
attitude taken by some courts
previously of forcing solicitors
and their staff to attend court
to conduct hearings for which
they have neither the capacity
or desire to conduct, and our
The workers, united? members will not tolerate a
repeat of some of the attempts
by courts and regulators
The criminal bar will not wait any longer for the lord chancellor (well-meaning or not) seen
to pump more money into legal aid. Solicitors are uniting behind previously that placed entirely
barrister colleagues, but Dominic Raab appears in no mood to budge unreasonable burdens on busy
and hardworking and underpaid
Association, said: ‘Our members it has been in talks with the CBA, solicitors.’
share the bar’s frustration at the and asserting that ‘both sides CBA chair Jo Sidhu QC said
pace being set for these urgent of the profession are united in there will inevitably be some
changes, and understand their their aims’. The LCCSA wants impact on both criminal
desire to take action. Many ‘an immediate initial increase barristers’ and solicitors’
higher-court advocates will wish of 15% to all current fee schemes incomes should direct action be
to join their action and firms applied to the 2008 rate of pay’. necessary, ‘but we are resolute
with HCAs will have a common The CBA is giving Raab until in our belief that taking tough,
interest with the bar in resolving 14 February to commit to unified decisions today will
the issues they face.’ He added substantially increasing legal secure a stronger future for
that, where clients had chosen to aid funding. Will he relent? tomorrow’s vibrant independent
be represented by a barrister, ‘it Raab told BBC Radio 4’s Today criminal barrister and solicitor
would not be right to substitute programme that he did not professions’.
in an HCA where no barrister is think strike action would be Raab cannot afford to lose any
available due to any action’. supported across the justice more criminal practitioners. As
The London Criminal Courts system, ‘and I certainly don’t Bellamy warned MPs: ‘Although
Solicitors’ Association weighed think that will be supported by I don’t think at the moment we
in on Wednesday, revealing that the public’. have a situation where we have
a serious constitutional issue,
we’re not far off it if something is
not done. I have seen this review
as not just about legal aid. It’s
Taking tough, unified decisions today will secure a about the basic principle of a fair
stronger future for tomorrow’s vibrant independent trial. It’s about the basic health
criminal barrister and solicitor professions of a justice system. No civilised
country can maintain a civilised
Jo Sidhu QC, Criminal Bar Association society without a functioning
and fair justice system.’
LAW SOCIETY GAZETTE 21 JANUARY 2022 7
I N FO C U S
Global bar
rallies to
defence of
legal privilege
The International Bar Association
fears lawyer-client confidentiality
is being compromised as
supranational agencies intensify
efforts to tackle corruption,
terrorism and climate change
Michael Cross
It is part of a
lawyer’s lot
to represent
unpopular
clients or causes, but it is
nonetheless bold of the legal
profession to appear to criticise
international efforts to curb
corruption and fi nancial crime.
That will be among the charges
levied against the International
Bar Association following
its publication this week of a
strong statement in defence of
lawyer-client confidentiality.
The IBA, which represents
190 bar associations and law
societies from 170 countries,
published the statement amid
concerns that confidentiality, or
professional privilege is under
attack. The main charge is that
it ‘is given insufficient weight’
in comments from ‘various
supranational agencies’.
These include a UN panel on
‘accountability, transparency
and integrity’, the OECD’s
Global Anti-Corruption &
Integrity Forum and the
Financial Action Task Force.
‘These entities, previously
supportive of the rule of law,
have become increasingly
frustrated at the apparent
barriers that the rule of law
poses to strong executive
political action to solve
8 LAW SOCIETY GAZETTE
various global crises, such as
climate change, terrorism and
corruption.’
This is a deeply worrying trend.
In a foreword to the statement,
Lord Neuberger, the former
Supreme Court president, writes
that client confidentiality is a
key aspect of the rule of law.
He notes that legal privilege
‘can cause inconvenience or
even apparent unfairness in
a particular case’ – but that ‘it
is not right for governments
to start deciding on the extent
We have heard too many stories of [privilege] being
abused to conceal vital information from law enforcement,
and concerns that the boundaries of it are poorly
understood in the legal profession and poorly regulated
Susan Hawley, Spotlight on Corruption
or nature of the privilege to be
enjoyed in any particular case.’
Overall, ‘the general benefit
of the principle of lawyer-
client confidentiality far, far,
outweighs any occasional
disadvantage to which it gives
rise.’
Of course the IBA statement
stresses that there are
legitimate reasons to override
privilege – the obvious one
Some abuses of confidentiality
may be unintentional, such
as a junior lawyer making a
mistake when analysing emails
being unlawful conduct by a
lawyer – but such exceptions
must be kept to a minimum and
applied only in extreme cases.
The statement goes on to
set out in principle how such
a balance may be struck.
Confidentiality should be
disapplied ‘in appropriate,
but narrow circumstances’.
It also suggests that some
abuses of confidentiality may
be unintentional; giving the
example of a junior lawyer
‘tasked with analysing
potentially thousands of emails’
and making a mistake. In such
cases ‘criminal prosecution is
unlikely to be appropriate’.
Another aspect of balance is
that, where state authorities
wrongly override confidentiality,
for example by seizing papers,
legal sanctions should apply. At
present, even in countries where
privilege is protected by law,
the penalties for breaches ‘are
21 JANUARY 2022
so insubstantial that there is no
incentive for the investigation
authorities to discontinue such
practices’.
The IBA calls on regulators
and representative bodies to
‘devote enhanced attention
to the responsibilities and
rules associated with lawyers’
obligations under lawyer-client
confidentiality, expand training
regimes for newly admitted
lawyers and provide refresher
training for existing lawyers’. For
their part enforcement agencies
and governments ‘need to
recognise that civil society has
multiple important issues that
need to be balanced’.
It hopes that law enforcement
agencies will engage in a
dialogue with the IBA.
The Law Society congratulated
the IBA on its stance. Head of
international Mickaël Laurans
said: ‘In recent years, a number
of international organisations
as well as national governments
have sought to attack or weaken
this principle. That is why a
response from the international
legal community is required.
Lawyer-client confidentiality is a
cornerstone of access to justice,
the administration of justice,
and the rule of law in a fair and
democratic society.’
Laurans noted another public
policy benefit: ‘It is the job of
lawyers to give advice that
allows their clients to make
informed decisions. Without
this, many more decisions
would be made in ignorance of
the law, and the courts would
be overwhelmed with cases that
have no prospect of success.’
It remains to be seen whether
this will impress what seems to
be a growing chorus of concern
about the role of lawyers in
dubious transactions. Susan
Hawley of campaign group
Spotlight on Corruption noted:
‘We have heard too many stories
of [privilege] being abused to
conceal vital information from
law enforcement, and concerns
that the boundaries of it are
poorly understood in the legal
profession and poorly regulated.
‘If the IBA defence is to have
credibility, it needs to lay out
how these potential abuses can
be prevented.’

Negligence claim fails over
‘warehouse’ of proceedings
Claimant in negligence case doing ‘little more than the minimum
necessary’ to keep the claim alive, says His Honour Judge Pearce
John Hyde
A negligence claim against a
London firm dating back five
years has been thrown out
after the judge invoked the
principle of ‘warehousing’ to
end proceedings.
In Alfozan v Quastel Midgen
LLP, His Honour Judge Pearce
ruled that he was satisfied the
claimant had been stringing
out the claim, doing ‘little more
than the minimum necessary’
to keep it alive.
His ruling referenced Lord
Woolf’s judgment in Arbuthnot
Latham v Trafalgar, stating that
parties seeking to ‘warehouse’
proceedings until it was
convenient to pursue them
was an abuse of process. Woolf
had said this practice led to
‘stale proceedings which bring
the litigation process into
disrespect’.
In Alfozan, Pearce said: ‘I am
satisfied that the claimant has
been guilty of warehousing this
claim in that, for a prolonged
period from the issue of the
claim, the claimant has held no
genuine intention to progress it.
‘It is appropriate to strike the
claim out given that the case is
still not formulated in a proper
way to proceed and that the
history of the litigation would
suggest that imposition of lesser
orders is unlikely to cause
the claimant to conduct the
litigation properly.’
Commercial firm Quastel
Midgen had applied for a
strike-out after a related claim
against another defendant met
the same fate. The claimant
in Alfozan, a businessman
The claimant has not taken the opportunity to
explain why the claim has been progressed in such
a dilatory fashion
His Honour Judge Pearce
living in Saudi Arabia, alleged
negligence and/or breach of
trust in facilitating a fraud
relating to hundreds of property
transactions. The judge noted
the claim was ‘hotly contested’
on the merits, as well as being
rejected as an abuse of process.
The claimant submitted that
he that intended to continue
the litigation, as demonstrated
by his resisting the application,
paying money into court as
security for costs and requesting
a costs and case management
conference. However, the firm
identified 21 breaches of the pre-
action protocol for professional
negligence claims and said
there was no explanation for
numerous delays since the
possibility of litigation was first
raised in 2017.
The judge noted that the claim
was issued close to the expiry of
the limitation period, there was
no pre-action correspondence,
and amended particulars of
claim were not supplied until
about 17 months after the
need for them was conceded.
There was a picture of ‘almost
complete inactivity’ beyond the
basics of issuing and serving the
claim, the judge said, and even
the security of costs ‘in reality
had the effect of simply keeping
alive a case that might otherwise
have been liable to be stayed’.
The judge added: ‘The
claimant has not taken the
opportunity to explain why the
claim has been progressed in
such a dilatory fashion and,
without some explanation, the
natural inference is that there is
no good explanation at all.’
LAW SOCIETY GAZETTE
IN FOC U S
Laura O’Brien, Hodge Jones & Allen
Who? Laura O’Brien, senior associate, Hodge Jones & Allen, London.
Why is she in the news? Represented Jake Skuse and Rhian Graham,
two of the Colston Four protesters who were acquitted of criminal
damage charges in relation to the Edward Colston statue which was
toppled during a Black Lives Matter protest in Bristol in June 2020.
Thoughts on the case: ‘It was not possible to ask the jury to judge
our client’s actions without understanding the significance of the
statue of Edward Colston. The case took us to the history of slavery,
the economic interests fuelling the cult of Colston in Bristol and
the politics that prevented this offensive statue from even being
contextualised. The statue was erected after Colston’s death and the
abolition of slavery, yet celebrates him as a “most wise and virtuous
son of Bristol” without mentioning his significant role in the slave
trade or that his wealth was derived from this. This case does not,
as so many have suggested, set a legal or moral precedent, but will
have a positive legacy for our clients, for Bristol and for the broader
understanding of our past.’
Dealing with the media: ‘There has been extensive discussion
about the role of juries; this can only be a positive thing. The
challenge is accuracy. I totally understand why many members of
the public may think that a decision of a jury could create a legal
precedent. But politicians should know better. The attorney general
has stated that she is considering a referral to the Court of Appeal
as the verdict has created confusion. She has the power to seek the
opinion of the Court of Appeal on any point of law arising in a case
on acquittal, but we need to be clear that is not the verdict that the
court will be commenting on. This raises the question: had the jury
convicted following the same evidence and the same legal directions,
would the attorney general be engaging in such a knee-jerk reaction?’
Career high: ‘My first jury trial. My client, a nurse, thanks to the
incompetence of the local authority, was overpaid benefits and
prosecuted for fraud. Reading the interview transcripts, I was
shocked by the difference in the way she was spoken to in her first
interview, unrepresented, and her second interview with a lawyer.
The jury very quickly acquitted her.’
Career low: ‘My client was 13 when I started representing him. I had
this thought that if he could get to 18 without being sent to youth
detention, his offending would prove to be a phase. At 15, after
pleading guilty to several offences, he was sent to youth detention.
I sat in a room with his youth offending worker and we both quietly
cried.’
21 JANUARY 2022 9
 OBITER
Law Society Gazette, 26 January 2012
Jackson wary of setting limits
Lord Justice Jackson has urged caution
over setting limits on the percentage of
damages that lawyers will be able to take in
commercial cases under his reforms to civil
litigation.
17 January 2002
Woolf rails against lack of mediation
Lord Woolf has made an impassioned
plea for lawyers to mediate more and
litigate less, and indicated that the remit
of mediation in public law cases should
be widened. Giving judgment in Cowl
v Plymouth City Council, the lord chief
justice said: Insufficient attention is paid
to the paramount importance of avoiding
litigation wherever possible.’
21 January 1992
Society rejects ‘derisory’ 3%
The lord chancellor’s improved offer of
3% for legal aid has been dismissed by
Law Society officials as ‘derisory and
nowhere near acceptable’. Officials are
also lukewarm about the lord chancellor’s
proposals to ease solicitors’ cash-flow
difficulties.
20 January 1982
Is religious discrimination illegal?
In the UK it is only in Northern Ireland
that religious discrimination is, in certain
contexts, expressly forbidden by statute.
Elsewhere, a person claiming to have
suffered such discrimination has only
limited and indirect possibilities of
obtaining legal redress.
January 1962
The Ladies Annexe
Dear Sir
I am charmed to see your notice on
this subject. It is a far cry from my
first introduction to the Society’s hall
in November, 1920, when I sat for the
Preliminary Exam and was the only woman
candidate. I then looked in vain for a notice
that there was a ‘Ladies’ provided; I was
too shy to enquire of the attendant at the
Hall door.
Yours faithfully
Winifred Lewis (admitted 1924)
10
Sweeting the starship trooper
When is a High Court judge not a
High Court judge? When they have
not got their letters patent – which
have, like so much else, been waylaid
by the pandemic.
Former Bar Council chair Derek
Sweeting QC, now Mr Justice Sweet-
ing, was sworn in as a High Court
judge on Wednesday in the traditional
ceremony featuring wigs and gowns
and lawyerly (attempts at) humour in
the grand surroundings of Court 4 of
the Royal Courts of Justice.
Alas, Lord Burnett could only pres-
ent Sweeting with what the lord chief
justice said was ‘in essence, a dummy
box’ as the production of letters pat-
ent has been ‘significantly impeded’
by the pandemic. Just wait until he
Upwardly mobile (?) Gove wins his bet
It’s been a good week so far for one-time
lord chancellor Michael Gove MP as his name
continues to feature in speculation about the next
prime minister. In the Court of Appeal, meanwhile,
Gove’s Cabinet Office succeeded in an appeal over
the decision to award a Covid-era contract to
Public First Ltd without public competition.
The company had been retained to provide
communications expertise on the government’s
public messaging strategy (encapsulated by
those three-part slogans such as ‘Stay at home,
Protect the NHS and Save Lives’).
The High Court ruled last year that the £564k
contract gave rise to apparent bias because
of the ‘personal association’ between Dominic
Cummings, then chief adviser to the prime minis-
ter, and the owners of Public First. It represented
a victory for campaigners the Good Law Project,
which brought the claim under the guidance of
Firm serves up ingredients to support community
Obiter applauds the efforts of Essex firm Birkett
Long, which celebrated its 200th anniversary
with a pledge to carry out random acts of
kindness in the local community. The promise
concluded with a collection in December across
the firm’s offices in Colchester, Chelmsford and
Basildon to give supplies to local food banks.
Other firms will have done similar, but in this
case the firm even gave us itemised details of
what was collected in the lead-up to Christmas.
The most commonly donated item was a packet
of biscuits (52 packets), with nappies (44
packs) and tins of fruit (34) next in line.
Sarah Humphryes, assistant marketing manager
at Birkett Long, said: ‘It was wonderful to see all
of our staff across three offices get involved in
LAW SOCIETY GAZETTE 21 JANUARY 2022
hears about the pension…
Swearing-in ceremonies are
strange affairs. For many of us who
see High Court judges only in work
mode they present a rare glimpse
of the man or woman beneath the
wig. For instance, Obiter learned
Sweeting is – or at least was – a
big fan of Star Trek, prompting his
now-former chambers colleague Ra-
chel Langdale QC of 7 Bedford Row
to quote Jean-Luc Picard. ‘Seize the
time, live now. Make now always the
most precious time. Now will never
come again,’ she said, channelling
her inner Patrick Stewart. We trust
he will remember that when a junior
counsel insists on repeating their
weakest point at 4.15pm on a Friday.
executive director Jolyon Maugham QC.
At the time of the decision, Gove and Maugham
entered a little Twitter spat, with the barrister
offering to stake £100 that the government
would lose the appeal too, and asking Gove to
nominate a charity. Gove responded by suggest-
ing the RSPCA, which may or may not have been
a reference to Maugham’s infamous tweet from
December 2019 revealing he had killed a fox with
a baseball bat.
The Court of Appeal ruling ensured that Gove’s
money was safe, as well as finding that the original
decision had been an ‘unprecedented outcome’
and that a failure to carry out a full and negotiated
contract procedure during a pandemic emergen-
cy was not indicative of apparent bias.
Maugham, characteristically unabashed, has
already indicated that the Good Law Project will
ask for permission to go to the Supreme Court.
Food for thought: Birkett Long’s Charlotte
Burkert, Holly Smith and Philip Hoddell
this firm-wide initiative. Birkett Long is here for
good and we are delighted to continue to make a
difference to those in our local communities.’

Joshua Rozenberg
Columnist
Showing the workings of the family court
‘There must be a way of allowing
openness so that people can see what
we do, understand what we do… and yet
maintain the anonymity of the individuals
involved,’ the president of the High Court
Family Division told the Commons justice
committee this month.
As Sir Andrew McFarlane explained, it
was no longer tenable to say that everything
had to be kept out of the public gaze just to
protect someone’s identity.
He offered no examples. But when Mrs
Justice Lieven allowed Andrew Griffiths,
Conservative MP for Burton from 2010 to
2019, to be identified as a man who had
used coercive and controlling behaviour to
ensure that his wife submitted to his sexual
demands, she was clearly right to reject the
former MP’s request for anonymity – even
though naming him would make it easy
to identify the infant child whose welfare
was the court’s main concern. Lifting
most reporting restrictions on the case last
month, the Court of Appeal agreed that
‘there was a specific public interest in the
publication of this particular judgment,
showing the Family Court working
effectively in this difficult context’.
The proceedings began in 2018 when
Griffiths, by then separated from his wife
Kate (pictured), asked the court for an order
allowing him to spend time with their child.
Judge Williscroft, sitting in Derby, found
that Griffiths had abused his wife both
verbally and physically. The judge decided
on the balance of probabilities that he had
raped her on more than one occasion by
initiating intercourse while she was asleep
and so unable to consent.
No reporters could cover the fact-finding
judgment issued by Williscroft in 2020:
nobody would have known that the case,
listed anonymously, involved a former MP.
Griffiths had lost his job as a government
minister in 2018 after it was revealed that
he had sent hundreds of sexually explicit
messages to two constituents. He was not
reselected by his party for the 2019 general
election and Kate Griffiths won the seat in
his place.
Two reporters, Brian Farmer and Louise
LAW SOCIETY GAZETTE
If the courts had not chosen to take
the path of openness, this sad but
important case would not have
received any of the publicity it so
richly deserved
Tickle, did some digging and asked the High
Court for permission to report Williscroft’s
judgment. Lieven granted that application,
allowing the parties to be named but
preserving the anonymity of their child.
Publication was put on hold until the appeal
judgment last month.
Lieven had to respect the child’s right to
privacy. But that was limited: a three-year-
old had no access to social media.
The child’s privacy rights had to be
balanced against the principle of open
justice: there was a strong public interest,
said the judge, in the public knowing about
a judicial finding against a former law-
maker who had served as a minister.
Griffiths told a newspaper that the
inappropriate texts he sent in 2018
had followed a mental health crisis.
But Williscroft found that he had been
sexting seven years earlier. In those
circumstances, reporters had a right to set
21 JANUARY 2022
OPINION
the record straight.
And there was a broader interest in
publication. Victims of domestic violence
were often unwilling to come forward.
There was a ‘real benefit in a judgment
such as this being brought to the public’s
attention to show the workings of the
Family Court in a transparent fashion’. It
was ‘exceedingly rare for judgments to be
published where there have been findings,
not challenged on appeal, of domestic
abuse, including coercive and controlling
behaviour’.
I dropped in briefly on the former MP’s
appeal hearing last November. Three judges
sat in open court but Tickle and Farmer, the
respondents, had scrupulously observed
the anonymity requirements and I had
no idea who the case was about. In their
reserved judgment, Dame Victoria Sharp,
Lady Justice King and Lord Justice Warby
said that Lieven’s approach and conclusions
had clearly been correct. If anything, the
judge had slightly undervalued the mother’s
right to tell her story, given two unusual
features of the case: Griffiths was not
challenging Williscroft’s findings and he
was not claiming privacy rights for himself.
But there are still some reporting
restrictions in force. The Court of Appeal
judges referred to ‘the disclosure by
[Richard] Clayton QC of some of the appeal
papers in circumstances that appear
arguably to fall outside the scope’ of what
was permitted by the Family Procedure
Rules. The issues this raised would be dealt
with separately, the court said.
Lieven rightly concluded that it was
important for the public to see a judgment
‘where a powerful man is held to account
in respect of abuse of his female partner’.
Though the final ruling was reported by
national and local news outlets, the timing
meant that coverage was not as extensive as
the judges had hoped.
But if the courts had not chosen to take the
path of openness, this sad but important
case would not have received any of the
publicity it so richly deserved.
joshua@rozenberg.net
11
F E E D B ACK
HAVE YOUR SAY...
All letters (maximum 350 words) must include a full postal address and be sent
to: Editor in Chief, Law Society Gazette, 19 Bell Yard, London WC2A 2JR LDE 100
or email paul.rogerson@lawsociety.org.uk
Getting ready for digital assets
The master of the rolls’ comments (11
January) that every lawyer will need to
familiarise themselves with blockchain
and blockchain-linked digital assets are,
of course, entirely correct. However he
does appear to have overlooked the need
for the judiciary to do likewise and for
the courts’ processes and mechanisms to
accommodate this emerging technology.
We have already seen claims for the
recovery of lost/stolen digital assets
and, very soon, are likely to see the first
contentious probate claim involving such
assets. There are already a number of firms
invoicing their clients not in fiat currency,
but in electronic cash (such as bitcoin),
though I predict in the next five years we
will see the first damages claims where
the amount sought is in electronic cash
or other blockchain-linked digital assets
(such as ethereum or Bitcoin Core). The
No single UK regime for cohabiting couples
A recent Gazette article contained the
statement: ‘The UK needs an update in its
laws so that unmarried couples have equal
rights to those of registered (civil) partners or
spouses’ (tinyurl.com/2p8bwmws).
It is unfortunate when articles in a legal
publication refer to ‘the UK’ as if it has a
single legal regime. While certain laws do
apply across the UK, the various laws which
comprise private client practice are, in the
main, very different.
The author may have had the different
positions of cohabitees across the UK in mind
when writing the article, but it is not clear
and the way it is written suggests otherwise.
The paragraph that follows the reference to
‘the UK’, then says: ‘At present unmarried
couples who cohabit for any period of time
have no automatic entitlement to financial
support from the other party when they
Time for scrutiny of family decisions
I was interested to read about the secrecy
under which family courts have operated for
years. Is it time for there to be full scrutiny
of judicial decisions by the public as in the
Crown courts?
I sat frequently in the family court for 15
years as a recorder. Apart from the times
12
courts will need to be ready to handle such
proceedings. It is already established that
these types of assets are property under
English law so it stands to reason that the
court can grant security over these assets
and, of equal importance, order a party to
provide security for costs in (for example)
bitcoin, rather than sterling or other fiat
currency. It should now be taking the time
to consider the necessary mechanisms and
procedures for making such orders viable.
As many in the profession still worry about
the status of both English law and the courts
in the post-Brexit world, it seems to me that a
focus on the use of digital assets presents an
excellent opportunity to help maintain and
enhance our standing as the global centre of
the legal and disputes world.
Simon Cohen
Senior associate, ONTIER LLP, London
separate.’ This could easily be understood
by anyone reading it that the UK does not as
a whole provide any remedy for cohabitees.
However Scotland has laws which apply to
cohabitants when a relationship terminates
on separation or death, albeit these laws
do not give cohabitees the same rights as
spouses or civil partners.
For what it is worth, I do not think there
is necessarily widespread support for
cohabitants having precisely the same rights
as married couples. I do agree, however,
there is a widespread misapprehension
about common law marriage which needs
to be addressed. This makes it all the more
important that the differences across the UK
are made plain.
Karen Wylie
Solicitor, Glasgow
that my judgments were challenged in the
appeal court (and I have to say that I was far
from satisfied on occasion that the findings
against me were justified on the facts), there
was no feedback whatsoever.
Every now and then I suspected that
someone from the justice department was
LAW SOCIETY GAZETTE 21 JANUARY 2022
observing me from the back of the court, but
if so nothing ever came of it. The only other
feedback I received was from a probation
officer who at the conclusion of a case
observed that I was ‘a safe pair of hands’.
There were times when I was crying out for
someone to take me aside and, if necessary,
criticise my approach, my behaviour in court
toward counsel or witnesses, whether I was
tripping over myself in giving the verbatim
judgments that were expected of me – giving
me the chance if necessary to improve.
Is it any wonder that left to one’s own
devices in this way, there is a temptation to
believe that one is always right, to develop
without realising it bad habits, perhaps
treating counsel rather arrogantly?
As a solicitor in practice dealing day in,
day out in family problems, I could form my
own sometimes critical appraisals of other
judges’ behaviour, and admittedly learn
from this when I sat myself. This was not
enough.
It is a lonely existence out there and as a
part-timer one does not have the luxury of a
guaranteed full-time position – all the more
need for helpful scrutiny which the public
we are serving is currently denied.
John Greenwood
Retired recorder, Chippenham, Wilts
Retirement support
I was a sole practitioner but had the good
luck to take on partners who continued
the practice. I am currently a consultant
so I should not be concerned about the
Solicitors Indemnity Fund closing.
However, I am shocked that my sole
practitioner colleagues are being left ‘in the
lurch’. The Gazette has reported that the
Solicitors Regulation Authority intends to
pay the remaining funds to the Law Society.
I am still paying for my practising
certificate and, as a member of the Society,
would ask that it sets up a fund with the
money received. This in effect will be a
similar beast to the SIF. I would call on all
other solicitors to ask for a vote on this.
After all, we are the Law Society and
surely ought to support each other whether
sole practitioners or partners in one of the
giant firms, or something in between.
In addition, I would have no objection
to paying an extra £10 a year to support
colleagues who find themselves in the
invidious position of worrying during their
retirement in case a claim arises and they
are unprotected.
Jennifer Margrave
Guildford

500 extra staff
for community
sentences
Ministry of Justice
14 January
More than 500 extra community
payback staff are being recruited
to get offenders serving an extra
3m hours of payback to their
communities every year.
The £93m move will see more
focus on outdoor projects, such
as picking litter from roadsides
and scrubbing graffiti from
subways, that help improve
the environment and allow the
public to see justice being done.
Deputy prime minister
Dominic Raab visited
Birmingham yesterday to see
offenders improving a popular
tow path which will be used
by thousands of visitors to this
summer’s Birmingham 2022
Commonwealth Games.
The work is the result of a
new, national partnership
between the Probation Service
and Canal & River Trust which
sees offenders clearing litter,
tidying tow paths and cutting
back nettles across some of
England and Wales’ 2,000 miles
of waterways and canals.
On this one stretch of canal
alone, offenders completed
more than 15,000 hours of
unpaid work along the pathway
during 2021. The agreement is
the first of a number of national
partnerships set to be agreed
between the Probation Service
and organisations this year.
Raab met with the Canal &
River Trust’s chief executive
to see offenders working on a
path along a popular route to
Alexander Stadium.
Stop jailing
pregnant
women
Rona Epstein
The Guardian, 18 January
In the past three years, two
babies born inside English
prisons have died. Prison
will never be a safe place for
pregnant women, so why are
our courts still sending them
there?
Sending pregnant women to
prison is unnecessary. Multiple
countries, including Russia,
Brazil, Mexico and Colombia
already have laws to prevent
pregnant women going to
prison. It is time for the UK to
follow their example.
English courts can and
should use alternatives to
imprisonment for pregnant
women. If they were given
community orders instead, the
probation service would help
them to access support, training,
education and counselling at
women’s centres, which offer
support in a non-punitive
setting. This kind of support is
proven to be effective in helping
women turn around lives that
were previously chaotic.
Non-punitive residential
options, along the lines of
therapeutic communities
such as the Jasmine Mother’s
Recovery in Plymouth and
Phoenix Futures in Sheffield,
should be created and sustained
across England.
I spent two days at Jasmine
with the mothers and staff, and
saw the nursery full of babies.
The work they do is life-saving.
It is accepting, non-judgemental
and trauma-informed.
LAW SOCIETY GAZETTE
Magistrates
can help with
criminal backlog
Dominic Raab
Daily Telegraph, 18 January
This government is determined
to deliver swifter justice, punish
criminals and stand up for
victims. So, I am strengthening
the powers of our magistrates’
courts to deal with criminal
cases, by increasing their
sentencing powers from six to
12 months for a single offence.
Covid-19 has created a
backlog in the courts, in
particular the Crown courts
where social distancing
disrupted jury trials. The
backlog is coming down,
and magistrates have shown
outstanding commitment
to bring the backlog in the
magistrates’ courts down by
around 70,000 from its peak.
In many ways, magistrates are
the unsung heroes of our justice
system. They may be volunteers,
but they are linchpins of the
criminal justice system and
serve as the starting point for all
criminal cases.
While the most serious
cases go on to Crown courts,
magistrates are dedicated,
well-trained and supported
with legal advice, allowing
them to deal with a range of
cases themselves – from traffic
offences to burglary.
As things stand, magistrates
must send any crimes
warranting a jail term of more
than six months – such as fraud,
theft and assault – to the Crown
court for sentencing. I believe
they can fairly and effectively
deal with many of these cases.
21 JANUARY 2022
SEEN & HEARD
James Rossiter
@JamesDRossiter
Shocking but ‘not
extraordinary’ –
Sundeep Nottingham lawyer
@bbc5live confirms last week
2025 trial date for Leeds Crown
Court first trial date offered –
waiting since 2016 when case
investigation began – 9 years
offence to completion – could
be longer #2025 #9YEARS
@TheCriminalBar
The CBA
@TheCriminalBar
Our members are the
only thing that has
kept the system on the rails for
the last 2 years. With no funding
increase in 25 years, working
conditions are intolerable. We
are dedicated to justice & hard
working (+60h/pw.) 96% say
enough. Inject funds now to
save the future CJS.
The Secret
Barrister
@BarristerSecret
Magistrates’ courts,
presided over by volunteers
with no legal training, are run
in conditions of chaos. They
are by any measure a lesser
form of justice. Rather than
fund the system properly, the
government wants more cases
heard in these conditions.
Douglas Lloyd
@DouglasLloydUK
Magistrates being
“delighted” to
impose longer sentences
is what worries me most.
The Magistrates Association
could’ve campaigned to get
more training, or better
funding and support for court
staff, but no, the priority was
locking people up for longer.
Sian Jones
@SianCoJo
I can’t imagine any
of my colleagues
champing at the bit to lock
people up. We do want to play
our part in helping defendants
and complainants obtain justice
quickly and effectively.
13

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Tue 25 January, 10:00-12:00
One year on from the end of the
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The aim of the event is to assess the
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January, 9am-10am.
During the winter months, the risk of
weather-related personal injury claims
can increase. But who’s responsible
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solicitor help?
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Location – Online - Cost - From free
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Wed 9 February, 10:00-11:00
The MoJ has published a consultation on
the proposals arising from the Criminal
Legal Aid Independent Review (CLAIR)
report. It is essential that all criminal legal
aid ¿rms respond to this consultation. This
webinar will summarise the MoJ proposals
and will assist you in understanding the
impact they might have on your ¿rm and
identify issues you may wish to comment
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i lawsociety.org.uk/events
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I am acting in a criminal matter
where the client is publicly funded
and now wishes to change solicitor.
What factors do I need to consider?
The retainer is a contractual relationship
and subject therefore to legal
considerations. In principle, a client can
end the retainer with you at any time and
for any reason. However, when a client
is a defendant in criminal proceedings,
diɣerent practical considerations apply
to the determination of the retainer and
withdrawal depending on the source of
client funding.
If the defendant is funded by legal aid
:Kile eYer\ eɣort Kas Eeen maGe to ensXre tKe accXrac\ of tKe information in tKis article it Goes not constitXte leJal aGYice anG cannot Ee relieG XSon as sXcK 7Ke LaZ 6ociet\ Goes
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then regulation 14 (change of provider) of
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by a Court and Choice of Representative)
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for a change of representation.
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such an application.
The grounds for change are set out
in regulation 14(3) and (4). You must
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Codes of Conduct that you consider
obliges you to withdraw from the
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• the particular circumstances that
render you unable to represent the
individual.
However, you must take legal professional
privilege (LPP) into consideration as this
may limit the information that you can
give without your client’s consent
For more information, please see the Law
Society’s Practice Note on Withdrawing
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COV ER STORY CO N S U LTA N T S O L I C I TO R S

THE LOW DOWN

Investment bank Arden Partners predicts
that by 2026 a third of solicitors will be
working as self-employed consultants
within firms designed to accommodate
their status. That is described by one
industry expert as ‘overly optimistic’.
Still, with 63% of lawyers saying they
want ‘flexible working’, consultant
solicitor firms report fast growth and no
shortage of applications. Fee-earners can
commonly expect to keep 70% of what
they bill, and are spared the targets that
plague life in private practice. The losers
might be junior lawyers, who could see a
reduction in opportunities to learn their
profession first hand and in person from
senior colleagues.

16 LAW SOCIETY GAZETTE 21 JANUARY 2022

 COVER STO RY CO N S U LTA N T S O L I C I TO R S

Law firms for self-employed consultant solicitors are growing

rapidly. Could they really accommodate a third of all solicitors
within five years? Marialuisa Taddia reports

SOLO
CLIMBERS
Holding on to employees has been a big
challenge for law firms since the pandemic
began. It is emblematic that this problem
has been particularly acute in City firms,
despite their high salaries and prospects.
‘All City firms have had staff retention
problems,’ says Fieldfisher partner John
Linneker. ‘People decided there may be
more to life than coming into the office
nine to five, becoming a partner and [even]
becoming a lawyer. So we have had, along
with other firms, retention issues.’
A recent Thomson Reuters survey found
that almost two-thirds (63%) of UK lawyers
want to work flexibly, nearly three times the
level (22%) observed before March 2020.
Enter consultant solicitor firms, a new
breed of law firms capitalising on the
zeitgeist. ‘Employed lawyers spend half
their time living in fear,’ says James Knight,
CEO, founder and shareholder of AIM-listed
Keystone Law. ‘They fear the dreaded billing
targets, missing promotion or losing jobs.’
While the UK top-100 firm is ‘exceptionally
selective’, those who are invited to join it
are ‘able to take control of their practice,
enjoy the flexibility which comes from
being self-employed and feel a wonderful
sense of security’, says Knight. ‘Our model
encourages them to focus on what the client

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LAW SOCIETY GAZETTE 21 JANUARY 2022 17

COV ER STORY CO N S U LTA N T S O L I C I TO R S

ATTRACTIVE INVESTMENT
Consultant solicitor firms are spurring consolidation in the sector, as well as attracting significant
investment. ‘Taylor Rose MW has a track record of successfully acquiring and consolidating other firms,
and is always looking for further acquisition opportunities,’ says CEO Adrian Jaggard. In 2020, the then
Taylor Rose TTKW bought Croydon-based McMillan Williams Solicitors Ltd out of administration, making
Taylor Rose a top-75 UK firm. Most recently, it acquired Warrington practice FDR Law last year as part of
the firm’s expansion in the north-west of England.
‘This is part of our integrated growth strategy alongside the growth of the consultancy division, which is
bringing us significant, sustainable growth from a diverse and robust set of revenue streams,’ Jaggard says.
Setfords, which merged with Mayfair-based commercial practice Summers Solicitors in 2018, is backed
by private equity. In 2021 Phoenix Equity Partners took an investment in the firm for an undisclosed sum,
following the exit of Business Growth Fund which had invested £3.75m in the firm in December 2016.
In November 2017 Keystone Law was one of the first UK firms to list on the London Stock Exchange.
Major shareholders include Canaccord Genuity Group, Liontrust Asset Management and Jupiter Asset
Management.
Excello Law has a different approach. It does not have investors and is self-funding. ‘I know that taking
investment can have a material impact on the firm’s strategy and culture,’ says founder and managing
director George Bisnought. ‘Our culture is key. Excello Law was born as a result of my own experiences
as a solicitor working in both private practice and industry. It’s important to me that our lawyers have
the freedom to determine how they work with their clients, without the need to keep investors or
shareholders [or both] happy.’ In April 2020, the firm acquired Jayes Collier, a boutique practice in the
entertainment and creative industries.

wants while the firm provides a benevolent
supporting role. This is why we believe we
are the country’s happiest law firm.’
In contrast to the traditional firm, the
solicitors are self-employed but rely on
a central service platform, brand and
management infrastructure in exchange
for a cut of their fees. ‘To a large extent, the
consultant model is similar to a barrister’s
chambers in that the business, in return
for a percentage of revenue, takes care of a
range of operational and regulatory issues,’
says Tony Williams, former Clifford Chance
managing partner and principal of legal
consultancy Jomati.
The consultancy business model
represents a ‘small fraction’ of the UK’s
£37bn legal services market and of the
157,000 practising solicitors in England
and Wales. But Arden Partners expects
it to become ‘the dominant consolidator
model’ among high street and mid-market
law firms, ‘stimulated by the success of
remote working during the pandemic and
the benefit of significant investment in IT’.
The investment bank predicts that by 2026
‘approximately a third of all lawyers could
be working under the consultants’ banner’.
‘Dismissed as either a passing trend or of
minor consequence,’ the Arden report says,
the legal consultancy model ‘is not only
here to stay but a significant competitive
threat to the traditional partnership model,
as the high street and smaller mid-market
firms face the need for unprecedented
consolidation’.
All the consultant firms approached by
the Gazette have experienced a significant
increase in both revenue and recruits since
the start of the pandemic.
Taylor Rose MW, which started in
Peterborough in 2009 and now has 32
offices around the country, operates a legal
consultancy division which has almost
doubled the number of consultant solicitors
within the past year.
‘The number of consultants we are
attracting is rising very quickly and this is
the highest-growth part of our business,’
For lawyers with experience, a good
following and who want to be in
control of their working lives, the
sky’s the limit
George Bisnought, Excello Law
CEO Adrian Jaggard tells the Gazette,
adding that consultants are joining the
firm at a rate of 15-20 per month. ‘This
momentum has been helped significantly
by the impact of Covid-19, and an increased
acceptance of home working, with
consultancy revenues in the latest financial
year almost quadrupled compared to the
years pre-pandemic,’ he says. The firm has
around 500 employees and over 350 fee-
earning consultants, increasing from 90 at
the start of the pandemic.
Overall, Taylor Rose MW generated
revenues of £70m in the year ended 30
September 2021. The consultancy division
accounted for more than 40% of this.
‘Like all firms, we had no real idea what
Covid-19 would mean for our clients, the
economy and our business,’ says Chris
Setford, co-CEO of Setfords, top-200 UK law
firm. The consultant-led firm was founded
in 2006 by Chris and his cousin Guy Setford.
‘But within a few months it became clear
that while some aspects of the economy had
been terribly affected, the property market
and other areas that needed legal support
were continuing to thrive, and in some
cases accelerating. And so too, was the
interest in the Setfords consultancy model.’
Between mid-March at the start of the first
lockdown and June 2020, the Guildford-
based full-service firm signed 54 new
lawyers, more than double the number that
joined during the same period in 2019. By
the end of December 2020, 121 consultants
had joined the firm. ‘While some lawyers
were facing a worryingly uncertain
future, for many the pandemic had simply
prompted them to take stock of their
careers and their wider lives,’ says co-CEO
Guy Setford. ‘For those looking for greater
earning potential and a better work-life
balance, we were an obvious choice.’
Setfords had more than 400 consultant
lawyers at the end of the financial year
on 30 September 2021, and turnover had
increased 84% to £34.5m.
Excello Law was founded as a ‘fully agile,
consultancy model’ nearly 13 years ago.
About 15% of its lawyers have been with
the firm for a decade or more, according
to founder and managing director George

18 LAW SOCIETY GAZETTE 21 JANUARY 2022

 COVER STO RY CO N S U LTA N T S O L I C I TO R S

While some lawyers

were facing a
worryingly uncertain
future, for many the
pandemic had simply
prompted them to
take stock of their
careers and their
wider lives
Guy Setford, Setfords

Bisnought, proving ‘the longevity and
sustainability of consultant working.
‘Lawyers were effectively working
as consultants during lockdown but,
arguably, without all the benefits,’ says
Bisnought. ‘It is clear that a significant
proportion wish to keep the flexibility
they have enjoyed [since March 2020]. We
hear of more traditional firms battling
with policies around hybrid and flexible
working but without having the culture in
place that supports the process.’
In the financial year to 30 June 2021, the
firm increased turnover and workforce by
20% and 23% respectively. It now has over
130 consultant lawyers and a support team
of 25.
Established in 2002, Keystone Law is a
pioneer in this area. ‘[Our] model has been
growing in popularity for a number years
now because it enables lawyers to provide

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The room for progression and profile in this role is there for all
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LAW SOCIETY GAZETTE 21 JANUARY 2022 19

COV ER STORY CO N S U LTA N T S O L I C I TO R S
The number of
solicitors working
from home since
Covid has increased
risk for insurers
Adrian Jaggard, Taylor Rose MW
a better service to clients,’ Knight says.
Revenues increased 10.9% to £55m and
profits 4.5% to £5.96m in the year ended
31 January 2021; 58 ‘principals’ joined
the firm over the period, with a further
21 added in the first six months to 31 July
2021, reaching a total of 386. ‘Principals’
are the senior lawyers who own the service
company (called ‘pod’) which contracts
with Keystone.
Being served
So what do consultants get for the
proportion of fees they give to these
platforms? At Excello the standard fee share
split is 70:30 in favour of the self-employed
consultant partner. In exchange the firm
provides ‘a significant range of services and
facilities’ including its office network, full
regulatory, finance and case management,
professional indemnity insurance, IT
support, knowhow, PR, marketing and
business development services, induction
and training, and an events programme.
There are nine ‘free to use’ offices across
the country, including in Manchester and
Leicester, added in 2021. ‘We are moving
to larger facilities in Birmingham and
looking for other locations,’ says Bisnought.
The firm also has a dedicated paralegal,
secretarial and admin team – Excello 360 –
which the lawyers pay for as they wish on an
hourly basis.
Taylor Rose MW provides consultants
with a referral network, marketing support,
a recognised brand, ‘sophisticated’ IT
support and systems, PII and Solicitors
Regulation Authority supervision, among
other services, according to Jaggard. Again,
the split is typically 70:30 in favour of the
20
fee-earner, although this varies depending
on whether a consultant chooses to work
from home or use the firm’s offices and
facilities, and the levels of their billing.
Keystone keeps 25% of the client fees
for its central office which provides the
infrastructure, facilities and support
consultants need.
Setfords’ co-CEOs say: ‘Our fee structure
reflects the achievements of each lawyer.
The more you bill, the more you earn.
For example, once you bill over £200,000
you can earn up to 80% of your billings.
In return we supply the largest and
most comprehensive support package
in the industry.’ This includes accounts,
administration, new business generation,
reception services, marketing and PR,
scanning, tech support, compliance and
management support. Each lawyer also has
access to premium office space around the
UK if they need it – with key locations in
Chancery Lane, London and Guildford.
Another touted advantage for lawyers
is a free hand in setting the price of legal
services. At Keystone consultants have
hourly rates in much the same way as
traditional law firms but also ‘complete
control over their fee structure and they
can change this to suit the prevailing
circumstances’, says Knight.
‘Our partners have worked for and often
been equity or salaried partners in top-100
law firms,’ says Bisnought. ‘They are free
to set their own fee structure with clients
directly. There are no central billing targets
or pricing.’
According to an Arden analysis of SRA
data, the number of sole practitioners
has dropped by 47% in the past decade
LAW SOCIETY GAZETTE 21 JANUARY 2022
and the number of partnerships by 39%;
meanwhile, incorporated firms now
make up 51% of regulated practices, up
from 22% a decade ago. ‘This rotation
away from traditional partnership
models and towards more corporatised
structures has been driven by the ability
to attract external investment and drive
more effective business models,’ such as
consultant solicitor firms, according to
Arden.
‘We see sole practitioners and SME
firms – overburdened by day-to-day law
firm management, especially around PII
renewals – who are looking for regulatory
and back-office support services,’ notes
Bisnought. ‘As a result, we are experiencing
an unprecedented growth in recruitment
and enquiries. We believe consultant
working will become the norm for many
lawyers because it offers so many benefits
over the traditional model.’
‘Insurers are becoming more risk-averse
in areas such as conveyancing and have
been pushing up premiums to cover
potentially high payouts,’ Jaggard says.
‘The number of solicitors working from
home since Covid has also increased
risk for insurers, particularly for those
working in smaller firms without well-
established risk, compliance and quality-
control processes. We are seeing a lot
of experienced solicitors who no longer
want the responsibilities of compliance
and increasing operating costs, who are
instead seeking the relative security and
freedom of operating as consultants. This
is certainly a contributing factor to the
growth of our consultancy division.’
The use of corporate structures is not in
 COVER STO RY CO N S U LTA N T S O L I C I TO R S

itself a passport to success. Viv Williams,
who provides business advice to law firm
owners, says there are almost 10,000 law
firms in the UK and many of these are
run in a traditional way, even if they are
incorporated. A client with a turnover of
£3.5m converted from a partnership to
a limited company, assuming that the
salaried partners and associates would
want to be directors in the new entity. ‘But
all the people refused to take up the offer,
leaving the two owners with a succession
problem,’ he says. ‘This is a typical issue for
as many as 3,000 practices where younger
[lawyers] do not want to be the owners
of a law firm with all the challenges it
represents.
‘The new era for law firms will either
be very large or very niche. We have lots
of interest from private equity, which
will invest in technology and process.
Additionally the consolidators will acquire
many traditional practices. These new
technology-driven models may not want
the numbers of qualified solicitors in the
future so the solution for many non-
owners could be joining a consultant
solicitor model.’
In the short-term the consultant solicitor
models will have ‘the greater impact’ on
the high street and mid market firms, but
Williams says: ‘We are already seeing
a new hybrid model which combines
the traditional firm structure and a
consultant solicitor model.’ An example
of this approach is Taylor Rose MW whose
consultancy arm was launched in 2014.
‘So far larger firms have been somewhat
protected from this trend but they will
soon recognise the benefits,’ Williams
says.
Succession is a typical issue for
as many as 3,000 practices where
younger [lawyers] do not want to
be the owners of a law firm with all
the challenges it represents
Viv Williams, Viv Williams
Consulting
Jomati’s Williams believes that the
consultant model will be ‘relevant at all
levels in the market. The ability of firms
to move to a fixed cost employee model to
a variable cost consultant model will be
attractive especially for some specialist
areas where there is not a consistent flow
of work’.
Despite the many advantages, there are
drawbacks. Jomati’s Williams says that for
investors the consultant model is relatively
attractive, but it relies on growing the
consultant cohort and those consultants
keeping busy. ‘If consultants leave to
go in-house at a client then the revenue
stream is lost and will need to be replaced
by recruiting further consultants,’ he says.
For consumers, the issue is the ability of
the consultant to service work outside
their immediate skill-set. There may be
other consultant lawyers who can help but
this will depend on the size and financial
structure of the consultancy business, he
points out.
As for the consultant, Williams says: ‘The
challenge is to maintain a regular flow of
work. Although some work may be referred
by colleagues, most of it will be self-
generated. So if a consultant encounters
a quiet period, their income will fall.’ By
contrast, a traditional firm has ‘a portfolio
of practices which to a large extent protects
against a downturn in any one practice
area’.

Lloyd Platt & Co

Family and divorce solicitors

Solicitor 4-5 years PQE

Consultant Solicitors
Nationwide, 5+ years’ PQE, uncapped earning potential
Berlad Graham are looking for experienced Solicitors to
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needs and adapting to practice innovations.
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website at www.divorcesolicitors.com
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www.bglaw.co.uk
letter to: sara.norton@divorcesolicitors.com
1R$JHQFLHV3OHDVH

LAW SOCIETY GAZETTE 21 JANUARY 2022 21

COV ER STORY CO N S U LTA N T S O L I C I TO R S
Junior worries
Also potentially problematic are the
‘considerable’ implications of the model, says
Manda Banerji, immediate past chair of the
Law Society’s Junior Lawyers Division. ‘The
greater the number of lawyers working as
consultants, the fewer opportunities there
are for JLD members to receive supervision
and training, at least in any traditional
sense.’
Further, members of the JLD will be unlikely
to have the client list and market presence to
enable them to transition into consultancy.
And even if they could, many consultancy
firms’ PII cover will likely require consultants
to be a minimum number of years’ qualified,
Banerji notes. This is likely to be higher than
the JLD’s membership of up to five years’ PQE
(inclusive).
Also, after being a consultant for a period
of time, junior lawyers may find it difficult
to move back into the traditional law firm
structure. ‘So if a junior lawyer is considering
this move, they need to be certain it is right
for them and they need to be financially
secure in the event that there are periods
when there is little or no work,’ according to
Banerji. This could penalise those from lower
socio-economic backgrounds, who are likely
to have entered the profession with large
debts. This ‘could in turn affect the diversity
of the pool of consultants’, she says.
Banerji also warns against ‘an absence of
collegiality’ and ‘colleagues often competing
for the same work. While [consultant] firms
can be inclusive and positive internally,
and lawyers might get along personally,
ultimately individuals are working on a self-
employed basis and therefore the collegiality
will never be the same as in a traditional
team environment’. Junior lawyers should
consider whether the model would work for
them and ‘whether the limited supervision
would allow them to continue to discharge
their professional obligations appropriately’,
Banerji advises.
‘However if a consultant is not anxious
63%
Lawyers who want to
work flexibly, up from 22%
pre-March 2020, according to
Thomson Reuters
22
about sick pay, holiday, employee rights,
and the security of a notice period, then
consultancy trades this for a dramatically
improved work-life balance,’ she says. ‘This
may be attractive to some junior lawyers.’
‘There is no question,’ says Bisnought, that
‘consultancy offers a myriad of benefits and
opportunities’. But he emphasises that it has
to be ‘at the right time in your career’.
‘We know it isn’t right for everyone and we
are careful to understand the experience
and motivations of candidates before we
accept them into the firm,’ he says. ‘For
The greater the number of lawyers
working as consultants, the fewer
opportunities there are for JLD
members to receive supervision
and training, at least in any
traditional sense
Manda Banerji, former chair,
Junior Lawyers Division
lawyers with experience, a good following
and who want to be in control of their
working lives, the sky’s the limit. If you want
to choose your clients, schedule your day
as you choose, be there for life’s milestone
moments, get fairly rewarded for your work
and that which you bring in, work with
like-minded colleagues and put behind you
the office politics, hierarchies, glass ceiling,
billing targets, fights for promotion and
“need to be seen” culture, consultancy is a
breath of fresh air.’
Typical fee distribution
30%
centralised
support
services
70% consultant
fee-earner
LAW SOCIETY GAZETTE 21 JANUARY 2022
For lawyers wishing to build teams,
Excello’s HR department works with them to
put in place training plans and supervision.
‘Nearly all of our more junior lawyers work
out of one of our offices so have regular
contact with teams and close collaboration,’
says Bisnought, highlighting that the first
three trainees qualified recently, all of
whom started at the firm as paralegals.
At Keystone, there is a ‘vast array of social
and CPD initiatives to ensure Keystone
operates as a seamless and cohesive firm’,
Knight says. ‘Collegiality and a sense of
teamwork is strong and enables 35% of client
work to be cross-referred.’
A few years ago the firm established the
Keystone Academy to help train junior
lawyers, whether employed by Keystone
central office or by principals through
their ‘pod’ service company. ‘The Keystone
Academy also has a social element to it so
junior members can get to know each other
well,’ Knight says.
To aide its junior lawyers, among other
consultants, Setfords has a ‘wellbeing
department that maintains regular
contact with each consultant solicitor’.
It also organises parties and networking
events. ‘We ensure that each practice
area has its own email group for regular
communication. We also focus on
promoting and training any staff with
particular interests in pursuing a legal
career,’ says Chris Setford.
Despite the success story to date, observers
remain cautious. Jomati’s Williams says the
forecast of one-third of all lawyers working
under a consultancy model by 2026 ‘appears
to be very optimistic’.
‘Without doubt the current fragmented
legal market will change beyond recognition
in the next five years,’ says Viv Williams.
‘Will the consultant solicitor model
continue to grow and evolve at the current
rate? It is too early to tell.’
Marialuisa Taddia is a freelance journalist
47%
Drop in sole
practitioner numbers
in the past decade
020 8049 4000 jobs.lawgazette.co.uk J OB S

Who we are
Located in Northern Devon, we’re the Local Authority for the area of Torridge. We look after our residents and visitors
providing a wide range of services. All this in an area of 984 square km with a population of 67,000, it’s no easy task but
our team of around 270 employees are integral to supporting our local area and working hard to provide the best positive
service for our customers. We currently have two vacancies within our legal team.

Local Government Lawyer

£32,234 - £35,745 per annum (plus up to £8,000 relocation allowance)
Full Time, Permanent
Torridge District Council are seeking an enthusiastic and dedicated lawyer (solicitor, legal executive or barrister) to play an
important part in the delivery of legal services to the Council.
Responsibilities of Post
The successful candidate will be responsible for dealing with a varied caseload and providing professional legal advice to
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knowledge and experience in one or more areas of law relevant to Local Government (e.g. property, conveyancing,
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also remaining politically aware.

Legal Services Manager

£50,000 - £55,000 per annum (plus up to £8,000 relocation allowance)
Full Time, Permanent
Responsibilities of Post
We have an exciting opportunity for an experienced Solicitor or Legal Executive to lead the Council’s Legal, Land
Charges, Democratic Service and Elections Teams. You’ll form part of the Council’s Operational Management Team
and therefore contribute to the delivery of the Council’s Strategic Plan through the provision of specialist legal advice, a
solutions orientated and customer focused approach.
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deputise for the Head of Legal and Governance, as required.
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experience in management of at least one area of responsibility is essential, along with an appreciation of the issues and
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parts of the South West within walking distance of the dramatic North Devon Coastline.
If you are looking for a new professional challenge then contact Staci Dorey,
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discussion about how this opportunity might be right for you.
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To view a job description or to apply please visit our careers website
O[[WZ!JHYLLYZ[VYYPKNLNV]\R[VZ\ITP[H*=HUKJV]LYPUNSL[[LY
Closing Date: 3rd February 2022
Interview Date: 15th February 2022

LAW SOCIETY GAZETTE 21 JANUARY 2022 23

TEC HNOLOGY
LegalTech
Joanna Goodman
The beforetimes and what comes after
Can technology give legal services a transformational makeover in 2022?
In 2021, as online working service delivery
evolved into a hybrid model, law firms and
legal services providers recognised the
importance of investing in up-to-date cloud
services and communication technology.
Legal tech companies continued to attract
more and bigger investors willing to finance
startups, scale-ups, and expansions. They
were involved in increased M&A activity
and there were more initial public offerings
(IPOs) and higher valuations than in recent
years. According to Reuters, at least two US
legal tech companies achieved ‘unicorn’
status, with valuations of more than $1bn.
The UK was among the jurisdictions that
benefited from government investment and
academic initiatives around legal tech and
innovation, with multiple research projects
and reports presenting similar findings,
and expert advice. There was more choice
for those seeking legal tech education and
employment opportunities increased too.
But despite the pandemic shifting legal
and court services online, there are still
practical and cultural issues around
technology adoption. One of legal tech’s key
selling points is that it boosts productivity,
but a survey of 100 UK law firms found that
junior lawyers worked longer hours in 2021.
Notwithstanding encouraging
announcements about digital
transformation and opening up court data,
there is still the challenge of balancing
standardisation and collaboration with
competition, which drives innovation,
and firms sticking with traditional
operational models (such as lockstep and
hourly billing), which holds back real
transformation. Although legal tech is still a
hot investment, market consolidation in the
form of the rapid acquisition of successful
scale-ups may cool it in 2022.
This is a challenge because most
stakeholders in legal services recognise
tech-powered innovation as a winning
differentiator. Professor Richard Susskind,
writing in The Times last November,
highlighted the importance of embracing
technology to position English law as
24
‘the dominant platform for the conduct
of business internationally and the most
adaptable to technological advancements’.
Susskind went on to suggest establishing
a national institute for legal innovation to
coordinate innovative thinking and action
and keep the UK ahead of the innovation
curve. But is an institute for innovation a
catalyst or an oxymoron?
Arguing for innovation
Gerard Frith, entrepreneur in residence at
Taylor Wessing, understands this concept
as bringing innovation into the institution
rather than an attempt to institutionalise
innovation. ‘Structuring or formalising
innovation is acknowledging it as a strategic
priority and creating a decision-making
framework,’ he explains, adding that this
formal recognition opens up access to the
right stakeholders, funding for the creation
of new technology, for example, and the
ability to influence policy and decision-
making.
Frith’s role is fundamentally about
changing mindsets and challenging norms
in order to build new businesses that create
Litigators have a mindset that can
turn to innovation because they
need to entertain and dismiss
multiple possibilities when
building an argument or adapting
it to address points raised by
their counterparty
Gerard Frith, Taylor Wessing
LAW SOCIETY GAZETTE 21 JANUARY 2022
customer value, which is a challenge for
lawyers who are used to measuring, if not
always billing, by time.
Frith reiterates that creating value is the
key to institutional innovation, and he
has developed a process within the firm to
identify problems that could be solved by a
creative approach.
‘I look for problems rather than ideas,
because people get attached to their ideas
and forget their purpose,’ he says, adding
the important reminder that innovation is
an iterative process built on trial and error.
He observes that litigators use a similar
approach to build an argument.
‘Litigators have a mindset that can turn to
innovation because they need to entertain
and dismiss multiple possibilities when
building an argument or adapting it to
address points raised by their counterparty,’
he explains.
International rendezvous
Despite the limitations of online chat
functionality and Zoom breakout rooms,
and the inconvenience of time differences,
online events brought the international
legal tech community together to share
common pain points and lessons learned.
But as Zoom fatigue set in, it was good to
get out again, meet in person and explore
new horizons.
In November 2021 I attended ‘Rendez-
vous des Transformations du Droit’ in Paris,
a conference about legal transformation.
The massive exhibition hall was divided
into five ‘villages’ – legal tech, legal
design, public sector innovators, regtech,
and professional development/careers
– and there was a two-day programme
of presentations and panels. I focused
on sessions which addressed legal tech
developments that are transforming the law
in France and beyond.
The opening session set the tone with a
panel discussion on the potential for open
data and new tools and technologies –
including artificial intelligence – to
transform access to the law and legal
services delivery. It covered government
and public sector open data initiatives and
 T ECHNO LO GY TO P ICTEC H NOLOGY

INTERNATIONALISING A
STARTUP BUSINESS
An important discussion at the ELTA conference
was about internationalising legal tech start-ups.
Panellist Aidas Kavaliauskas expanded his legal
practice management software business Amberlo
from Lithuania into Poland and Latin America.
From a software engineering perspective, Lithuania
was effectively a sandbox for development before
moving into larger, more challenging markets.
Another barrier to expansion is familiarity
and trust. One reason why US startups expand
internationally comparatively quickly is that
European startups tend to focus on software
engineering first, while those in the US invest in
marketing, sales and business development at a
much earlier stage, observed Kavaliauskas. This was
borne out by a legal tech webinar, which was part
of Israel’s economic and trade mission to the UK.
The featured companies – LawGeex (AI-powered
contract review automation), LawFlex (an online
legal resourcing provider), Darrow (AI-powered
legal claim mining), and LitiGate.ai (an AI-powered
litigation platform) – that have international
‘Sandboxes’ help tech startups to develop presences and strategic approaches to marketing.
their product, but can block expansion

the value of bringing together different
disciplines across law and technology while
recognising the challenges around data
protection, privacy and ethics.
Legal design – presenting legal
information in ways that make it clear
and accessible – was well represented in
panels and the exhibition hall. There were
some especially stylish approaches to
social initiatives.
Co-founder Marie Potel-Saville explained
how Amurabi’s government-funded
legal design project to enable teenagers
to understand their rights when online
is helping to protect them from online
grooming and bullying. Amurabi’s
legal design projects include detailed
methodologies for measuring the impact of
different visual formats for presenting and
communicating information. And the event
itself walked the legal design talk – many of
the discussions included artists producing
sketch notes in real time.
Cutting edge
Mathieu Bouillon and Sumi Saint Auguste
of publishing, software and training group
Lefebvre Sarrut presented on cutting-edge
developments in tech and legal tech.
Bouillon suggested that the ‘metaverse’
concept would transform the future of
work and remote working might be the
first step to completely virtual working.
Although this is technically possible, the
pandemic has shown us the value of human
connection too.
More realistically, Bouillon highlighted
non-fungible tokens (NFTs), unique
digital data recorded in a blockchain, as
a new concept of ownership that would
require a legal framework (see also practice
points, p32).
Saint Auguste presented an analysis of
French legal tech startups, ranked by the
amount of funds they raised. As in other
jurisdictions, including the UK, legal tech is
behind other industries in terms of startup
fundraising, but it is catching up. In France,
the 2021 leaders in terms of fundraising
offer familiar services: e-signature
(Yousign), search (Jus Mundi), access to
legal help (Avostart), contract management
(Leeway), GDPR compliance (Data Legal
Drive), document automation (Legal Pilot),
and shareholder management (Uplaw).
Finally, Bouillon highlighted a social
media trend that is rarely raised in the
context of legal tech: the passion economy.
He touched on digital democratisation and
the freemium model, where if you like a
creator you follow them and tip or sponsor
them. Some legal tech startups begin as
passion projects, but like other commercial
services ventures, they need to find a
commercial edge in order to gain traction in
the marketplace.
Where is the incentive for change?
The European Legal Tech Association
(ELTA) held its annual conference online,
attracting participants from Europe, the
Baltics and beyond.
One session covered the challenges
around getting traction for groundbreaking
legal tech. Having highlighted common
barriers – lawyer caution, data privacy rules
in different jurisdictions, ethical issues
relating to AI and so on – ELTA’s vice-
president Jeroen Zweers may have identified
the biggest challenge to legal tech adoption:
‘There’s no incentive for law firms to change.
There are new players in the market, but the
customer is the driver for change. Law firms
didn’t have a problem with the pandemic,
their turnover increased, so the biggest
issue is the lack of incentive.’
This raises the question of whether
positioning English law as the international
standard for business is a sufficient
incentive to drive change across a sector
that has already had to adapt to changing
circumstances.
Before and after
We entered 2021 hoping that, with the
roll-out of the vaccines, Covid-19 would
be behind us by the end of the year. But as
we look down the barrel of a third year of
this pandemic, it is clear that some of the
changes it brought are no longer temporary.
The pandemic has continued for long
enough to permanently divide our lives,
careers and strategic decisions into ‘before
and after’. Transformation is defined by
before and after, and the pandemic has
made a space between before and after. To
paraphrase Susskind, it is time to leverage
the progress that has been made so far and
shift the research findings and pockets of
innovation across the legal tech landscape
into transformative action.

LAW SOCIETY GAZETTE 21 JANUARY 2022 25

LEG AL UPDATE
Immigration
Laura Devine, Laura Devine Immigration
Two years of tumult and ‘triumphs’
Last year was yet another tumultuous one
for the UK’s immigration system, with the
country simultaneously grappling with the
stifling effect of Covid-19 on international
travel and the impact of the end of EU free
movement on 31 December 2020. It also
marked the first full year of the UK’s new
points-based immigration system, launched
on 1 December 2020.
The rollout of worldwide vaccination
programmes saw the gradual relaxation
of travel restrictions. This proved positive
for the UK’s immigration system with
applications for some visa categories
rebounding to, or exceeding, pre-pandemic
levels. Applications for the Skilled Worker
route among non-EU nationals, for example,
were 37% higher in the first half of 2021
compared with the same period in 2019.
However, the situation for EU migrant
workers is less clear-cut. The grace period
for applying for the EU Settlement Scheme
(EUSS) ended on 30 June 2021, and the vast
majority of EU nations (as well as EEA and
Swiss nationals) who enter the UK are now
subject to the UK’s immigration system.
Those coming for work now struggle with the
points-based system, previously reserved
for non-EU nationals, which has resulted
in a huge drop in the overall number of EU
workers moving to the UK. To illustrate this,
there were just over 15,000 visa applications
from EU citizens in the first half of 2021,
representing 14% of applications. These
figures are quite drastic when compared
with those in 2019, when EU migrants
represented 45% of migrants coming to the
UK to work for at least one year.
Nevertheless, the EUSS has been largely
heralded as a success, with more than 6m
successful applications from EEA and Swiss
nationals and their family members to
protect their rights to live and work in the
UK to date. In particular, the Home Office’s
deployment of new technologies – including
an app which allows individuals to scan
passports and submit their photographs
– has ensured the smooth rollout of the
scheme, which otherwise might have come
to a standstill due to the pandemic. The
success of this technology has accelerated
26
the Home Office’s plans to digitise other
parts of the immigration system.
Other notable ‘triumphs’ in 2021 include
the launch of the Graduate visa – a route
which allows individuals to stay in the UK for
at least two years after graduating in the UK
– and the International Sportsperson visa,
which consolidates two previously available
routes for professional sportspeople.
2022: ‘ambitious’ plans on the horizon
This year promises to be another eventful
one for the UK’s immigration system, with
the Home Office announcing plans to
launch new migration routes and reform the
sponsorship system.
Last July, the government published its
UK Innovation Strategy, which set out
details of three new immigration routes to
be launched this spring. The first of the new
routes, the High Potential Individual, will
be open to applicants who have graduated
from a top global university. There will be
no job requirement and there will be an
option to extend the visa and settle in the
UK, something which is not permitted under
the new Graduate route. The government has
said it will explore opportunities to expand
this route to other categories of highly skilled
individuals.
The second route announced in the
strategy document was the Scale-up
route, which will be open to individuals
with a high-skilled job offer from a
qualifying UK scale-up company and
a salary of at least £33,000 a year. The
route will be unsponsored, but scale-ups
must demonstrate an average revenue or
LAW SOCIETY GAZETTE 21 JANUARY 2022
employment growth rate of more than
20% over a three-year period and at least
10 employees at the start of the three-year
period to qualify.
The final route the government announced
was the Global Business Mobility (GBM)
visa, which will consolidate the Intra-
Company Transfer (ICT) route and other
business mobility routes. The route may
be used by a business, with or without an
established UK presence, and will allow
employees of an overseas business to enter
the UK for a specific business purpose that
could not otherwise be carried out by a
resident worker. The Home Office’s decision
to reform the ICT route was based on a
study by the Migration Advisory Committee
(MAC), which published its report and
recommendations last October. It is expected
that some, or all, of these recommendations
will be implemented by the Home Office
when it launches the GBM route next year.
Separately, the Home Office unveiled its
‘sponsorship roadmap’, which sets out its
plans to transform the existing process for
employing foreign nationals. According to
the document, over the course of the next
few years, the Home Office plans to simplify
and streamline the sponsorship system
through a series of IT, customer service
and compliance changes. It expects the
new system to be operational by Q1 2024
when all sponsors will be transferred to the
new system. The IT transformation will be
introduced to a test group of SMEs and larger
organisations, before being rolled out to a
wider pool of sponsors between mid-2023
and Q1 2024.
Other notable changes include the
‘revitalisation’ of the Innovator route and
the introduction of an Electronic Travel
Authorisation – similar to the US’s ESTA –
and e-visas. Of course, if the past two years
have taught us anything it is that things
do not always go according to plan. And
with the world still in the grips of a global
pandemic, the Home Office will need to
remain agile in its planning for this year.
Laura Devine is the founder of immigration
law specialist Laura Devine Immigration
LAW SOCIETY GAZETTE 21 JANUARY 2022 27
I N P RACTIC E
Family law
Iwona Durlak, IMD Solicitors
Fines alone won’t ease divorce logjam
The government’s plan to fine couples who
wish to take their divorce to court does not
just highlight the family courts backlog
but also what else needs to be done to
encourage couples to embrace mediation.
Justice secretary Dominic Raab hopes
that the threat of a fine will encourage
more couples to try mediation and
therefore ease pressure on a delayed courts
system, helping to thwart parents who
use the courts to take personal revenge.
Only the most serious of family cases
– those involving domestic abuse and
safeguarding for example – will be heard in
the courts.
Law Society figures from April to June
2021 show that the number of family cases
increased by 14% to 66,357 on the same
period in 2020. Matrimonial cases and
divorce petitions were up 7%. The long
delays in the court system are having
a devastating impact on families, with
parents unable to see their children for
months while they wait for cases to be
heard, and where the split is particularly
fractious. It is clear action needs to be
taken when cases are increasing.
While we await the details of how these
proposals will work in practice, there are
other moves that the government and we
as family solicitors can take to protect
clients as well as our family court system.
Encouraging mediation
Being a Resolution-accredited lawyer
means I approach all family cases in
a constructive way, considering the
needs of the whole family and not just
the parents who are getting divorced.
Where appropriate, we try and seek the
most amicable way forward for a family
during divorce. Not all family lawyers are
members of Resolution. I think if more
lawyers adopted its Code of Practice there
may be a small shift in clients opting for
mediation.
In appropriate cases, all family lawyers
should be encouraging clients to try
mediation. The voucher scheme already
available from (and this week expanded
by) the government is a worthwhile
28
S O L I C I TO R S D I S C I P L I N A RY T R I B U N A L
incentive – providing up to £500 for
mediation costs. However mediation can
still be costly for parents – it is certainly
not a bargain option. If mediation were
made to be the default process as Raab
intends, it would only be successful if
there was further financial support made
available. Only then we would likely see a
dramatic reduction in those resorting to
court.
Education of clients and providing a
holistic service
Equally, our role as educators is just as
important in encouraging clients to take
routes out of court. There are small things
that can be done by lawyers to educate
parents on considering the impact an
acrimonious divorce case can have on
children in the long-term. Too often,
children’s needs are left out of the equation
and this needs to be recalibrated. There are
resources lawyers can utilise – the Children
and Family Court Advisory and Support
Service (Cafcass) offers helpful advice to
parents on how to navigate separation while
trying to support their children. Lawyers
can take more of a role in educating clients
about the harmful impact court cases can
have on children, but also the different
scenarios where it is appropriate. Parents
should not be penalised but educated.
Lawyers are the experts, after all.
LAW SOCIETY GAZETTE 21 JANUARY 2022
Providing holistic support – not just legal
advice – to a client may also result in a
more positive outcome for them. Lawyers
should consider building relationships
with professional referral sources, such as
therapists, and offering their support to
clients. Financial penalties will only go so
far in changing behaviour.
Advising no-fault divorce
The long-delayed no-fault divorce – due to
become law on 6 April – may also help ease
pressure on the courts. Having to cite a
ground for divorce can instigate conflict, or
remind fairly amicable separating couples
of the problems they once had, causing
them to relive these experiences and
potentially sending them in the direction
of court. Although most family lawyers will
aim not to make matters worse in a divorce
petition, the process of having to cite
grounds for divorce can make it bitter and
adversarial. One hopes the introduction
of no-fault divorce will not be pushed
back again and lawyers can start advising
clients accordingly.
Legal aid – government must recognise
its impact on the family courts
The cuts to legal aid have seen many
families, who are not legal experts, having
to represent themselves in court. This
causes huge disruption to the system,
with couples unaware or ill-equipped for
resolving their dispute without ending up
in court. The number of litigants in person
is increasing, and perhaps the government
should look at how this has contributed to
the backlog. Something needs to change.
While we await government action,
family lawyers have an important role
to play in ensuring unnecessary cases
do not end up in court. The more holistic
and educational approach lawyers can
offer, the more likely a client may consider
mediation. But financial penalties alone
will be unlikely to resolve the courts
backlog.
Iwona Durlak is partner and co-founder of
IM D Solicitors, Manchester

Sport and personal injury
Ipek Tugcu, Bolt Burdon Kemp
Brain injury in athletes – scoring legal own goals
The problem of dementia among
professional athletes has been bubbling
away for years. Recently, we have seen a
surge in medical research and litigation
claims, propelling this subject to the
forefront. This is no longer a situation
contained within individual sports, but
instead a ticking time bomb for a global
industry that entertains and provides
livelihoods for so many. So why are there
still so many issues, and how are the current
rules failing athletes?
Each sport has its own problems, but
football and rugby are regularly thrust into
the spotlight. Both sports display a high
incidence of former professionals being
diagnosed with neurodegenerative disease.
While it is accepted that conditions like
dementia and Alzheimer’s affect the general
population, these mainly occur in those 65
and above. When diagnoses are made at
much younger ages, and at such high rates
among a connected cohort of people, there is
clearly an issue.
Consider this: dementia was diagnosed
in five of the 11 who started football’s 1966
World Cup final for England, with four
players already dead. A 2019 study found
that professional footballers were over three
times more at risk of neurodegenerative
disease than the general public. At least two
coroners have linked the deaths of former
footballers, who died of neurodegenerative
disease, with the sport – the first inquest
hearing dating back to 2002 .
In rugby union, around 20 former
professional players initiated personal
injury cases against World Rugby, the
Rugby Football Union and the Welsh Rugby
Union last year. Among them are a number
of players who received diagnoses of early
onset-dementia as young as in their 40s,
meaning that within years they are likely to
decline and have substantial care needs.
Perhaps more shocking than these
statistics is that much of the above has
been known about, yet hardly anything
has been done to make sports safer and
provide assistance to those injured through
employment.
Neither football nor rugby have taken
LAW SOCIETY GAZETTE
S O L I C I TO R S D I S C I P L I N A RYIN PRACT IC E
persuasive steps to update their rules to
incorporate the damning data of brain
injury.
In football, last year saw the trial of
permanent concussion substitutes in the
Premier League, FA Cup, Women’s Super
League, Women’s Championship and
Women’s FA Cup. This sounds great, but was
actually the opposite of what most brain
injury campaigners had sought, which
was for temporary concussion substitutes
– aimed at encouraging more players to be
assessed, as it would not have triggered an
automatic exclusion for the remainder of
the game. In July 2021, the FA announced
new guidelines recommending a maximum
of 10 ‘higher force headers’ in any training
week. Again, this sounds great, as headers
during training are thought to be a culprit in
contributing to the risk of neurodegenerative
disease – but what weight do these
guidelines really hold? Will anyone actually
be monitoring or enforcing them, and is
there any penalty for ignoring them?
In comparison, rugby union has more
robust head injury protocols; however,
these are still inadequate. Head injury
campaigners want to see limits on contact
during training and changes to the tackling
techniques to mitigate the known risk of
brain injury. In response, World Rugby
announced new guidelines in September
2021 to limit full-contact training . However,
this was dampened by the admission that
the guidelines would not be mandatory.
Much like in football, what weight will these
guidelines actually hold?
A pattern has emerged of sports adopting
guidelines which seem to go to the root of
the problem, but stop short of making them
mandatory or enforceable. It is difficult not
to be cynical about what real improvements
they will make in safeguarding players and
defending sporting bodies from legal action.
It also sheds light on another problematic
area: sports have been left to self-regulate.
Self-regulation has made it easy for sports to
get away with keeping the status quo, despite
rising concerns and mounting evidence of
likely preventable injuries.
Until there is proper regulation, to update
21 JANUARY 2022
TRIBUNAL
the inadequate protocols and impose and
govern those rules, change will likely happen
slowly, if at all. The reality is that this comes
at the expense of the newer generation, who
will either be put off pursuing their chosen
career or risk suffering preventable injuries,
as well as sports in general, which should be
concerned about leaving themselves wide
open for an own-goal in legal action against
them.
Sadly, the above has left athletes following
in the steps of their NFL counterparts and
heading for litigation. For many, this is
likely to have been their last recourse and as
a direct need for money to meet the needs
of their injuries. While there has been an
ongoing campaign to have dementia listed
as an industrial disease in football, thus
allowing better access to funds, this has
not happened. In fact, no such similar ‘no
fault’ scheme exists in any other sport.
Many athletes I have spoken to are angry
and disappointed at their former employers’
total disregard in providing financial after-
care for their injuries and in adapting the
game to prevent future injuries.
Litigation is never easy, and these claims
will not be straightforward for either side.
Aside from having to prove that existing
protocols breached a duty of care and linking
injuries to breaches of duty as opposed to
those that would have occurred in any event,
question marks remain over identifying who
the relevant defendants are (especially where
players played in several teams), limitation
and consent. I wonder how many athletes
would have undertaken litigation had their
former employees taken their concerns
seriously and sought to improve safety in
the sport, or had there been an alternative
option open to them for funding.
It is a dire time for sport when fans in the
stands receive better medical attention
than athletes who spend years risking their
health. You only have to look to the $765m
settlement that the NFL paid to know that
this is not a problem to ignore. Change is
overdue.
Ipek Tugcu is senior associate in the brain
injury team at Bolt Burdon Kemp
29
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I N P RACTIC E
Financial regulation
Kate Gee and Alasdair Marshall, Signature Litigation
Cryptoassets: will the watchdogs bark or bite?
Last November, the Federal Deposit
Insurance Corporation, the Board of
Governors of the Federal Reserve System
(FRB), and the Office of the Comptroller of
the Currency (OCC) (the ‘agencies’) issued
a ‘Joint Statement on Crypto-Asset Policy
Sprint Initiative and Next Steps’.
The joint statement is the culmination of
recent interagency policy sprints focused
on cryptoassets, in which the agencies
concluded that ‘public clarity’ (that is,
regulation) is warranted in a number
of areas. The joint statement sets out a
roadmap of planned work for 2022, with
a particular focus on providing ‘greater
clarity on whether certain activities related
to cryptoassets conducted by banking
organisations are legally permissible, and
expectations for safety and soundness,
consumer protection, and compliance
with existing laws and regulations’. These
activities include:
(a) Cryptoasset safekeeping and traditional
custody services, including exchanging
cryptoassets and fiat currency, and
transaction settlement;
(b) Ancillary custody services, including
staking and facilitating cryptoasset lending;
(c) Facilitation of customer purchases and
sales of cryptoassets;
(d) Loans collateralised by cryptoassets;
(e) Issuance and distribution of stablecoins
(which are digital assets designed to
maintain a stable value relative to a
reference asset such as a national currency);
(f) Activities involving the holding of
cryptoassets on balance sheets; and
(g) The application of bank capital and
liquidity standards to cryptoassets.
When will the regulation be implemented,
and how severe will it be?
Timing
US regulators have been vocal about the
need for crypto-regulation for a while.
One prominent advocate is Gary Gensler,
the one-time blockchain lecturer who is
now chair of the Securities and Exchange
Commission, who has repeatedly called for
regulation. The agencies, by comparison,
have been slow to join in, and it remains
32
to be seen whether the joint statement
will translate into concrete steps towards
regulation this year. Notably, the joint
statement lacks any timeframe for the
agencies to issue their guidance, nor
does it indicate whether any preliminary
analyses have been conducted in relation
to the identified crypto-activities. We
may, therefore, see a series of further
announcements before tangible regulation
is put forward.
Severity
The joint statement does not indicate how
strict the agencies’ regulation will be.
By contrast with China’s zero-tolerance
approach to crypto, which saw the country
declare all crypto-currency transactions
to be illegal in September 2021, the US has
generally adopted more balanced rhetoric
towards cryptoassets, and even recently
approved a bitcoin-linked exchange-
traded fund. Furthering this trend, in
anticipation of the joint statement, acting
head of the OCC Michael J. Hsu said last
November: ‘To the extent the OCC’s prior
communications have been interpreted
as tacit encouragement to engage in
crypto-activities, the forthcoming releases
will clarify that safety and soundness
is paramount. The releases should not
be interpreted as a green light or a solid
red light, but rather as reflective of a
disciplined, deliberative, and diligent
approach to a novel and risky area. We will
proceed carefully and cautiously and will
hold banks to the same.’
The joint statement reflects this stance,
referring to the ‘potential opportunities’ as
well as ‘risks’ posed by cryptoassets.
Scope
The joint statement refers to regulation
of cryptoasset activities carried out
by ‘banking organisations’. However,
innovation and diversity within the
crypto-space is such that not all relevant
entities fall neatly within a traditional
interpretation of ‘banking regulations’. By
way of example:
● Stablecoin issuers act as quasi-banks,
LAW SOCIETY GAZETTE 21 JANUARY 2022
issuing their stablecoins to customers in
return for fiat deposits. Interestingly, Circle
(which issues USDC, the second largest
stablecoin) has announced its intention to
become a registered bank, while Facebook
has partnered with Silvergate Capital to
issue Diem. However, other stablecoin
issuers, such as Tether Limited (which
issues Tether, the largest stablecoin),
remain in no man’s land. At present, it is
unclear how the agencies could impose
regulations on Tether Limited and others
without distorting the definition of ‘banking
organisations’, and potentially overstepping
– or stretching – their authority.
● The joint statement made clear an intent
to regulate ‘ancillary custody services’,
including ‘facilitating cryptoasset lending’.
However, specialised platforms which
enable crypto-holders to earn interest by
lending crypto-currencies do not naturally
fall within the traditional concept of
‘banking organisations’.
This, then, is perhaps the trickiest issue
facing the agencies: developing intra vires
regulation that (1) covers all of the crypto-
activities considered to be in need of
‘clarity’; and (2) covers all of the entities that
carry out those activities. Both categories
appear to be broad, and to achieve this goal
in a coherent way, the agencies will likely
have to rely on other US regulatory bodies,
such as the SEC, to avoid overstepping their
bounds.
What is the anticipated impact on the
crypto-market?
The joint statement had little to no
immediate impact on crypto-currency
prices, particularly in comparison to
China’s crypto ban which caused bitcoin
to drop by more than $2,000. This is likely
because the joint statement only signals
future regulation, with little indication
of the implementation date, severity or
scope. However, a major drop ensued in the
weeks following its publication, as bitcoin
crashed from all-time-high prices of above
$65,000 down to below $50,000. This more
significant drop is thought to have been
a reaction to the emergence of the new
 I N P RACT IC E / S DT

Covid variant, Omicron – and the size of the
drop perhaps underlines precisely why the
agencies believe ‘clarity’ is required.
With China having a adopted a zero-
tolerance approach, and El Salvador going
the other way by adopting bitcoin as legal
tender, the stage is set (and waiting) for a
nation to develop a balanced regulatory
framework which looks to benefit from
the opportunities of cryptoassets, while
protecting its citizens from risks like the
freefalling crashes seen regularly on the
trading charts.
This signal of intent by the US to regulate
cryptoassets puts pressure on other
nations to expedite their own cryptoasset
regulation, for fear of falling behind. For
instance, the Financial Conduct Authority
in the UK does not yet regulate cryptoassets,
and only requires exchanges to be registered
to operate. However, it has demonstrated its
willingness to act strongly when required
(for example, by banning Binance in June
2021) and has called for further regulation to
protect consumers.
Meanwhile, the EU has proposed a
dedicated regime for cryptoasset providers
with its ‘MiCA’ regulation, under which only
licensed providers will be able to conduct
crypto-related activities, but could do so
in any member state. It remains to be seen
whether these and other measures will be
expedited by the joint statement.
The joint statement is an implicit
recognition by the agencies that
cryptoassets are gaining a mainstream
presence. As cryptoassets become more
popular, the upward trend of litigation
involving digital assets will continue –
whether they feature at the centre of the
dispute or, for example, as the focus of an
enforcement or asset-tracing action.
At the same time, we anticipate that
an increased focus on regulation and
compliance will generate a corresponding
increase in investigations and related
disputes on – given the nature of the assets –
a truly global level.
Kate Gee is counsel and Alasdair Marshall an
associate at Signature Litigation

Decisions Decisions filed recently with the Law Society

(which may be subject to appeal)

Zahid Khan
Application 12210-2021
Admitted 2006
Hearing 27 October 2021
Reasons 12 November 2021
The SDT ordered that the
respondent should be struck off
the roll.
While in practice at Janson
Solicitors, Birmingham, the
respondent had misused
and/or failed to protect client
money, thereby breaching
rules 1.2 (a), 1.2(b), 1.2(c) and
20 of the SRA Accounts Rules
2011, and principles 2, 4, 6, 8
and 10 of the SRA Principles
2011. The respondent had acted
dishonestly.
The respondent had failed
fully to cooperate with the
SRA, thereby failing to achieve
outcome 10.6 of the SRA Code
of Conduct 2011, and breaching
principles 2, 6 and 7 of the 2011
Principles, paragraphs 7.3 and
7.4 of the SRA Code 2019, and
principles 2 and 5 of the SRA
Principles 2019.
The motivation for the
respondent’s misconduct was a
misguided attempt to deal with
and respond to the financial
difficulties faced by the firm.
In some cases, the delay
caused to planned house
purchases meant that clients
had to pay additional rent in the
interim and had been caused
very substantial inconvenience
and avoidable anxiety. The
impact of delays in themselves
was significant as were the lost
opportunities of transactions
which did not proceed. The
system of conveyancing relied
upon solicitors being trusted
to hold deposits and to protect
client money scrupulously.
The reputational harm to the
profession of a solicitor failing
to protect and misusing client
money was something which
would have been obvious to the
respondent.
The misconduct found proved
was aggravated by the fact
that the allegations included
dishonest conduct.
The findings against the
respondent, including
dishonesty, required that the
appropriate sanction was to
strike him from the roll.
The respondent was ordered to
pay costs of £35,469.
Joseph Gary Eloket
Application 12238-2021
Hearing 9 November 2021
Reasons 18 November 2021
The SDT granted the
applicant’s application for the
determination of the indefinite
suspension imposed on him on
12 October 2011, for abandoning
his practice while practising
on his own account. The SDT
further ordered that he should
be subject to the following
conditions: that he might not (i)
practise as a sole practitioner
or sole manager or sole owner
of an authorised or recognised
body; (ii) be a partner or
member of a limited liability
partnership, legal disciplinary
practice or alternative business
structure or other authorised
or recognised body; (iii) be a
compliance officer for legal
practice or a compliance officer
for finance and administration;
(iv) hold client money; or (v) be a
signatory on any client account,
with liberty to apply.
The SDT was impressed by
the significant progress the
applicant had made since
the suspension had been
imposed. It was satisfied
that he had reintegrated into
legal professional life in an
appropriate manner. He had
demonstrated good judgement
in the timing of his applications
both to the Solicitors Regulation
Authority and to the SDT.
He had provided strong
evidence of his reformation of
character and the good work
he had undertaken during his
suspension. The SDT had taken
into account the testimonials
supplied on the applicant’s
behalf and noted that there had
been no public objection to the
termination of the suspension
and that such a termination was
supported by the SRA.
The SDT was satisfied that
termination of the indefinite
suspension would not
undermine the profession in the
eyes of public, but that indefinite
restrictions should be imposed.
The applicant would be at liberty
to return to the SDT to vary
or remove the restrictions. In
order to do so, he would need
to demonstrate what actions he
had taken to negate the risk he
posed.
The applicant was ordered to
pay costs of £1,000.
John Pursley
Application 12239-2021
Admitted 1976
Hearing 2 November 2021
Reasons 11 November 2021
The SDT ordered that
respondent should be struck off
the roll.
While practising as a solicitor
at TWM Solicitors LLP, on
or about 29 March 2016, the
respondent had created (or
caused the creation of) a
compliments slip, from which
the date had been deliberately
removed, thereby breaching
Continued on p34

LAW SOCIETY GAZETTE 21 JANUARY 2022 33

S O L I C I TO R S D I S C I P L I N A RY T R I B U N A L
Decisions and interventions
principles 2 and 6 of the SRA
Principles 2011.
On or about the same date,
under cover of the compliments
slip, he had lodged an
application purporting to be
dated 18 March 2016 with the
First Tier Property Tribunal,
thereby breaching principles 2
and 6.
On or about 4 April 2016, he
had created (or caused the
creation of) a letter, backdated
to 18 March 2016, which falsely
and misleadingly purported
to suggest that the application
had been submitted to the
tribunal on that earlier date (and
therefore on time), when in fact it
had not been. In doing so, he had
breached principles 2 and 6.
On or about 26 April 2016
he had made, and thereafter
lodged (or caused to be lodged)
with the tribunal, a witness
statement which had falsely
and misleadingly purported
to evidence all or any of the
following: (i) that the application
had been submitted to the
tribunal on 18 March 2016 (and
therefore on time), when in
fact it had not been; (ii) that the
covering letter had been created
and printed on 18 March 2016,
when in fact it had not been; (iii)
that a manuscript note recording
the application’s despatch to
the tribunal had been made and
logged on 18 March 2016, when
in fact the application had not
been despatched on that date,
thereby breaching principles 1, 2
and 6. The respondent had acted
dishonestly.
On dates between
approximately 29 March and 10
June 2016 he had provided false
and misleading information to
any or all of the following, in
relation to the date on which
the application had been lodged
with the tribunal: (i) his clients;
(ii) his clients’ agent; (iii) the
firm and its employees; (iv)
counsel instructed by him; (v)
the tribunal and its staff; and
(vi) the Document Exchange,
thereby breaching principles 1,
2, 4, 5 and 6. The respondent had
34
acted dishonestly.
The parties had invited the
SDT to deal with the allegations
against the respondent in
accordance with a statement of
agreed facts and outcome.
It was a sad case but the
misconduct was nevertheless at
the highest end of seriousness.
No exceptional circumstances
had been submitted or
identified. The only appropriate
sanction was that the respondent
be struck off the roll.
The respondent was ordered to
pay costs of £10,428.
Geoffrey Rushton
Application 12219-2021
Admitted 2006
Hearing 2 November 2021
Reasons 16 November 2021
The SDT ordered that the
respondent should be struck off
the roll.
While in practice as a partner
at Rushton Legal Services Ltd,
the respondent had failed to hold
client money in a client account
and had improperly benefited
from holding client money in the
firm’s business current account
by virtue of the following: (i) the
discharge of a negative balance
in the sum of £2,219.88 on the
firm’s business current account;
(ii) the payment of the firm’s
office overheads in the sum of
£230.99, thereby breaching rules
1.2 (a), (b) and (c) and 14.1 of the
SRA Accounts Rules 2011, and
principles 2, 6 and 10 of the SRA
Principles 2011. The respondent
had acted dishonestly.
He had made improper
withdrawals totalling £27,000
from the firm’s business
current account which he used
for his own benefit, thereby
breaching principles 2, 6 and
10, and rules 7, 14.3, 17.2 and
20.1. The respondent had acted
dishonestly.
He had sent a breakdown of
charges to client A totalling
LAW SOCIETY GAZETTE
Decisions filed recently with the Law
Society (which may be subject to appeal)
£3,305.13 which was misleading
as it included a cost of £1,875.13
with the narrative ‘Bank Interest
for deposit and transfer @5%
on £37,502.73’ when he had not
incurred such cost, thereby
breaching principles 2, 6 and
10. The respondent had acted
dishonestly.
He had failed to ensure that
a power of attorney for client A
was properly executed in that
he failed to attest the signature
of client A while in his presence,
thereby breaching principles
2, 4, 5 and 6, and failing to
achieve outcomes 1.2 and 1.5
of the SRA Code of Conduct
2011. The respondent had acted
dishonestly.
He had sent letters to client
A which were misleading
and intended to mislead, in
breach of principles 2 and 6.
The respondent had acted
dishonestly.
He had failed to cooperate with
his regulator, the SRA, by failing
to respond fully to production
notices issued by the SRA, under
section 44B of the Solicitors
Act 1974 (as amended), thereby
breaching principle 7, and failing
to achieve outcomes 10.6, 10.8
and 10.9.
The respondent had a very
high level of culpability. There
had been significant harm to the
client, who was incarcerated.
The respondent’s dishonesty
was a serious aggravating
feature. The misconduct was
at the highest level and the
only appropriate sanction
was a strike-off. There were no
exceptional circumstances and
the SDT therefore ordered that
the respondent be struck off.
The respondent was ordered to
pay costs of £21,827.
Cardinal Solicitors Ltd
On 24 December 2021, the
Solicitors Regulation Authority
intervened into the practice of
Muhammad Tariq at Cardinal
Solicitors Ltd and into the
recognised body, Cardinal
Solicitors Ltd of Rear of 38
21 JANUARY 2022
London Road, Cobblestone
Place, Croydon CR0 2TA.
The grounds of intervention
into the practice of Tariq were:
● There was reason to suspect
dishonesty on his part in
connection with his practice as
a solicitor – paragraph 1(1)(a)(i)
Schedule 1, Part I, Solicitors Act
1974.
The grounds for intervention
into Cardinal Solicitors Ltd
were:
● There was reason to suspect
dishonesty on the part of Tariq,
as a manager of the firm, in
connection with the firm’s
business – paragraph 32(1)(d)(i)
Schedule 2, Administration of
Justice Act 1985.
Emma Porter of Shakespeare
Martineau LLP, SHMA SRA
Interventions, PO Box 18228,
Birmingham B2 2HX; tel: 0300
247 2470; email: interventions@
shma.co.uk has been appointed
as the Society’s agent.
Tariq’s practising certificate
has been suspended by reason
of the intervention.
Roger Dean & Co
On 7 January 2022, the
Adjudication Panel resolved
to intervene into the above-
named sole practice of Brian
Nigel Sarney, at 134a Main Road,
Biggin Hill, Westerham TN16
3BA, and at 423-425 Crofton
Road, Orpington, Kent BR6 8NL.
The grounds of intervention
were: there was reason to suspect
dishonesty on the part of Sarney
in connection with his practice
at the firm; and Sarney had failed
to comply with the rules made
under sections 31 and 32 of the
Solicitors Act 1974 (as amended).
The firm practised under the
style of McNair Wilson Innes &
Co at the Orpington office.
Michael Veal of Lester Aldridge
LLP, Russell House, Oxford Road,
Bournemouth BH8 8EX; tel: 01202
786341; email: Intervention.
Enquiries@LA-Law.com has been
appointed to act as the Society’s
agent. The first date of attendance
was 12 January 2022.

Handy navigation tool on the realities of forfeiture
Forfeiture of Leases
Peter Petts and Jamal Demachkie
£110, The Law Society
ÌÌÌÌÌ
ÌÌÌÌÌ
In the foreword to this book, by Mr
Justice Morgan, there is a useful
potted history of the development
of the law in this area and previous
attempts at reform.
Chapter 1 is a helpful gallop
through the nature of forfeiture,
reminding the reader of
commercial and practical realities
that a landlord will be bearing
in mind. It also touches upon
potential alternative remedies.
Chapter 2 covers the right to
forfeit. There is a reminder of the
distinction between conditions
and warranties in general
contracts and an explanation of
their status in relation to a lease
and the right to forfeit.
This chapter goes on to deal
efficiently with both express rights
of re-entry and those cases where
there is no express right and
instead the landlord relies upon
breach of an express or implied
condition of the lease. There is
an analysis of who can or cannot
forfeit, including commentary on
Be a better manager
Leading Lawyers: A practical
toolkit to help you adjust
your leadership style and
deliver great results
Sally Sanderson
£19.99, Practical Inspiration
Publishing
ÌÌÌÌÌ
ÌÌÌÌÌ
Leadership skills – showing
vision, bringing out the best in
people and motivating them – are
essential whether you are working
for a huge commercial firm or in a
high street practice.
In Leading Lawyers, Sally
Sanderson draws on many years’
experience advising different types
of law firms.
Sanderson provides some
helpful pointers and advice on
different styles and approaches
to leadership, while focusing on
an intriguing niche point regarding
a tenant’s potential determination
of a lease in response to a
landlord’s repudiatory breach.
Chapter 3 deals with the concept
of breach, covering non-payment
of rent as well as several other
covenants.
Chapter 4 takes us through the
potential limitations on the exercise
of the right to forfeit, including a
good concise explanation of the
Section 146 notice procedure.
Other limitations on the right to
forfeit, especially in the context of
residential leases, are discussed in
chapter 5.
Tenant insolvency and its status
either as a trigger for forfeiting a
lease or separately as a fetter on
the right to do so are covered in
chapter 6.
Waiver is always a complicated
animal. The anecdotal extract
taken from a 1967 case at the
start of chapter 7 acknowledges
this, deploying the very apt
phrase of ‘minefield’. This chapter
also includes some very useful
information and day-to-day
examples.
Chapter 8 tells the reader
how to forfeit in actual physical
terms and also includes some
how the ‘ABCDE’
methodology –
Achieve,
Benefits, Clarify,
Difficulties
and Evaluate
– can improve
leadership skills.
It is probably
true that solicitors are not always
perfect at managing colleagues,
and they do not always value
non-lawyers, so, as a profession,
we need guidance and training in
this area.
While Leading Lawyers is written
for everyone, newly appointed
partners or associates in larger
firms will likely benefit the most
from it.
David Pickup is a partner at
Pickup & Scott Solicitors,
Aylesbury
LAW SOCIETY GAZETTE
relevant analysis of applicable
court rules and processes, and a
good summary of the position in
relation to costs.
The concept and practicalities
of relief from forfeiture are well
laid out in chapters 9 to 11, with
chapter 10 particularly focusing
on rent arrears. Chapter 11 covers
third parties, especially sub-
tenants and mortgagees whose
standing will also be affected by
any forfeiture of the main lease.
Finally, chapter 12 rounds up
the post-forfeiture considerations
relating to the title, tenant’s
belongings and dealings with the
reversion, while chapter 13 builds
Accomplished crime debut
A Death in Custody
T.S. Clayton
£9.99, Matador
ÌÌÌÌÌ
Set in Brixton, south London in
the 1990s, A Death in Custody
tells the tale of Delroy Brown, a
young black man who dies in police
custody and the impact Brown’s
demise has on his family and others
involved. A police investigation into
the death does not reveal much;
unsurprisingly as there is only a
single witness, or so they think. So
it is during the subsequent inquest
where events take unexpected
turns, as the reason Brown died is
revealed while others try to stop
the truth getting out, leading to a
dramatic conclusion.
The heroes and heroines of this
novel are a young solicitor, a local
21 JANUARY 2022
R EVIE WSR E V IE WS
upon the concepts discussed in
the foreword and the potential
avenues for reform of the law.
I found this book to be a clear
and concise guide which I will
certainly turn to when dealing
with relevant client enquiries in
practice.
The authors have succeeded
in putting together a resource
which intuitively answers a
number of practice points which
a practitioner will want to be able
to check, both at the outset and
during the progression of a case.
Jenny Kemp is an associate at WBW
LLP, Newton Abbot
journalist and a youth worker. They
are people you can believe in, while
the other leading players from the
police and CPS are all dealt with
respectfully and sympathetically.
It is easy to forget that this book
is set in the 1990s, and that how
death in custody investigations are
handled has changed a lot.
This is a thriller for lawyers,
featuring the sort of jaded, fallible
characters we sometimes meet
within the legal system. TS Clayton –
a retired criminal solicitor – has a
knack for creating vivid, believable
characters in just a few lines, and
is just as skilled at bringing court
hearings to life. Making a cross-
examination believable and realistic
in a novel isn’t as straightforward as
you’d think, all of which makes his
debut novel highly recommended.
David Pickup
35
IN PERSON
A CAREER IN CRISES
As part of my undergraduate degree
(politics and economics), I had to do a law
module which I did reasonably well and
thoroughly enjoyed. Following university I
spent a year travelling, and my first job after
returning was in sales for corporate sports
hospitality. This was conducted over the
phone and really helped develop negotiation,
persuasion and presentation skills. While being
a lot of fun, the commission-based nature of it
made me question whether longer term it was
the right place for me.
I concluded that by marrying law and sales I
could become a successful lawyer. I enrolled
at BPP for the GDL (law conversion) and studied
in the evening while continuing to work full-time,
and the rest as they say is history.
Working full-time and studying in the
evening can be time-consuming, so after
the GDL I ceased work and focused on
the LPC for a year. I struggled to obtain a
training contract, and with hindsight I think my
experience in sales helped me to persevere.
I joined a City firm as a paralegal. I obtained
a training contract with the same firm which
commenced in 2009, in the middle of the
global financial crisis. This was a very fraught
time for the firm and clients, but it did provide
invaluable experience of both contentious and
non-contentious work.
There were many aspects to contentious
work that I found interesting from both a
litigation and insolvency perspective. Even
now, I am sometimes required to lean on that
experience. However, I found the relentless day
in, day out confrontational nature of contentious
work not to my liking. Transactional work, on
the other hand, with its collaborative nature,
and the general working towards a common goal
was much more rewarding. This was the path I
wanted to pursue.
36
John O’Donovan, Harold Benjamin
After seven years in private practice,
I thought it was time for a change, so
began looking for another opportunity
to progress my development and career.
I was offered a newly created in-house role. It
appealed as it was sitting within the business
and separate from the main legal function.
While private practice can be hierarchical, this
role required much more collaboration and
the ability to engage with a variety of other
departments and stakeholders on a daily basis
There were
many aspects to
contentious work that
I found interesting
from both a litigation
and insolvency
perspective
in order to be effective. In-house you are
part of the legal services supply chain to the
business. While providing proactive commercial
advice is a given, it needs to be done efficiently
and cost-effectively.
Career progression in-house is not without
its challenges – the main one being there
is not always a clear structured path. This
means sometimes there are not that many
roles available for progression. It is important
to identify your motivation, whether it be type
of work, remuneration, responsibility and so
on, and then structure a plan to achieve it. The
LAW SOCIETY GAZETTE 21 JANUARY 2022
other benefit of being in-house is that outside
legal there maybe something else that appeals.
After nearly nine years in-house, it felt like
the right time for a new challenge. Harold
Benjamin has ambitious plans and it felt like
somewhere I could use my skills and experience
to build the banking and finance team.
The pandemic has had a fundamental
impact on the way we all work on a day-
to-day basis. Working remotely and/or flexibly
had long been a hot discussion point, but the
pandemic made it something that had to be
implemented and effective almost immediately.
This has allowed some efficiencies, such as
electronic signing, reduction in commuting times
and unnecessary meetings. There are though
still challenges to be worked through, such as the
best way to maintain and develop relationships
with clients. As well as ensuring collaboration
within our teams and particularly for junior
lawyers, there is also the issue of effective
supervision and support.
I was once told to never waste a good
crisis. Understandably times of crisis can seem
particularly challenging, uncertain and anxious.
At these points, it is important to accept where
you are and set out the steps that need to be
taken to get through the situation, even if they
are small steps taken one at a time. Having
worked through the global financial crisis, and
now the pandemic, there have been plenty of
lessons and experiences which I have learnt
from. I would encourage all lawyers starting
out to absorb as much as they can during these
times and take every opportunity to get involved
with different types of work to broaden their
experience and skills.
John O’Donovan is partner and head of
banking and finance at Harold Benjamin,
London
020 8049 4000 jobs.lawgazette.co.uk
SOUTH WEST
BRISTOL, CORNWALL, DEVON, DORSET,
GLOUCESTERSHIRE, ISLES OF SCILLY,
SOMERSET, WILTSHIRE
Collard & Co
PRIVATE CLIENT SOLICITOR
for Probate Wills and Trust role
Experienced 3 years PQE private
client solicitor required to work for
our long established, successful and
busy high street Practice.
Duties to include all aspects of
private client work including advising
on, and drafting wills, trusts, probate
and letters of administration
applications, administering estate,
powers of attorney and Court of
Protection work.
We are looking for a candidate
with the drive to progress into a
management position with such
opportunities arising in
the next 2 years’.
Opportunities to diversify into
other areas of law practised
by the firm will be available.
This is a full time position and would
suit applications from applicants
seeking to enhance their career into
management level.
Please send CV to
Jacqui@candrlegal.co.uk
ADMINISTRATION OF ESTATES
LONDON
CITY OF LONDON, LONDON BOROUGHS
LITIGATION SOLICITOR up to 2
years' PQE required to assist Principal
in busy established practice in Mill
Hill, NW London in interesting areas
of Property Dispute Resolution and
Civil Litigation. Solicitor with Litigation
experience needed. Apply to Saul
Marine saul@saulmarine.com
WEST MIDLANDS
HEREFORDSHIRE, SHROPSHIRE,
STAFFORDSHIRE, WARWICKSHIRE, WEST
MIDLANDS, WORCESTERSHIRE
BLACK COUNTRY successful law
firm seeks Criminal Duty Solicitor with
Higher Rights. Our cases make national
news. Require Senior Solicitor with
experience of serious crime cases.
Willing to undertake police station
attendances out of office hours. Team
player with supervisory experience.
Entrepreneurial spirit desirable.
Minimum 3 years' PQE. Excellent
Prospects. £35-45K salary plus pension
and bonus. Immediate start. Email
production@lawsociety.org.uk with
CV & cover letter quoting PO Box
Number 0701/01.
TO ADVERTISE HERE PLEASE
CONTACT THE SALES TEAM ON
020 8049 4000.
LAW SOCIETY GAZETTE
J OB S
JOHN WELCH & STAMMERS
SOLICITORS
Senior Domestic/Commercial Conveyancer with
prospects of partnership required for a busy long established,
high street practice in Witney, Oxfordshire.
The Role
This is a permanent, full time position.
The ideal candidate will have at least 10 years’ + PQE and be
looking for a long-term position with prospects of partnership.
We have a very diverse client base and as such the candidate
will need to have a professional pro-active approach
to working as well as excellent client care skills and an
understanding of individual client’s needs.
This is a senior role and the successful candidate will be
required to advise other fee earners in the conveyancing
department when necessary and maintain a professional
attitude and effective communication between fee earners,
team members and all colleagues.
Thorough knowledge of all compliance issues is a must to
include SDLT and AML.
We offer a negotiable salary package with partnership
prospects and the opportunity to work within a supportive team
environment within our one office, located in a wonderful
position in a market town.
All applications should be made in writing with a full CV
and emailed to our managing partner Berni Summers at
bsummers@johnwelchandstammers.co.uk
21 JANUARY 2022 37