Parties judged to have unreasonably dismissed mediation as an option for out of court settlement risk being hit with indemnity costs, Matthew Smith, costs barrister at Kings Chambers, has warned.

The warning comes after Mirror Group Newspapers was last week forced to pay indemnity costs to claimants when Senior Costs Judge, Master Gordon-Saker, ruled it had unreasonably failed to discuss the possibility of mediation.

Mediation, often known as Alternative Dispute Resolution, is a process where a third party mediator, typically a barrister, helps parties settle disputes out of court.

The process has experienced growing support over recent months, with many judges now actively encouraging its use.

The case of Various Claimants vs Mirror Group Newspapers is the latest high-profile case where indemnity costs have been awarded on this basis.

Speaking about the risks of refusing to discuss the possibility of mediation, Mr Smith said: “In his judgement Master Gordon-Saker has reiterated the importance of Alternative Dispute Resolution and the possible consequences for litigants who fail appropriately to try to resolve their disputes outside the courtroom.

“The claimants were entitled to their costs. They successfully argued that those costs should be allowed on the indemnity basis because the defendant, Mirror Group Newspapers, had failed to respond to a suggestion of mediation.”

Indemnity costs were awarded despite the defendant having offered, and the claimant having accepted, over £2 million in settlement of the base costs in the common costs bill and costs on the standard basis for that part of the assessment.

In his judgement, Master Gordon-Saker said: “I have no hesitation in concluding that the defendant has behaved unreasonably in failing to engage in the process of discussing at least the possibility of alternative dispute resolution, and mediation in particular, and given that the common costs base costs have been agreed, it seems to me that there was no reason for pessimism as to the outcome of any mediation.

“It seems to me, therefore, that the defendant’s conduct is unreasonable to a high degree and is such as to justify an award of costs on the indemnity basis.”

The ruling provides another very strong signal that judges are willing to penalise parties judged to have unreasonably declined to discuss the prospect of mediation and may lead to an increase in the number of cases settled out of court through the process.

Mr Smith added: “Mediation is a process which has been looked upon increasingly favourably by judges, a development that has led to an increase in the demand for specialists in this area.

“This ruling is proof that judges will take action where they believe that it has been unreasonably dismissed as an option, and is likely to make parties think twice before dismissing mediation out of hand.

“They know that if they do, they may find themselves landed with substantial costs, so we can expect the option of mediation to be considered very seriously in light of this ruling.”

(Source: Kings Chambers)

The potential consequences of working in heavy industry are not always the obvious personal injury and health & safety matters, but can also include conditions, such as that which our next expert witness deals with in the majority of his cases.

Here, Jack Lancer, an expert witness in ear, nose and throat surgery, talks to Lawyer Monthly about noise-induced hearing loss, the process of performing his medico-legal duties surrounding this condition, and the challenges he encounters in bringing these cases to a successful conclusion.

Jack has been a consultant ENT surgeon for over 25 years, working in Rotherham and Doncaster. He retired from the NHS in 2013 and now works in private practice and medico-legal practice. Jack’s further special interests are in rhinoplasty and otology.

What are the most common cases you deal with in regards to ear, nose & throat surgery instructions?

I deal with all ear, nose and throat related problems, but the overwhelming cases I deal with are related to noise-induced hearing loss. That forms over 90% of all ENT medico-legal work, and has been going on for over 25 years now. Anybody who has worked in a noisy industry, and thinks that may suffer from hearing loss as a result of that, makes a claim and begins the process thereon.
Cases are screened out by a solicitor, and take all the necessary details regarding ear protection for example. From the moment they realise they may be suffering from noise-induced hearing loss, clients have three years to make a claim, and if they don’t and are out of the limitation period, the case can’t go forward.

For the cases that do progress, an expert opinion will be required. As an expert I will carry out an interview, including the noting of work and activity history, and perform an examination with an audiologist carrying out a hearing test. Once that information has been compiled I review the medical records and prepare a review for the case, the conclusion of which gives a formulaic opinion on whether, based on the information given and from the examination, there is noise-induced hearing loss or not. The solicitor will then, if the report is favourable, take action alongside the client.

This process can take anywhere between six to 12 months before the case even comes to me with all the necessary information. Following my report, the timing until settlement of a case could be a further year, totalling up to two years for the entire case. Some slower cases could even take up to four years.

How difficult is it to produce a thorough analysis of a claim?

Before 2000, it was generally easier for cases to be successful. After this year, Professor Coles produced national guidelines that the court now relies on heavily. Since those guidelines, cases have been much more challenging to get through.

The thing about noise-induced hearing loss is that there isn’t a straight forward medical test like there is with for example with potential glandular fever, where a simple blood test would provide a conclusive decision as to whether a patient has the condition. The decision as to whether one has noise-induced hearing loss rests on the balance of probability, and having followed the process of review explained above, experts may offer differing opinions, because it can’t be proved, even at post-mortem.

As an expert witness in rhinoplasty and ear surgery, to what extent do you get to engage the full capacity of your expertise?

I also engage as an expert witness in medical-negligence and personal injury cases (the other 10% of my work). This involves clients who have been involved in accidents, who have had operations that have gone wrong, or who aren’t happy with the outcome, or ran into risks they were not informed of prior to the surgery. Having myself performed around 2500 ear operations and 2000 rhinoplasties, I am in a strong position to provide expert opinion on these matters.

Are there any UK medico-legal regulations that particularly challenge your expert witness work in this segment?

As is the norm in legislative development, courts pass judgements and said judgements are then used in subsequent cases. In a previous case in this sector, the judge established that having suffered from a hearing impairment as a result of one’s job, any reasonable man would have immediately sought advice from a doctor regarding the hearing loss, and followed through with a diagnosis. But in reality, many people who work in heavy industries and noisy environments as such, don’t go to their GP; they don’t want to take time off work, are afraid they could lose their job, and many would not go to a doctor even if they were at the point of dying. Many claimants, experts and solicitors now feel that this judgement went too far; as it expects that anyone with hearing loss would automatically visit their doctor straight away.

Lawyer Monthly speaks with Linky Trott, Partner at Edwin Coe LLP, who clarifies some uncertainties surrounding the UK’s recent holiday pay changes, and discusses the employment complexities involved in the use of social media. Linky also offers her expert advice on businesses needing guidance on this matter.
Following recent changes to holiday pay laws, what do you think are the main challenges that have yet to be answered? How do you think those challenges should be addressed?

There’s no doubt that there have been some seismic changes on the question of holiday pay over the last 24 months or so, and it’s not over yet. The issue sounds simple enough, how do you calculate how much you should pay an employee when they are on holiday? But of course, it’s never that straight forward and confusion and uncertainty remains following a series of cases on the point concerning commission payments, overtime and other allowances that an employer may pay its staff that were not usually paid during a holiday period.

What has always been clear is that where an employee works guaranteed overtime each week, any holiday pay should include a payment that represents basic weekly salary plus the loss of the guaranteed overtime. It is now also clear that this applies equally to nonmandatory overtime (which is where an employee is not guaranteed overtime each week but if they are requested by the employer to do overtime, they are required to do it) where it is part of their ‘normal remuneration’.
Likewise, it is clear that holiday pay should include a sum to represent commission that the employee would have earned had they not been on holiday, and other payments made which are ‘intrinsically linked’ to the performance of the role, such as a pilots flying allowances.

However, that is the end of the certainty. What remains uncertain and therefore challenging for employment lawyers and employers and employees alike is: should holiday pay include lost voluntary overtime? Should it include annual bonuses?

How regularly does such overtime have to be paid for it to be part of ‘normal remuneration’? How do you calculate ‘lost commission’ or overtime and over what period? What about seasonal fluctuations in activity where overtime may be greater in one particular part of the year; does a higher holiday pay taken during a period of high overtime represent a windfall for that employee, which was not intended? Does all of this only apply to the 4 weeks annual leave under the Working Time Directive (Euro Leave), or also to the 1.6 weeks of additional leave granted to UK workers by the Working Time Regulations 1998? If it’s just Euro Leave, which bits of holiday taken by an employee are the Euro Leave (the first 4 weeks holiday in the year)? But what about bank holidays? Which bits are the 1.6 weeks additional leave under the Working Time Regulations and/or any more holiday given under the contract of employment? If an employee wants to bring a claim for under payment, they can rely on a series of deductions, but if it only applies to Euro Leave, when is a ‘series’ broken in any one holiday year?
This is an issue that affects employees and workers alike (including interns but excluding true volunteers) and they need certainty as to their rights particularly now that they have to pay fees for the matter to be determined by an Employment Tribunal. Similarly, businesses need certainty as to their obligations to ensure they can plan and budget properly, and to ensure that they do not have the low level hum of potential claims on this issue. Clarity is needed.
It has been suggested by many commentators that this is one area ripe for reform as part of the EU Brexit implications. We shall have to see, but there is no doubt that these issues will have to be resolved and it would be unsatisfactory if that should only arise from a slow drip feed of cases addressing the uncertainty that remains in a piecemeal fashion.
Do you see social media taking a more prominent role in employment matters and if so, what risks and benefits are there for both employees and employers?

There is no doubt that employment related matters increasingly involve social media, whether it is unauthorised access to a company’s twitter account, bullying between employees over their Facebook wall, the use of social media profiles in recruitment or the posting of offensive remarks on platforms which go ‘viral’ and bring the employer into disrepute as a result. Statements and documents in Tribunal claims also now often include extracts from an employee’s social media use and increasingly, standard disclosure includes not only emails and texts but also snapchat messages.
It is also more common than not, in settlement agreements or contracts of employment, to see various provisions relating to the use of social media and what an employee is and is not required to do in relation to any social media use.

The one area that has yet to develop further, but is only a matter of time, is the impact of social media use (such as LinkedIn and other ‘networking’ platforms) in the arena of post termination restrictions and the protection of client relationships.
As far back as 2009, Manpower undertook a survey of employers and asked what they considered were the main benefits of social media within the workplace. The responses identified seven key areas for business: brand building, fostering collaboration and communications, as a way of recruiting new talent, improving employee engagement and driving innovation. But there is no doubt that it brings with it risks as well including: productivity loss, the disclosure of confidential information, risks to the protection of client relationships, protecting the reputation of the business, recruitment risks, and bullying and harassment issues.
What is your advice for businesses looking to prioritise these risks and act upon them?

Because of the prevalence of social media use, whether it is encouraged or permitted for business use or not, employers should undertake an audit of its use of social media and the use of social media amongst its staff, and then brainstorm what it considers is and what isn’t important before drafting a tailored social media policy to give guidance to the workforce within that framework of priorities.
It may be for example, that a business considers it more commercial to permit employees to connect with clients and foster closer relationships over social media accounts such as LinkedIn which are more often than not private rather than corporate, instead of retaining a line of sight and control over client lists and prohibit that conduct. Similarly, a business should think carefully about the risks of using social media during a recruitment exercise and for its own protection it may introduce procedures to reduce the risk of a discrimination claim if someone is not selected for a role (for example, by identifying the remit of information sought from any social media profile and asking another member of staff to undertake the search and pass over to the selection panel only that information that has been identified as having any relevance to the role). This ‘social media brainstorm’ should also include an understanding of who has passwords and access to the business’ social media portals and how that access is protected.

Any social media use and monitoring policy should set out the ground rules and it should be as much about informing employees of risks and increasing awareness and understanding as it is about prescribing use and policing breaches. A good policy for example, will remind employees about: adjusting privacy settings, that referencing a project or client or colleague may be a breach of their confidentiality obligations or data protection entitlements, that there is a disjunct between what feels private and what is in fact private, and that once it is out there, the employee loses all control of the extent to which it is then disseminated to a wider audience.

The secret is to understand what is happening within the organisation in relation to social media and exercising some control over those elements of its use that are important for the business.

Is there anything else you would like to add?

I have heard talk of a proposal to reintroduce the rather historic cap on the compensation that can be awarded by Employment Tribunals for discrimination claims, in the same way that there is a limit on the compensation for standard unfair dismissal claims. Whilst as an employment law practitioner I may be accused of being rather self-serving, in my view this would be a prejudicial step backwards in the development of workplace equality. As it is, there is a great deal of discrimination which remains within the workplace and the threat of unlimited compensation plays a vital role in shaping behaviours for the better, as well as providing properly for those who are affected by discrimination.

Whilst I am sure there is little sympathy for senior executives earning large sums in our biggest corporations, the fact is that with the cap on unfair dismissal compensation, in reality, there is no such thing as employment protection for those individuals against unfair dismissal. No doubt some will say that that does not matter much because they have in the past earned large sums, but if a cap on compensation for discrimination is introduced for such claims, for those employers that can afford it, there is no reason why the Equality Act 2010 will become increasingly meaningless.

As a vital tool to tackle fraud and losses from malpractice, among other things, securities law ensures that investors have an informed and precise idea of the interest they are purchasing or selling and its value, and governs the procedures involved in the exchange of such assets.
Over the next few pages, Lawyer Monthly talks to Alexander Reus, Managing Partner of DRRT, a boutique international law firm and litigation funder. Alexander gives insight into the global challenges surrounding securities regulations, his and DRRT’s thought leadership in the sector, and discusses the past and due evolution of securities law on a multinational scale.
What are the most recent talking points on the matter of international securities law?
Given that our area lies in the enforcement of securities laws and claiming damages for securities laws violations, I would say the most commonly discussed phenomena is the strong growth of securities litigation outside of the US in Europe, Asia, Australia and Canada. In the US, the biggest uncertainty is surrounding the elections and who will come out as president and have the largest impact on a Supreme Court currently fairly evenly divided. A Republican president would certainly appoint a more conservative, business friendly justice who would continue the trend of anti-class action decisions, which will make the life of plaintiffs’ lawyers even more difficult.

Have there been any recent regulatory developments to affect your work in this legal segment?

Not really, as the Sarbanes Oxley Act had some impact on securities laws enforcement but otherwise, it has been the stronger focus on FCPA enforcement and even whistle-blower cases which have had an impact on shareholder litigation as well.

The most obvious pitfall is the likelihood of securities litigation in the form of class actions in the U.S. and Canada, which not only cost money, but also time, and tie up management in lengthy litigation and litigation related matters. The SEC has also been very tough on enforcing blatant violations of securities laws, but simply does not have enough manpower to pursue each borderline case.

How can companies ensure that they avoid these pitfalls? What is the one piece of ‘golden’ advice you give your clients about this, in particular regards to investor protection?

Our clients are the institutional shareholders in large companies, the largest institutions, mutual funds, sovereign wealth funds, insurance companies and other investors, all of whom are stakeholders in the company and therefore asked to act as owners in stewarding a company from the remote shareholder perspective as opposed to the daily management activities handled by management. The UK has promulgated a very detailed and strong Stewardship Code which lays out the obligations of asset owners to be involved in the company, and most countries even require that shareholders exercise their ownership rights through voting or engagement. The golden advice for companies is to treat the owners as such and not as a burden, to engage positively and affirmatively with the shareholder base, to have them involved in the company strategy and direction.

How costly and complex can compliance and enforcement proceedings become?

Compliance with laws and regulations is a major aspect of any business and the growth of the industry in the past years as far as allocation of resources and employees is concerned. It is expensive and time consuming but a necessary aspect of a successful business which wants to protect itself from bad employees or practices which may threaten the very existence of the company. As you can see in companies such as Petrobras and Volkswagen, if the corporate culture is one of cheating, bribing and corruption, then that will eventually catch up with the company and have severe consequences.
Over the past decade, have you seen a significant evolution in the demand for legal services in this regard, and in the frequency of litigation surrounding securities disputes? To what do you attribute these shifts?

Litigation has grown, so legal services in the securities litigation area are high in demand, as well as investigative services such as the ones Jones Day is performing for VW in a yearlong, very expensive internal investigation of the Dieselgate scandal. Hence, law firms are growing their investigative services capacities to review internal processes of companies and come up with a post-facto review of internal operations once a scandal has broken. There is also an increased need for legal services in connection with the protection of shareholder interest in proper compensation for damages causally related to the false or misleading statements of a company on a certain subject.
There is also a growing need for litigation funding in jurisdictions which do not have the US opt-out class action system and the associated financial handling of cases through law firms. Hence, in these jurisdictions, typically some third party funder will come in to underwrite and fund a litigation against a solvent company. There has been much development in this area. This, combined with the recent publicity concerning international corporate governance scandals such as in Japan (Olympus and Toshiba), Brazil (Petrobras) and Germany (Volkswagen), has led to an increase in international securities litigation. That is also encouraged by non-US settlements for large amounts, such as with the March 2016 settlement between shareholders and Ageas fka Fortis for €1.2 billion in the Netherlands.

In terms of accounting and disclosure, what are the key issues international companies need to take into consideration? What are the key directives for EU based companies?

The directives are pretty much the same, be transparent and timely in your disclosures, and avoid the abuse of certain market powers a company might have. It is easy when it comes to accounting fraud such as in the Olympus and Toshiba cases in Japan, as the rules are fairly clear and as the restatement of numbers typically indicates that something was (intentionally) wrong before. It is also easier for a shareholder to point at numbers which are substantially different before and after a disclosure and claim that there was materiality in the disclosure so that any damages resulting therefrom can be reasonably attributed to the false information.
Are there any challenges you frequently encounter in litigating antitrust matters on behalf of your clients, especially cross-border?

Antitrust laws in financial litigation matters have become a very interesting and sharp tool for plaintiffs. Especially in the benchmark cases (LIBOR, FX etc) in the US, the antitrust claims are the claims with the biggest threat because of joint and several liability, and because of the treble damages claim. In Europe, the antitrust claims are typically advanced by the European Commission and then, once a decision and judgment has been rendered, private claimants can piggy back on the decision to claims damages. In an interesting development, the UK has introduced an antitrust claim opt out class action mechanism but only for UK residents and only after a EC decision has been made.

As a thought leader, how would you change the law surrounding this area, if you could?

I would not change the laws per se, but I would change the procedures for private enforcement of securities and antitrust laws. The small investor and consumer is not sufficiently protected and without some bundling mechanism such as the class action, cannot effectively pursue damage claims against a multi-billion dollar company. Maybe the concept introduced in Brazil for mandatory arbitration clauses in publicly listed companies could be used in Europe to bring shareholder arbitrations in front of a single arbitration institution dealing with shareholder compensation claims. If that would be coupled with some threshold sign up of 5% of outstanding shares to start an opt-out class arbitration, then this might lead to very effective and fair results.

Is there a particular securities case you were recently involved with that required you to apply particular thought leadership to succeed?
I believe the Ageas fka Fortis settlement, that concluded in March 2016, in which I was deeply involved, proved to be a challenging but also interesting case to be resolved after many years of litigation, using mediators from different continents and different groups protecting different interests. It was a cultural experience just as the Olympus accounting fraud case we settled in October 2014, which required the introduction of the concept of pre-trial mediation techniques to settle a shareholder case in a jurisdiction (Japan) which is not typically open to or familiar with such alternative dispute resolution mechanisms at a time when there has not been a court decision at least on the lowest level.

How is the firm working towards changing the securities and antitrust landscape, and develop its thought leadership internationally in this legal segment?

We keep on exploring and developing new markets, adjusting to the local laws, procedures and ethical rules when coming up with client friendly financial and legal concepts to handle group litigation cases for institutional investors

Reed Technology and Information Services Inc. (Reed Tech), a LexisNexis company, recently launched LexisNexis TotalPatent One™; a patent research solution designed to deliver on-point results derived from the most comprehensive and in-depth content collection of patent and non-patent literature available. The newly built platform, incorporating state-of-the-art search technology and user interface design, maximizes efficiency and delivers easy access to the answers users require.

 TotalPatent One was crafted so patent professionals can confidently find the results they seek. Users can review their entire set of results on one easy-to-scroll page with no limit to the number of returned results. The results are enhanced by visual analytics which display metadata in charts and graphs so users can instantly analyze information on the authorities, assignees and class codes.

 Here Lawyer Monthly hears from the Senior Director of Product Management at Reed Tech, Jaime Zamora, about this innovative new software, and how it might help your business or law firm, both now and in the future. We ask who will be using it, how it works, how it adapts, and how it will impact the IP legal segment.

What makes this IP technology innovative and original? What is its USP and intended impact?

LexisNexis TotalPatent One™ employs new search technology combined with an intuitive user interface that enables users to get comprehensive, on-point results quickly. Returned result sets will allow users to confidently and quickly answer such questions as: “Is my patent being infringed,” “Would my application infringe the patent of anyone else,” “What are the related patents in this family?”

Patent researchers are looking for three main things in a tool: 1) a content set that is broad and deep; 2) a search engine and UI that is both intuitive and powerful enough to easily extract the requisite documents from the content set and 3) the ability to meaningfully display, manipulate, save and format the retrieved documents for review purposes.

TotalPatent One excels in each area. TotalPatent One has the most comprehensive content repository drawn from over 100 patent authorities (32 in full-text and 68 bibliographic). Secondarily, the complete redesign of the user interface and implementation of Single Page Application Technology (SPA), makes it an easy-to-use and highly effective search engine. Lastly, the user can easily manipulate the results as desired with integrated text and graphical visualization filters directly into the search results view, as well as offering the dynamic grid and image flipper views.

Who would the technology’s main users be and how will it help them?

Patent professionals at both law firms and corporations, research and development scientists and licensing/strategy professionals. Having complete answer sets will allow users to make strategic decisions about prosecuting and defending their patent portfolios.

How does the software work and what process does it undertake?

TotalPatent One uses the latest search technology to enable a more fluid, on-point and immediate set of response results. From its own data center, LexisNexis IP is running a private cloud to provide to the user’s browser a Single Page Application. New technologies allow even customers with slower networks the ability to experience a fluent application. The search language has been designed with the workflow of patent searching in mind, natively supporting desired features such as: class expansion, family deduplication, work folders, and annotation while still providing speedy, pertinent results.

How does it adapt to the needs and uses of its users?

TotalPatent One adapts to the needs of its users in several ways. Since the user interface is intuitive, users can quickly use TotalPatent One without a lot of training while the search engine logic returns on-point search results so answers can be found quickly and easily. The single-page application technology allows users a much faster and fluid user experience with filters that display the most pertinent results. The online collection of full-text and bibliographic patent information in both native language as well as English machine translation ensure better international patent searches. Finally, searchable PDFs are available in bulk download.

You say this technology will ‘will set new benchmarks for the industry’; how so?

 Patent research professionals make strategic decisions on how to best strategically approach their portfolios. Since patents are often responsible for the lion share of a company’s growth; it is critical they have complete and accurate information on which to make those decisions.

Ideally users want a quick, complete answer with pertinent filters and analytics from a tool that does not require a lot of training. We believe no other available patent research tool on the market can deliver against all of these requirements whereas TotalPatent One does.

Since its launch last month, what has been the overall response from users and the related professional industries?

There has been a lot of excitement around our launch. Our sales team has been very busy responding to requests and we have seen a significant increase in our web traffic. When showing the new solution to potential users, they are very impressed by TotalPatent One. I have heard comments like: “This is amazing,” “Lightning-fast,” “Slick,” “Light-years ahead.” The product is currently available for demo and our sales team is actively responding to inquiries about it.

Does LexisNexis IP have any further revolutionary technologies up its sleeve?

We have several exciting new enhancements and solutions on the way. We recently launched LexisNexis PatentAdvisor® Custom Information Reports for Alice and PathWays. Companies and law firms struggling with approvals for software patent applications now have an avenue to help them review what their options are to overcome Alice rejections with these customized reports. PathWays helps applicants characterize their inventions so they can avoid low allowance art units. Additionally, we have several very exciting launches coming over the next months. Please stay tuned as we will be sharing those with the marketplace over time.

Here to talk about his General Counsel role, his leadership in the sector, compliance, Brexit and ‘the Internet of Things’ is Jonathan Burton, Head of Legal at Bosch UK & Ireland. Lawyer Monthly hears from Jonathan on the challenges and complexities involved in heading up the legal team at Bosch, how the internet and advent of technology is changing the landscape of said challenges, and on the future goals and prospects of his legal career.

Can you tell LM briefly about the extent of your role, what it looks like day to day, and the kinds of exciting jobs you engage with?

Whilst I’m sure this could be said for most in-house positions, no one day is the same - which is why I enjoy it so much. Bosch is involved in so many different businesses and always looking to innovate and expand into new areas, so the role is constantly evolving. In terms of day to day, I have to circumvent the M25 most days, so I tend to leave pretty early to avoid the inevitable gridlock. A typical day starts with a meeting with the team to discuss priorities for that day and any shared learning points. The day is then divided between case work, meetings with management and communications with colleagues in Germany. Given the nature of Bosch’s business we are involved in very exciting projects from autonomous driving, to smart homes and Industry 4.0. Never a dull day in Bosch HQ!

Do you have a team around to help you in these matters? How do you manage this team?

I have a fantastically hard working and talented legal team in the UK. The vision for the legal function in the UK is to maintain “A friendly, accessible team which provides commercial and creative solutions through its unconventional and adaptable approach.” To me the “unconventional and adaptable” element of this role is in surprising our clients with a fresh approach to legal issues. The best example of this is seen in a recent training we organised – having a Star Wars theme and raiding my boys’ Lego collection!

What recent legislative developments have significantly affected the way you work in your role? Has Brexit been a potential for change at all?

We are currently planning for the implementation of the GDPR in 2018, which will impact the majority of Bosch’s businesses in the UK. As for Brexit, we are monitoring developments and keeping up to date with our customers and trade associations. It is still too early to say what is around the corner, but where we have historically relied on our membership of the European Union for certain protections, this may need to be established in the UK and might require additional support.

Are there any ongoing projects which you have had to recently oversee and provide particular legal leadership towards?

We recently acquired a business in Bristol (Kliklok International Limited) that manufactures packaging machinery for the food industry. Having come from a corporate background in private practice, the interesting aspect, from an in-house perspective, with these transactions is what we call the PMI (Post Merger Integration) process. At a law firm the deal tends to end when the bible has been completed. Being in-house provides the opportunity to meet a new team and assist in developing synergies with the wider organisation to achieve future success.

What would you say is the biggest challenge of being Bosch UK’s Director of Legal Services?

The biggest challenge is the ever-evolving nature of our business. Bosch is focused on exploring disruptive business models and constantly developing new products and solutions. This brings with it new challenges. The key however, is not to dwell on these, but to focus on the opportunities that the new business areas bring.

Despite certain challenges, what are the overall rewards, both personal and professional, of your role?

I get to work with incredibly talented, dedicated and knowledgeable people every day, from all over the business. It is an environment which drives constant innovation and as legal director I am one of the first to learn about the new products, services or concepts. Bosch is owned by a charitable trust, and the culture that this brings flows through the organisation, making it a really inspiring place to work.

You also serve as the Compliance officer for Bosch UK & Ireland; what kind of complex considerations do you have to make on a daily basis and how difficult is it to oversee compliance governance throughout the entirety of the company?

We introduced a ‘Compliance Dialogue’ last year, which saw us move away from lecture style presentations and put the emphasis on open communication within teams on compliance topics. Compliance now features on all agendas of the various board meetings, but also at general team meetings throughout the region. I try to use real life examples and case studies as much as possible, and get our employees to discuss potential compliance issues encountered in their daily business lives.

The Bosch Group has over 4,200 employees across 40 locations; what are the biggest difficulties in managing these employees, from a legal perspective?

Actually we have around 5,300 associates throughout the UK. The biggest challenge is getting around to see the different businesses, and being a visible and not just a virtual presence. We get the most out of our function when we build relationships with our employees and become that trusted business advisor. This works best by getting out there and fully understanding the various businesses. It’s not unusual for our lawyers to pop up at sales conferences or trade shows, and we regularly attend training on the products themselves.

How would you say the ‘Internet of Things’ is changing the priorities and considerations of in-house counsels around the world? In regards to this, what risk management steps would you define as paramount to the safe future running of the business?

The active presence of Bosch within the ‘Internet of Things’ is certainly having an impact on the legal team. We are working on projects involving industry 4.0, energy, mobility, smart homes, and smart cities. Each involves new business models and a greater emphasis on data protection, privacy, cyber security, software and intellectual property, than ever before. Whilst there is support available from the wider Bosch function, we are receiving more training in these fields and building closer working relationships with external law firms.

When you first jumped into this role, what were your career goals and professional ambitions? Have these changed since you began in 2012?

On joining Bosch my main objective was to understand the organisation as quickly as possible. Bosch has an enormous amount of acronyms to describe everything, including: business divisions, financial terms and HR matters – some of which are intuitive and others left me scratching my head. The first challenge was to master these! Overall, my ambition was to further the legal department’s progress on being a strategic business partner as well as maintaining our governance role. This hasn’t really changed.

I have contemplated moving towards a CEO role in the future and the advantage of my position in Bosch is that you gain such an oversight of all the various businesses with the opportunity to influence at that level.

51 North, a nine year-old private jet management company, based at Farnborough Airport, recently announced it has acquired long established management and charter operator Executive Aviation Services, ushering in a new era for the two family-run and managed businesses. This move brings together the worldwide and AOC expertise of the two companies.

When 51 North Group and EAS initiated partnership talks (at the Aviation Supper Club held at the Royal Air Force Club, London) in January this year, it was evident the two businesses shared the same values and cultures. Both are committed to providing personal, bespoke service for their clients and working closely as a team. The new partnership naturally creates a seamless stepping-stone to aircraft management opportunities – throughout the Group.

Chairman and founder of EAS, Peter Turner, will continue to be involved in the combined business and serve as a 51 North Group Board Director. He will also continue to be Chairman and Accountable Manager of EAS, responsible for the group charter activity. His daughter Kirstie Turner will remain as Ground Operations Manager, while son James continues as flight crew on the Citation Bravos and also FBO manager.

Day to day management will be led by 51 North Group/EAS Managing Director Kirsty Murphy who moved into business aviation from the RAF 15 years ago. She reports to co-founder of 51 North Group and Chairman, Neil Cochrane. Neil’s daughter, Lorna Carroll, will head up marketing for the combined group.

Interview - Neil M Cochrane (NC) 51 North and Judith Hillen (JH) Bespoke Services Sarl:

Please tell me about your involvement in the deal?

NC: I and my co-director Kirsty Murphy wished to acquire another company which could be integrated with 51 North and augment our existing activity. As chairman of the company it was my responsibility to ensure that we had a proper plan in place for the next five years of activity, taking into account new aviation legislation and the possibility of Brexit. We had specifically been looking for a European Charter operation with an Air Operators Certificate and had investigated two joint-ventures, plus another UK based acquisition, before we came into contact with Executive Aviation Services.

One of my main tasks was to lead the negotiations to establish parameters acceptable to both parties. During the initial stages it was also important to establish a good relationship with Peter Turner (Chairman of EAS) to ensure that there was compatibility between the companies going forward. It was and is our intention to fully integrate the companies and I needed to put a deal in place that everyone believed to be beneficial to both, so that we had an enthusiastic team in place for the future.

JH: 51 North brought donedeal in at an early stage to evaluate EAS enabling the parties to agree a detailed Term Sheet.  Both donedeal and Bespoke spent a lot of time not only on financial and legal due diligence but also on working with both parties to understand the commercial nuances and their aspirations.  The corporate deal reached was aimed at maximising the parties’ joint potential whilst enabling an even better service for their clients.

Why is this a good deal for all involved?

NC: This is a great deal for all the parties involved as our companies complement each other very well. The personalities of the key players are compatible and we share the same desire to provide a top class service with, as always in aviation, a focus on safety.  Together the sum of the parts is much greater than individually.

The combination of 51 North's worldwide experience in operating large corporate jets, sometimes into extremely hostile environments, with EAS's charter capability throughout Europe with busier but smaller jets provides a very good platform for future expansion.

What challenges arose? How did you navigate them?

NC: Our main challenge involved corporate restructuring and managing client expectations.   We were very happy with the assistance of our advisers in particular Judith Hillen and Gert Van der Linden in producing a final solution that is appropriate to our needs. We were under certain time constraints to complete the deal and bring the companies together and had to liaise closely with our legal advisers to ensure that this happened.

JH: The deal itself was relatively straightforward but care must always be taken when merging two long-standing businesses to ensure the strong values inherent in both remain sound and that commercially all parties are happy that the deal produced is mutually beneficial. Peter Turner’s continued involvement in EAS moving forward and Neil’s insistence that he become an integral part of 51 North reflected the fundamental respect that both Neil and Peter have for each other’s professionalism. My role became much smoother as any legal stumbling blocks could easily be smoothed out by focusing on the commercial realities of the deal.

Polsinelli, an Am Law 100 firm, recently announced that it closed a multimillion dollar deal between Colony Capital and Global Net Lease REIT Gramercy Property Trust.

Polsinelli represented Colony Capital in its sale of an industrial property in Littleton, Mass. to Gramercy Property Trust. The Littleton property is a newly-constructed 448,470-square-foot distribution center leased to a multi-brand retailer.

“The Littleton transaction is a great example of the persistent appetite for net-lease strategies where Colony’s aim was to create a win-win scenario for all parties involved,” said Georges Asmar, global head of net lease at Colony Capital Acquisitions. “This deal represents a case study for a high quality industrial property, which offers a great value add for the tenant’s competitiveness and great yielding potential for the new owner.”

The Polsinelli team included Brooks Clark (lead counsel), shareholder; Sarah Armendariz, associate; and Cora Blackwell, Real Estate analyst. Polsinelli also represented Colony Capital in the acquisition of the property, which included negotiating a long term net lease and the terms of the construction of the facility with the tenant.

By way of a share deal Aves One AG, Hamburg, has acquired 100% of the shares in ERR European Rail Rent Vermietungs GmbH, Vienna, Austria, as well as 33.3% of the shares in the German ERR European Rail Rent GmbH, Duisburg , Germany; the Austrian target being the asset owning company.

Signed on the 22nd August 2016, and expected to close towards the end of October, the purchase agreement for the acquisition of the ERR group was priced at EUR 33.5 million. Managing Director of ERR's Austrian freight wagon holding firm, Jürgen Bauer, will be the COO on Aves One’s Board of Directors.

Based in Hamburg, Germany, Aves One is a global asset owner of logistics equipment, and ERR is a freight transportation company that operates the rental of freight wagons for rail-bound transport.

In drafting the share purchase agreements, Aves One as purchaser was advised by Huth Dietrich Hahn (in Germany), partner Sebastian Kuehl leading the team, and by Kordula Fleiss-Goll of Jakobljevich & Grave Rechtsanwaelte (in Vienna) as regards Austrian law. The seller was served by Schoenherr with a team consisting of Alexander Popp and Miriam Simsa and as regards German law, the shareholders of ERR were advised in this transaction by Gleiss Lutz.

Following this transaction, Schoenherr believes Aves One is set to double its assets value to over EUR 400 million, subsequently increasing its freight wagons to 4,200 units. This also allows Aves One, participating in the management or ERR’s assets, to cover the entirety of the freight transport value chain.

Ardian, the independent private investment company, recently announced that it has entered into exclusive negotiations with Azulis Capital to buy a majority stake in the Lagarrigue Group. Lagarrigue is a leading manufacturer of orthopedic equipment in France. The management team will increase its stake, alongside Ardian.

Lagarrigue specializes in the design and tailor-made manufacturing of major orthopedic equipment, such as prosthetics and orthotics, for patients suffering from permanent or temporary disability. Founded in 1976 and led by Alain Montean, President, and Jean-Pierre Mahé, Managing Director, the Group has 33 agencies in France and employs more than 400 people. In 2016, the Group should achieve a turnover of more than €50 million.

Alain Montean and Jean-Pierre Mahé, respectively President and Managing Director of Lagarrigue, said: “After five years of strong growth thanks to constant support from Azulis, we needed a new strong partner to pursue our ambitious development strategy. With Ardian, we will benefit from the expertise and international network to enter into a new phase of development.”

Marie Arnaud-Battandier, Managing Director Ardian Expansion France, added: “Lagarrigue’s success is primarily due to the quality of its team, the performance of its agency network and the know-how the company has developed on this leading offer. There are numerous opportunities in this highly fragmented market and we look forward to supporting this company to continue its development, both in France and abroad, thanks to the support of Ardian’s resources and network.”

This will be the third acquisition completed by Ardian Expansion Fund IV, which closed in June.

French consultancy firm, ARIANE santé social performed commercial due diligences in a very specific market: prosthetics in the non-invasive orthopaedics market. The ARIANE santé social team, Thierry BOVAL (MD) and Agnès ROBERT (Essec), performed a market overview and a critical analysis of sales performances. This team is exclusively dedicated to the healthcare arena for more than 20 years, addressing topics on strategy, operations, doctor relations, technology, finance and regulation.