Understand Your Rights. Solve Your Legal Problems
With the unfortunate events occurring in the UK the past month, Prime Minister Theresa May announced she will ‘tear up any human rights laws that will prevent terror legislation’. This announcement evidently sparked controversial debates, leaving many to question if we can tackle terrorism without intruding on every citizen’s fundamental rights.
We hear from two specialists on the matter: Nick Cartwright who is a Senior Lecturer in Law at the University of Northampton and Director of Northamptonshire Rights and Equality Council, touches on the history of human rights, bringing up the notion that ripping up human rights will simultaneously destroy our value of liberty; we also hear from Allan Briddock from One Pump Court Chambers, who evaluates further on Theresa May’s statement, whilst discussing current enforcements in place.
Nick Cartwright, Senior Lecturer in Law at the University of Northampton and Director of Northamptonshire Rights and Equality Council
With less than two days of her disastrous general election campaign left to run, Theresa May had stated that the laws in the Human Rights Act which prevented the government to counter terrorism, should be ripped up. This left me and many others pondering which human rights laws she felt needed “ripping up”. The more cynical pondering lead us to think that if it was easy – and tearing up human rights laws in a State without a written constitution is depressingly easy – the woman who had served as Home Secretary for seven-years, hadn’t already done so.
The reality is two-fold. Firstly, our relatively limited human rights laws were simply not a factor in the atrocities committed in Westminster, Manchester or Borough Market nor, later, at the Finsbury Park Mosque. Secondly, to think that you can rip up human rights for some, but not for others, demonstrates a fundamental misunderstanding as to the very nature of human rights. It is this second point on which I wish to dwell.
There are a variety of reasons as to why one might believe human rights are worthy of respect and this explains the myriad approaches taken to protect fundamental freedoms in different jurisdictions. The UK approach, from which the European approach developed, is grounded both in a belief in an irreducible value of personhood or humanity and a belief in liberalism. The belief in the irreducible value of personhood has been credited separately to both our Judaeo-Christian heritage and the more secular philosophy of Immanuel Kant, although it most probably a product of both and best expressed through Kant’s categorical imperative to: “treat people as an end in themselves and never as a means to an end.” Our liberal tradition, for better or worse, is grounded in the work of John Stuart Mill who somewhat disingenuously, but adequately for my purposes, is paraphrased through the idea that ‘your liberty to swing your fists ends just where my nose begins’.
To rip up human rights necessarily involves diminishing one, or both, of these principles.
Human rights are different from other forms of legal rights in that they are universal, belonging to us all as human beings because of our shared personhood. To argue that we can rip these rights up for some, but not others, is to say that some of us have more personhood than others. If we rip up the rights of foreign nationals, we are arguing that the rights of what some call ‘our own’, trump the rights of those perceived as ‘other’, because personhood attaches to nationality. This is simply racist. This is of course to hold that personhood is binary, but all of the Abrahamic religions as well as the Kantian traditions accept this – we either are sanctified as part of a creation narrative or separate from the rest of nature because of our rationality, or both. Personhood is not something that admits of amounts or is earned or lost, rather it is both irreducible and incommensurable.
Alternatively, it could be argued that the human rights of us all should be ripped up - an affront to liberty. However, liberty is already affronted both by the limits that currently exist on human rights and by the very human rights that exist to protect it. The vast majority of human rights are not absolute, but can be restricted in the interests of States and governments; your right to free expression butts up against my right to, for example, privacy - a long way from where our fists meet each other’s noses. So if liberty is not absolute, but already restricted in the interests of the State, what further restrictions, through ripping up of human rights, could be achieved? The only rights that cannot be derogated from are: the right to life; the right to freedom from torture and inhuman and degrading treatment and the prohibition on slavery. Accepting that slavery is not really a counter-terrorism issue, the question that remains to be asked is do we really want to rip up human rights laws if that means that yours and my rights to not be killed or subjected to torture, is limited because we wish to restrict the rights of the ‘other’: the person who looks a little different, sounds a bit different, or thinks a bit different. Is it necessarily to limit the rights of us all?
I would go as far as to say that the ripping up of human rights, the ditching of our belief in the fundamental value of personhood and humanity and the further restrictions of liberty, would be to rip up the values and the way of life that all who oppose terrorism in all its forms claim to defend.
Allan Briddock, Barrister at One Pump Court Chambers specialising in: Personal Immigration, Business Immigration, Public Law and Civil Law
Theresa May puts Human Rights Laws in the Firing Line
Earlier this month, Prime Minister Theresa May once again put human rights laws in the firing line. In a comment made in a speech on the eve of the 2017 General Election and less than a week after the London Bridge attack, she vowed to beef up counter-terror powers by restricting “the freedom and the movements of terrorist suspects when we have enough evidence to know they present a threat, but not enough evidence to prosecute them in full in court . . . And if human rights laws stop us from doing it, we will change those laws so we can do it.”
What Theresa May is referring to here are Terrorism Prevention and Investigation Measures, known as TPIMs, which place restrictions on where a person can live, who they can spend time with, their access to phones or computers, where they can travel to, and so on. The Home Secretary can impose a TPIM where she has reasonable grounds to believe the person to be involved in terrorist activity.
Following the failure of control orders, TPIMs are the Home Office’s second attempt at a legal mechanism that places restrictions on those who the Security Services suspect may go on to commit a terrorist attack, but where they lack the evidence to prosecute them.
Most lawyers will remember control orders, the TPIM’s predecessor, which were widely criticised, not least by the Supreme Court in a successful challenge in 2010. In Secretary of State for the Home Department v AP the Appellant, an Ethiopian national, was subjected to a control order that confined him to a flat for 16-hours a day and forcibly relocated to a town 150 miles from his family. Lord Brown gave the lead judgment holding that a control order is a deprivation of liberty in breach of Article 5, in conjunction with the breach of Article 8 right to respect for private and family life.
Following the Supreme Court decision, and urged on by the Conservative Party’s coalition partner, the Liberal Democrats, then-Home Secretary Theresa May scrapped control orders in 2010. In their place, TPIMs were meant to be more effective and significantly, compliant with human rights law. The number of hours someone had to spend in their home was reduced, and you could no longer be forced to move away from your family and community.
These concessions were short lived. In 2015, the Counter Terrorism and Security Act reinstated the condition of forced relocation, added further restrictions on the ability to travel and required the person to attend appointments to aid de-radicalisation.
Turning back then to Prime Minister’s comment, it seems she has made two assumptions. First, that there is a large group of people who are a threat to national security but have not committed any crimes and the only way to prevent them launching an attack is to impose restrictions on their freedom.
Second, if we rip up human rights laws, more stringent conditions can be imposed on those who have been radicalised.
Unfortunately for the Prime Minister, the data undermines the first assumption. TPIMs, like control orders, have never been widely used. Between 2005 and 2011, only 52 people were subject to control orders. By the end of 2011, only nine were in force. This number dropped to three by August 2015.
Perhaps one of the reasons why they have never been widely used is the breadth of current terrorism legislation, which means that where someone does pose a threat, their freedom can usually be curtailed using other methods. For example, Schedule 7 of the Terrorism Act 2000 gives the power to stop and search a person at an airport, to search their belongings and hold them up to nine hours, without the need to suspect that person of involvement in terrorism of other criminal activity. Where someone is suspected of committing a terrorism offence, they can be detained and questioned for 14 days prior to being charged (the limit for non-terrorism offences is 72 hours). On top of this, the Act also criminalises a wide range of acts from being in possession of information that would be useful to someone committing or preparing an act (Section 58), to funding terrorist organisations (Section 17) to preparing for an attack (Section 57). It seems possible that TPIMs are not as necessary to counter-terrorism as Theresa May’s comment suggests.
Turning then to Theresa May’s second assumption that human rights laws could be changed to allow for more stringent conditions to be imposed; she again gets into difficulty. Even if dramatic steps were taken to repeal the Human Rights Act and withdraw from the European Convention of Human Rights, would it then be possible to subject someone to a curfew of 16 hours or more? Possibly not. The English common law of habeas corpus mandates the deprivation of liberty is prima face unlawful. These principles were affirmed in the landmark Hardial Singh case, decided in 1984 without reference to the ECHR, imposed limits on when someone can be detained. These limits mean that a person can only be detained for a set period of time and for a reasonable period. It is arguable that even without the Human Rights Act, cases like Hardial Singh and the doctrine of habeas corpus may place limits on the Prime Minister’s ability to curtail people’s freedom of movement.
Given the legal difficulties in imposing more stringent restrictions on terrorism suspects, the practical problems with TPIMs as they currently stand, and their lack of use over the preceding twelve years, it is hard to see TPIMs as the key to reducing the threat of terrorism in the UK.
United States Withdrawal from the Paris Agreement and the needs to legally change to help aid the environment for a better future
Written by Olivier Noël Yambo
5 June 2017 saw World Environment Day take place with all its glory, so this month Lawyer Monthly decided to hear from Olivier Noël Yambo who explains what the future for our planet will be; simultaneously, at the start of June 2017, the President of the United States, Donald J. Trump, created a surprise when he announced the United States’ intent to withdraw from the Paris Agreement — a landmark instrument on climate change developed under the United Nations Framework Convention on Climate Change (UNFCCC). In this article, Olivier addresses how legislation should change and what the regulative authorities should address, now that America has withdrawn from the Paris Agreement.
The Future of the Paris Agreement
Labelled as the first-ever universal, legally binding global climate deal, the Paris Agreement was adopted by the 195 UNFCCC Member States at the Paris Climate Conference (COP 21) on 12 December 2015, with a view to hold the Earth’s average temperature rise to well below 2°C, preferably to no more than 1.5°C above pre-industrial levels. [1] Following its entry into force on 4 November 2016, the Agreement became legally binding for all its Parties, including the United States.[2]
Cause and Effect
On 1st June 2017, President Trump held a press conference at the White House and provided insight into reasons why the United States are opting out of the Paris Agreement.[3] One of the central reasons invoked is that the Agreement is economically unfair to the United States because it places them at an economic disadvantage compared to other parties. For instance, under the Agreement, while the United States are blocked from developing their clean coal sector, countries like China and India are empowered to build additional plants and increase their coal production. Another example is that the Agreement refrains the United States from using their non-renewable energy reserves. The United States believe that this would negatively impact on their economic growth and slow down their efforts aimed at reducing joblessness and poverty. A last example is that the Agreement requires industrialised nations like the United States to provide significant financial support to developing countries, many of which rank among the world’s major emitters of carbon dioxide.
President Trump stressed that the United States were withdrawing unless the Paris climate accord was renegotiated. He also indicated that the United States were ready to negotiate a new climate deal that would be fairer for all.
The decision of the United States — the second world’s largest emitter of carbon dioxide after China— to withdraw from the Paris climate instrument could inflict a serious blow to the world community’s efforts to combat global warming and climate change.[4] Such a decision could not only jeopardize the four-year Durban process that paved the way to the conclusion of the Paris Agreement, but also send the wrong signal to other State actors — both Parties and non-Parties — increasing the risk of hampering any further political impetus that may be needed in the future.
What legal changes are needed to ensure that the United States’ withdrawal does not undermine the global efforts to fight against climate change?
One possible legal change would be to amend the content of the Paris Agreement in a manner that places industrialised nations and developing countries on an equal footing and responsibility when it comes to reducing greenhouse gas emissions. To that end, several provisions of the Paris Agreement should be amended. More specifically, the principle of common but differentiated responsibilities should be removed (Article 2(2)). The requirement for industrialised nations to provide financial support to developing countries should be replaced in favour of voluntary supports (Article 9(1)). And lastly, the prohibition of reservation under the Paris Agreement should be lifted (Article 27). Such amendments would not only present the advantage of ensuring that the Paris Agreement is not discarded for similar reasons than those invoked by the United States, it would also encourage the United States as well as other non-State Parties to reconsider their position on the Paris climate deal. However, the drawback lies in the challenges of adopting these amendments and their consequences.
Amending a multilateral treaty such as the Paris Agreement may prove to be a herculean task. Any proposed amendments to the Paris Agreement must be agreed by consensus. Where consensus cannot be reached, the amendments must be adopted by a three-fourths majority vote (Article 15 UNFCCC and Article 22 Paris Agreement). Given their controversial nature, it is highly unlikely that these amendments would be adopted either by consensus or by a three-fourths majority vote. Indeed, the three proposed amendments impinge on fundamental aspects and values of the Paris climate agreement. For instance, the principle of common but differentiated responsibility represents one of the main pillars on which the Paris Agreement is based. This is well reflected in both its Preamble and Article 2(2). The prohibition of reservation is the guardian of the treaty’s integrity. Enabling reservation under the Paris Agreement could defeat its object and purpose. As for the requirement of industrialised nations to provide financial support to developing countries, even if the amendment was to pass, there is little chance that the majority of developing countries would not walk away from the Agreement.
Another possible legal change would be to renegotiate a new climate deal. A new legally binding instrument could be negotiated to fit with the interests of countries like the United States. However, this possibility can present more drawbacks than advantages. Given the stakes involved, there is no guarantee whatsoever that these negotiations would lead to the successful conclusion of a new climate agreement. And even if they were, the negotiation process would require long years of debates and discussions, which in turn, could hinder the global process of combating climate change.
A chance or no change?
In the light of the above, a workable and meaningful solution would be to give the Paris climate instrument sufficient time to mature and yield spin-off effects. While the United States’ withdrawal could inflict a serious blow to the world community’s efforts to tackle climate change, it could also provide a new impetus to greater international solidarity and cooperation among all nations. At the first session of the Conference of the Parties serving as the Meeting of the Parties to the Agreement (CMA1) held in November 2016 in Morocco, many nations expressed their strong determination to implement the Paris Agreement, even if the United States withdraw.[5] China, India, Canada, and the European Union have already indicated that they remain committed to the Agreement’s long-term goals.[6] Furthermore, since the United States’ withdrawal announcement, ratification has been made by three other countries, namely, Norway, Moldova and Saint-Vincent and the Grenadines. As of the end of June 2017, the Paris Agreement counted 151 States Parties, including the United States.[7] Whether the United States decide to carry out their withdrawal plan, it is for the world’s nations to work in concert to close the gaps and address the issue of global climate change. The more countries commit themselves to the Paris Agreement, the better it will be implemented and the more likely that it or part of it crystallises into customary international law.
In the end, what is needed to help aid the environment for a better future is not a legal change but a chance to give the Paris Agreement the opportunity to become what it was precisely designed for — a universal, legally binding global climate deal binding all States including those that have not ratified it.
Olivier Noël Yambo is a PhD candidate and Research Assistant for the Centre for Marine Ecological Resilience and Geological Resources at Nottingham Law School.
[1] https://ec.europa.eu/clima/policies/international/negotiations/paris_en https://www.c2es.org/international/negotiations/cop21-paris/summary
[2]The Paris Agreement was accepted (ratified) by the United States on 3 September 2016;
http://unfccc.int/paris_agreement/items/9485.php
[3] https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html?mcubz=2
[4] http://www.cnbc.com/2017/05/31/how-us-carbon-pollution-compares-with-the-rest-of-the-world.html
[5] https://www.scientificamerican.com/article/nations-will-forge-ahead-on-climate-action-despite-trump/
[6] http://www.reuters.com/article/us-eu-china-idUSKBN18R3A4 ; http://www.climatecentral.org/news/china-india-climate-leaders-west-falters-21377
[7] http://unfccc.int/paris_agreement/items/9444.php
Virtual Employment Status Lawyers: Artificial Intelligence Supporting the Legal Profession, written by Dave Chaplin.
The legal profession is the latest to begin embracing artificial intelligence (AI) to support the work carried out by human experts. AI is already proving to be an effective tool to drive efficiency in various areas of law. Following recent activity on both sides of the employment status debate, we explain how AI can be used to help tackle a topic as complex and subjective as employment status case law.
Employment status, and how it is determined, has been under the microscope recently following the emergence of the ‘gig-economy’, where companies such as Uber and Deliveroo have been taken to tribunal by workers contesting their ‘self-employed’ status in search of employment rights.
In a more focused context that is less in the media spotlight, the reform of the Intermediaries Legislation – or ‘IR35’ – has driven up demand for employment status knowledge and expertise. These reforms, which make public sector hirers responsible for determining the employment status of the one person company contractors they engage, add huge risks to the users of contingent labour. An incorrect assessment of a genuine contractor can result in a substantial tax hit to public sector organisations still grappling with austerity. The changes have intensified the need for legal assistance in this area.
Clarity is needed, and fast. Contractors and their public sector clients are under pressure to prove their self-employed status, but manual solutions can’t respond quickly enough. Meanwhile, gig-economy workers are lacking a cost-effective specialist resource to help them understand where they should be given rights. This is where AI comes into play.
AI is Well Established Across Some Professions
For many industries, AI is nothing new, with medicine being an early adopter. In 1972, Edward Shortliffe introduced the medical profession to MYCIN, an AI system used to identify bacteria and prescribe appropriate treatment. Research found that MYCIN was able to propose an acceptable therapy at a better rate than infectious disease experts judged on the same criteria1.
More recently, in January 2017, a Stanford University study found that AI repurposed from software developed by Google could identify skin cancer from photographs with the same accuracy as board-certified dermatologists2. Working in tandem with general practitioners, the same experts have claimed that AI has the potential to transform treatment, and could soon help guide referrals.
AI’s development in the legal sector may not be quite as advanced – yet. However, it is already being used to drive efficiencies when used in an analytical context. In 2016, JPMorgan Chase used natural-language processing software to assess 12,000 commercial-loan contracts3. Subsequently, something that would have taken an estimated 360,000 hours for legal practitioners to complete was achieved in a matter of seconds.
How Can AI Help Determine Employment Status?
Employment law is incredibly complex, and so legal experts rely heavily on knowledge of hundreds of past cases and tribunal rulings when examining status. Rarely is a worker’s situation clear, which makes employment status evaluation a potentially onerous and time-consuming task.
For AI to evaluate employment status, it needs to know the legislation and understand the case law, and use this to evaluate the contextual relevance of each factor impacting employment status. All the while it would need to rigidly apply the same logic that the law itself requires when making its status assessment.
Meet Renoir, The World’s First Virtual Employment Status Lawyer
Renoir, the virtual employment status lawyer developed by ContractorCalculator, is an AI-powered virtual lawyer that can achieve exactly that. The key component in our IR35 compliance solution ‘IR35 Testing’, Renoir sifts through a huge amount of data captured directly from workers such as contractors via a detailed interactive online questionnaire.
It accurately determines the employment status of each worker based on their responses, pinpointing their position along a 19-point scale, precisely indicating where they stand along the self-employment/employment spectrum.
Renoir is the result of extensive development and research in collaboration with a large team of employment status lawyers and software developers completed over a seven-year period. As a result, Renoir delivers the same outcomes determined by the judges when tested against all 21 IR35 tribunal cases to date.
AI Drives Efficiency
As Renoir demonstrates, one obvious advantage of adopting AI is the major efficiency gains available to legal experts. We estimate that it would take a single legal expert roughly a year to conduct 1,000 reviews. Once the questionnaire has been completed, Renoir can carry out an evaluation within a second, and can comfortably cater for tens of thousands of users in a single day.
When applied to employment status, and indeed more broadly across the legal profession, this shows that AI can save countless man-hours by interpreting huge sets of data in a fraction of the time. Consequently, professionals can have upfront analysis to hand within moments, enabling them to filter out cases that don’t require any further attention, instead focusing their expertise strictly where it is required on higher value work.
Harnessing Big Data for Greater Insight
Conducting a detailed analysis of a worker’s employment status in such a short space of time means high volumes of assessments can be completed each month. This is not only far beyond the capacity of a human employment status expert; it also generates huge datasets.
Renoir analyses thousands of users each month, and our solution has conducted more than 100,000 assessments to date. It is these large quantities of valuable data being accumulated that fuels the big data approach that Renoir, and many other AIs, adopt.
With such a large sample of data drawn from a number of evaluations that a human expert would take years to complete, big data enables Renoir to uncover new insights. With AI, legal professionals can identify patterns and trends, compare benchmarks and highlight outliers. This in turn can be used to inform and guide decision making.
How Does Self-Learning AI Improve Accuracy?
The product of carefully developed and refined algorithmic structures, analysis derived from AI is already incredibly precise. What is really exciting is that most AI solutions are only going to become more accurate with time.
In addition to applying pre-programmed knowledge, Renoir, like many other AI systems, becomes more sophisticated with each evaluation completed. Self-learning AI means Renoir can identify outliers and changes in answers over time, in certain sectors or the industry as a whole. As a result, it is consistently able to adapt to the current state of knowledge, and can teach itself about different contexts.
AI in the Legal Sector – The Future
Stanford University’s research exploring the use of AI in identifying skin cancer is just one example demonstrating that partnering humans with an AI solution delivers more effective outcomes than either in isolation. The legal sector is no different.
Our objective is to enable experts to apply our solution to help protect the status of genuine self-employed contractors, whilst protecting those forced into the false self-employment found in the gig-economy.
But employment status law is just one example demonstrating how advanced AI can be used to augment human expertise, whilst introducing efficiencies, improving quality and trimming unnecessary admin and delivering otherwise unimaginable insight. As AI continues to make inroads into other areas of law, it’s surely only a matter of time before it is seen as an indispensable tool in the legal solutions toolbox.
Dave Chaplin is CEO and founder of ContractorCalculator, a comprehensive online resource for freelancers and contractors that has become the expert guide to contracting.
Dave Chaplin is a former IT contractor, founder and CEO of ContractorCalculator, and author of The Contractors' Handbook and Beat IR35: The ultimate guide to IR35 for contractors, agencies and clients.
Started in 1999, ContractorCalculator is the leading independent website for the UK contracting industry, with circa 150,000 unique visitors per month – most of whom are highly-skilled knowledge workers.
Dave Chaplin has lived and breathed contracting since he first took the plunge in 1997. He spent seven years working as an IT contractor in the City of London on critical, cutting-edge IT infrastructure and development projects for several major banking, communications and legal organisations.
About ContractorCalculator’s Online IR35 Review system
ContractorCalculator first designed and built its Online IR35 Review system during 2009 and 2010 which has been enhanced over the last year to address the new IR35 legislation that has come into effect in the public sector. This followed extensive research with experts in employment law, contract law, taxation and IR35 and the expertise acquired over 18 years of monitoring the IR35 legislation.
Underpinned by a powerful bespoke algorithm developed by ContractorCalculator’s CEO Dave Chaplin, the system factors in case law and the relative importance of key tests of employment, such as substitution, control, and mutuality of obligation (MOO).
Over 100,000 contractors have taken the test since it was first launched in 2009.
References:
(1) Negnevitsky M. Artificial Intelligence: a guide to intelligent systems. 3rd ed. Addison Wesley Publishing; 2011.
(2) Gallagher J. Artificial intelligence ‘as good as cancer doctors’. BBC. Online article. Available from: http://www.bbc.co.uk/news/health-38717928 [Accessed 21st June 2017]
(3) The Economist. Machine-learning promises to shake up large swathes of finance. Online article. Available from: http://www.economist.com/news/finance-and-economics/21722685-fields-trading-credit-assessment-fraud-prevention-machine-learning [Accessed 21st June 2017]
New research from, CenturyLink EMEA, an IT Services company specialising in digital transformation, has found that 20% of consumers would either definitely, or possibly, trust an automated, robotic service - such as a chatbot - to provide advice on a legal case relating to them. The survey, conducted by Censuswide, quizzed over 1,200 consumers, finding that those in London would be most comfortable taking automated legal advice (32%), shortly followed by individuals in the South East (22%) and Scotland (22%).
The study also revealed which kinds of legal advice they would take from a robot, and at which stage of the process automated advice would be most trusted. Almost a fifth (19%) of people questioned would trust a robot to manage and speed up the process of their case (for example, to schedule meetings and remind them of key dates). Speed was of particular importance to those between the ages of 16 and 34 (29%), while only 16% of 45+ year olds seemed to place importance on how fast a service is.
A further 15% of those questioned would trust an automated service to send and manage relevant documents for their case, such as passport scans or proof of address documents, and a 14% would trust automated services to advise them on which law firm would be best for their case. However, the research also revealed that only one in 20 (6%) would take actionable advice from a robot, thus removing the need for a human lawyer.
The data reveals a clear requirement for human interaction at some point during the legal process, but concerns around the source of robot-led advice is evident. For example, nearly half (45%) of consumers feel advice would lack human knowledge, over one in three (35%) believe advice given wouldn’t be unique or bespoke enough for them, and a further 31% worry about where the information they provide would be stored, or shared elsewhere.
Steve Harrison, regional sales director of legal services CenturyLink EMEA, commented: “When it comes to the use of robots in the legal sector, consumers have been loud and clear. While there is room for the use of AI and chatbot-led practices, human input should still lead the way. However, the legal sector still has much work to do to improve the overall customer experience, shaking up traditional paper-reliant working models and helping ease workloads.
“Alongside this, there is definitely a requirement for law firms to embrace technologies, such as robotic and automated services. With most consumers’ saying that they would trust a robotic service in the early stages of a case, this is where legal firms can stand to gain. By utilising such technologies in the initial stages, they can dedicate time to the more bespoke services – for which 35% of consumers’ value highly.
“We’re starting to see an emergence of new organisations in the legal sector that are honing in on the inefficiencies that we’ve seen in the space, and are finding innovative ways to solve these age old problems – primarily, efficiency. Some of these organisations are already offering AI related solutions to help understand unstructured data and comprehend natural language to pick warning signs, for example. As these initiatives gather pace, it’s only likely that consumers will gradually become more comfortable in receiving advice in this way.
“However, with their cost and influence comes responsibility, and this is significant when it comes to providing legal advice. Whilst start-ups may be leading the way in terms of new technologies, the incumbents can use their heritage to their advantage. Having the in-house knowledge and expertise will go a long way for consumers if that can be incorporated into digital-first services.
“That said, law firms shouldn’t run before they can walk. There’s a long way to go until consumers completely trust this machine-learned advice, and it needs to be invested in carefully. Implementing an AI system that can’t be supported by IT infrastructure - and subsequently fails – will only damage customer relationships. By ensuring that back end technologies are up to speed, law firms can digitally transform to embrace AI, as opposed to consider it a hindrance.
“By implementing, integrating and maintaining these kinds of technologies into their wider digital transformation strategies, law firms are enabled to enhance their customer services. By looking at how automation can speed up and improve certain elements of the legal process, they will not only appeal to a wider audience, but increase time that can be dedicated towards more bespoke and intricate cases.”
Steve Harrison
Steve Harrison is the Regional Sales Director in EMEA overseeing the Legal and Media and Entertainment verticals.
Steve is an accomplished, results driven sales leader with 15 years leadership experience in technology companies. He has a consistent record of over achievement as a result of building and developing successful teams, creating and implementing growth strategies and by developing deep understanding of vertical markets.
He has been recognised throughout his career as a top performer and a passionate leader, he has been a member of the Global Microsoft Top Talent Program (Top 2%) for 3 consecutive years, and selected as a coach and mentor to his peers.
CenturyLink is a global IT solutions leader that powers the needs of businesses of all sizes through our hybrid IT services including public and private cloud, data centre colocation, managed hosting and network services.
In Europe, we work with leading brands, such as Cancer Research UK, easyJet, Euromoney, G4 Security and Universal Music. Every day we help our clients to deliver agility, innovation and speed to market for their businesses. Every minute they harness the scalability and economics of cloud-based technologies.
Nick Gibbons, cyber security expert and partner at BLM, considers the potential perils that may come with the use of drone technology, and the legal protection that will be necessary to prevent drone-jacking and hacking.
Typically, when the conversation moves to drone-jacking, people immediately envisage a Hollywood-style breach of national security, before Will Smith steps in to save the day.
However, attacks to this technology are very real risks for businesses utilising drones for more ‘everyday’ purposes, such as e-commerce giants handling drone deliveries, or companies gathering surveillance for insurance claims.
These aren’t far-off, futuristic scenarios either. We are currently seeing increasing interest and investment in drone technology for a range of purposes, with Amazon last month announcing an expansion to its R&D team in Cambridge; this will see 400 technology specialists get to work on fine-tuning delivery drones on behalf of the e-tailer. Despite claims that such deliveries are ‘pipe dreams’, there is a growing market for commercial drone technology, and with this comes a growing risk of drone-jacking.
Last November, a report from Intel’s McAfee Labs predicted that cybercriminals will likely soon turn their focus to targeting drones, particularly those used for law enforcement, filming and deliveries. Drones without adequate security in place are left vulnerable to hacks, with the report speculating that 2017 will see an increasing availability of pre-packaged software and toolkits for hacking via the dark web.
In these cases, hacking of the drone itself or its supporting software may result in either physical misuse or data breaches. Hacking for the physical diversion of a drone carries the potential for personal injury or property damage, or actual theft of the drone or indeed the item it was carrying.
Theft of data is another real risk, particularly if the drone contains personal or sensitive information, whether customer data included for delivery purposes or even footage collected via an attached camera.
The loss of data via drone-jacking then leaves businesses and authorities with a myriad of privacy concerns. In recent years, there have been a raft of data breaches resulting in an invasion of privacy for customers of companies including TalkTalk and Camelot.
These attacks are becoming evermore sophisticated and wide-reaching; recently, we saw the extensive damage that hackers can unleash with the WannaCry cyber attack bringing organisations across the globe to a standstill.
If these attacks are targeted to drones, drone-jacking could leave businesses and their customers equally exposed with regards to personal and commercial data.
Although the use of drones is already, to an extent, covered by a range of laws and regulations including the Data Protection Act and the law of confidence, greater focus and more specific and targeted legislation is necessary, as are effective insurance products for organisations that opt to use drones. This is especially important with the European Commission predicting full integration of drones into European airspace by 2028.
The Government’s recent Vehicle Technology and Aviation Bill notably did not include provisions for drones, though a consultation on the safe use of the technology did occur in March 2017. Whether this will be a priority in the new Parliament remains to be seen, though the Queen’s Speech did discuss legislation to ensure the UK as a leader in new industries and technologies.
Currently, a combination of existing insurance policies are required to cover the risks associated with drone technology. As the risk of electronic theft of sensitive data rises, the market for these specialised policies grows. In the case of drone-jacking, it would be wise for a business to consider cyber risk policies that are available for first and third parties. These policies provide protection against business interruption, reputational risks, notification expenses and the payment of compensation to individuals affected by security or privacy breaches.
Whilst a business or organisation may find investing in drone technology an attractive proposition, an incidence of drone-jacking would be incredibly costly. It is critical that companies consider the security breaches drone-jacking could leave them open to, and invest in the appropriate protection, for when Will Smith is not available.
Nick Gibbons
020 7638 281
About BLM
- BLM is the UK and Ireland’s leading insurance and risk law firm. With a turnover of over £100million, we advise insurers, Lloyd’s syndicates, MGAs, brokers, corporate policyholders, professional indemnifiers and other market organisations.
- With more than 200 partners and 1600 staff, BLM is instructed on a broad spectrum of legal issues and acts for customers in key sectors such as construction and property, corporate risks, healthcare, insurance and indemnity, leisure, public sector, retail, technology, media and telecoms, transport and the London Market.
· BLM has 13 offices across the UK and Ireland in Belfast, Birmingham, Bristol, Cardiff, Dublin, Edinburgh, Glasgow, Leeds, Liverpool, London, Derry, Manchester and Southampton.
- BLM presently advises 12 of the top 15 insurance companies. We aim to be the firm of choice for customers seeking concise advice, stellar service, value for money and long term partnership.
- The firm was formed from the combination of two leading practices, Berrymans Lace Mawer and HBM Sayers, in May 2014.
· On 1 December 2014 BLM combined with leading Northern Ireland based risk and insurance law firm Campbell Fitzpatrick Solicitors (CFS).
· On 10 March 2015 BLM relocated its London operations to a central flagship office at Plantation Place in EC3.
I am Michael King, a Senior Director in GVA’s Valuation Consultancy team, and am based in the firm’s Manchester office. I am a Fellow of the Royal Institution of Chartered Surveyors and an RICS registered valuer and accredited expert witness. I am also an RICS accredited Evaluative Mediator and provide alternative dispute resolution mediation services. I lead GVA’s UK expert witness service offer, focusing in particular on training, related expert accreditation and quality assurance. GVA has a UK wide network of surveyors experienced in expert witness work, many of whom are also RICS accredited experts, and who cover the full set of property skill sets and hence potential areas of dispute in real estate in Courts, Tribunals and Inquiries, and alternative dispute resolution arenas, such as Mediation. My personal experience is in property valuation, involving both commercial and residential assets, involving owner occupied, investment and development real estate. I also have a 34-year career long experience in all matters concerning compulsory purchase and compensation. GVA is a top 5 UK property consultancy with a strong regional office network, and offers a comprehensive real estate service throughout the UK through its strong regional presence, and with European, South East Asia/Pacific and North/South America coverage via our global affiliation network of firms under our GVA Worldwide brand initiative.
Have you seen property related disputes change over time? Have there been any particular trends you have noticed throughout time?
In the period following the end of the property boom in 2007 and the recession from 2008, there was a significant increase in professional negligence litigation, much centred on negligent value cases, particularly with banks/lenders taking action against imprudent secured lending valuation advice prepared by valuers. Some of the general excesses of the property boom certainly came home to roost, with some valuers appearing guilty of abandoning prudent valuation practices during the very active transactional market, presumably overly comforted by the upward trend in property asset values. This was mirrored by the insatiable appetite of banks to lend to real estate, which itself underpinned a very significant volume of secured lending valuations undertaken, and which was exasperated by the very active property investment and development market that existed up to the end of 2007.The recession also meant that many stakeholders in property investment and development lost money as economic and property market conditions worsened, or necessarily ceased being able to trade, out of choice, or forcibly from banks calling in loans. This inherently resulted in a greater propensity by parties to seek somebody to blame if possible, leading to an increase in property related professional negligence litigation across the professions generally. It also became apparent that a by-product to some extent of the stresses of the post-recession period, was on a personal level evident in an increase in marital dispute emanating from hardship pressures, and an increase in the need for expert valuer evidence into disputes over asset values, and in particular property assets. As limitation periods on post-recession professional negligence cases have resulted in a diminishing number of recent new cases, and not withstanding lawyers ingenious work in extending those limitation timeframes, there does seem to be an increase in the number of cases currently being taken by former borrowers against bank lenders for consequential losses arising from miss-selling on base rate swap loan products. Similarly, there appears to be an increasing number of cases against lenders or their appointed receivers where action has been taken to foreclose on bad loans, and former borrowers are questioning the actions and conduct in terms of the banks and their appointed advisers in prudently realising optimum property asset value as obliged. There has certainly been some general criticism of the conduct of certain banks in terms of their policies dealing with their bad debt loan book. This cycle of varying types of real estate litigation at any given point in the market cycle is not untypical, and goes hand in hand with the regular broad spectrum of property disputes which is ever present for varying reasons.
How often does the instability of the property market and its economy pose difficulties/ lawsuits for those invested in estate? What advice would you give to those who fall victim to this?
It is clear that the health of the economy and real estate market does have a direct impact on the propensity for particular litigation, and the likelihood of action being taken by key real estate stakeholders. A deteriorating economic and property market dynamic will more likely result in losses being incurred by property investors, speculators and developers, and it follows that there can be a greater propensity to take litigation against professional advisers engaged in real estate advice to endeavour to recover losses, and clearly where fundamentally it is felt the advice has been a contributory factor.
What further considerations must be made for projects which are on a larger scale, and internationally based?
The scale of project can of course influence the inherent make up of a dispute, primarily in terms of a commensurately increased number of key stakeholders being a party to a project, and in terms of the complexity of the project and any related contractual obligations. Combine this with a varying cross border key stakeholder dynamic, which can also enhance the complexity and potential for disputes, as there can be fundamental differences in approach and in terms of output expectations from parties with varying international credentials. To negate the potential adverse factors that might serve to undermine a project, it is again critical to appoint professional advisers who are wise to, and have experience of, these nuances within the context of the project, and can be aware of them from the outset to structure contractual agreements, and deal with varying demands/expectations accordingly.
Aside from remaining objective, what other characteristics do you think accounts towards being a good expert witness?
The ultimate requirement for experts under Part 35 and 25 Civil Procedure Rule and other such protocols, and indeed the RICS guidance to surveyors acting as expert witnesses, is to maintain an expert’s ultimate duty to the Court in preparing and presenting evidence, and obviously not to their instructing parties. This is of paramount importance to the measure of a “good expert witness”, and goes hand in hand with remaining robust against the inevitable pressures from instructing clients to see it their way. Ultimately, any negating of this obligation will likely only disadvantage the client, by likely extending the litigation process and related cost, without enhancing the evidence upon which an acceptable settlement might be attained. However, of equal importance, ultimately is an expert having a thorough knowledge of the subject matter forming the basis of their evidence, and also having a propensity to review opinion if presented with information during the process that warrants it, rather than allowing such matters to ultimately undermine an expert’s position under cross examination. A reluctance to embrace new credible information has the potential to undermine an expert’s overall evidence, and a Court’s opinion of an expert’s standing and credibility. A Court is often faced with two learned experts offering greatly varying evidence and opinion, and in such circumstances, it may be that a more confident presentation and defence of an expert’s evidence under cross examination in contrast to an opposing expert’s less assured performance, may ultimately be the defining factor upon which a Court determines which expert has offered the more persuasive arguments.
Michael King
Senior Director
T: +44 (0)161 956 4008 | M: 07786 020741
michael.king@gva.co.uk | www.gva.co.uk
We speak with Amey Haywood, who is Head of Expert Witness Services at Bush & Company. An expert’s role is significant during disputes, and she begins her interview by expanding on the services that her team offers: “Our expert witnesses produce liability reports looking at causation and breach of duty, and quantum reports that establish proportionate value of claim.
At Bush & Company, we work with a diverse range of expert witnesses which we allocate to cases within their area of specialism, based on the client’s individual needs.”
How do you ensure that the expert witnesses that you provide make an objective decision when called to give an expert opinion?
As a company, we are committed to investing in the continued support and training for our expert witnesses. All of our experts follow an induction programme and receive mentoring, as well as online training and specialist face to face training delivered by a communications expert and a barrister. Amongst other things, this period of professional development covers essential skills such as report writing and court appearance training.
We also engage our experts in regional meetings to ensure they are kept up to date with industry developments and current legislation. In addition to this, we offer peer review and supervision as well as our annual company conference which provides the opportunity to network and knowledge share for best practice and CPD.
In liability cases we safeguard impartiality by ensuring that experts have not worked within the Trust involved in the case, enabling them to deliver a non-biased opinion.
Are there any special considerations undertaken when devising a quantum report for a child as opposed to an adult?
In the first instance, any case involving a young person must gain consent from the parent, litigation friend or guardian. This ensures that the care giver is in agreement with the assessment process and involvement of the child, and is aware that the report will be used in court.
Secondly, an expert with paediatric experience must be enlisted to fully consider a child’s developmental milestones, as the phases of growth both mentally and physically will affect their ongoing requirements. Understanding a child’s life stages, such as starting nursery or school helps expert witnesses to reflect on the differences in care they may need over time.
More recently there is a growing focus on the transition to adulthood, between the ages of 19 to 25 years. We know that this is a period in which brain maturation takes place and so it is important to consider the impact of moving into adulthood. Expert witnesses must also have significant knowledge of the Children and Families Act so that they are able to evaluate which statutory services will be reliably available for the child.
What difficulties arise when providing such reports? Do you think the legal profession could adopt to ensure your role as an expert is as smooth as possible?
In cases where a child is the client, parents are significantly involved in the process and the young person is often assessed more than once during the quantum reporting period.
Parents may find it difficult to prioritise an expert visit if they already feel overwhelmed with school and hospital appointments. However, working to court deadlines means that these visits should not be underestimated by all involved in the case.
It is the expert witness’ responsibility to be sensitive to the family’s circumstances and provide clear explanations. An open approach to communication is often the best way for parents to accept that their personal view may not be appropriate for the expert’s reporting.
The presence of a case manager may be reassuring to parents and helpful to the expert, who ideally needs to see the child with a parent or guardian at home or school, if appropriate. In my experience, it’s helpful to have the Education, Health and Care Plan (EHCP) detailing a child’s statutory provision of relevant services, so that the expert witness can make an objective evaluation on quantum issues and costs for the care recommendations.”
Has there been an instance when cases are very difficult to give reports on? How are such cases tackled?
When dealing with people’s lives, following an incident that has resulted in catastrophic or serious injury, all cases are challenging. Bush & Company ensure that our expert witnesses are fully trained and supported to deal with the difficult and sensitive nature of these cases.
In recent years, we have seen some complex cases reported in the press and it is important that expert witnesses remain true to the facts and not swayed by media speculation. They may have to report things that they don’t agree with on a personal level, but must put their own thoughts and feelings aside to deliver a professional service and produce a report based on the evidence.
Can you talk Lawyer Monthly through the process of devising an effective report and service when called to case? What do you think makes a good expert witness?
All our reports go through a stringent review process to ensure that our expert witnesses maintain their objectivity. Reports are vetted by our QA team which includes a solicitor and experienced expert witnesses who provide accuracy from a legal and clinical perspective, as well as a bank of secretaries for grammatical checks.
Fundamentally, the role of the expert witness is to provide technical analysis and opinion which will assist the court in reaching its decision. The opinion evidence put forward by the expert witness is based on evidence of fact.
It is important to say that an expert is not the same as an expert witness. An expert offers special expertise in a particular field and an expert witness offers additional skills and abilities such as courtroom skills and report writing. A reliable expert witness is not only confident in their area of expertise but has accrued life experience that helps them relate to a client and the challenges they will face.
Although the opinion of an expert witness is being sought by the claimant or defendant solicitor, their duty is primarily to the court.
Amey Haywood
Head of Expert Witness Services
ahaywood@bushco.co.uk
01327 876210
Amey joined Bush & Company in 2016, following her role as Head of Community Services and Registered Manger for the UK’s largest mental health charity.
Combining her leadership skills and frontline experience, Amey heads up a team of specialist expert witnesses across the country and ensures adherence to Bush & Company’s quality standards.
Bush & Company is the largest and fastest growing provider of expert witness, assessment and case management services in the UK. Providing specialist medico-legal and rehabilitation expertise to insurance companies and solicitors, working with people who have sustained serious or catastrophic injuries, Bush & Company acts on referral from the injured person or by instruction from a claimant or defendant representative.
Bush & Company has more than 135 specialist consultants across the UK, all with a minimum of ten years’ frontline experience. Matching consultant expertise with the needs of the client, Bush & Company provides services for cases involving adults or children, following accidents resulting in disabilities such as spinal cord injury, acquired brain injury, amputation, orthopaedic injury and visual impairment, or conditions arising from medical negligence such as cerebral palsy, erb’s palsy, abdominal injuries and orthopaedic injuries.
Valerie isn't your typical city lawyer. She works at a major international law firm - Hogan Lovells is a serious power house - but is part of the next tech savvy, innovative generation focused on what her clients really want and are not restricted by historic client/lawyer models. These lawyers are looking to do things differently, and in Hogan Lovells are encouraged to be confident, creative and adaptable in the ways they meet their clients' needs.
Valerie speaks passionately about why the changing world - and demands on those in the product supply chain - means law firms need to change to meet the demands of their product clients. They need to change the way they think, speak, and act - and Hogan Lovells certainly seems to be ahead of the curve in this space.
"Working with Hogan Lovells' Global Products Law team feels like you're working with a team of people who really understand that the whole point of the exercise is to get your product onto the market, compliant, and to keep it there. It’s easy to speak to us - straightforward and frank emails and calls, with just the right level of detail; not lengthy legalese.
One strength is the time we take to get close to our clients so we really know their commercial drivers. Our lawyers are encouraged to think like in-house counsel - who come under huge pressure if they don't provide quick and commercial advice. Underlining it all is the need to be adaptable - many companies have their own culture and there's different ways of working with external counsel. The trick is to know your client - and get it right on an individual basis."
Why do you refer to 'product law' rather than using the more traditional product liability vs product regulatory and compliance split?
Hogan Lovells originally developed a very strong 'pure product liability' practice on the back of the pharmaceutical and tobacco litigation of the 80s and 90s. This practice remains a major strength for the firm.
But the world is changing - there's a hugely significant world of international product regulatory law and consumer law for those in the product supply chain to navigate. Penalties for non-compliance can be significant, depending on the country, regulator, product, and fact pattern. The risks of non-compliance go beyond regulatory intervention: in some countries, depending on the issue, it can mean criminal penalties for the company and even individuals in the supply chain. Non-compliance can result in huge reputational damage and loss of market share, revenue and l competitive advantage. And it gets significantly worse - of course - if the circumstances around the non-compliance lead to litigation and product liability claims.
At the same time, now more than ever, an increasing number of companies and innovators are moving into the consumer product space. The pace of change and product development in the last couple of years far exceeds the pace of change in the decade before that. Technological advancement and the global market place means almost anything is possible - and products can be sold internationally very quickly. To stay relevant, meet consumer demands, and look after revenue, responsible companies want their safe products on the market quickly, and on as many platforms and in as many countries as possible. All with minimal product, packaging, and sales platform tweaks for the local market.
Against this backdrop, it no longer makes sense to look at product work primarily from the perspective of product liability cases and potential claims.
We're so much better placed to support product companies and those in the product supply chain - and internationally - if we become simply "product lawyers", specialising in global product law through our huge global network of product lawyers.
What does this mean in practice?
Law firm's experience and expertise in products has often focused on the post-marketing stage, once products are in the hands of their owners and are alleged to have caused some sort of harm resulting in a liability claim. That's quite late in the product story.
Our clients are often looking for legal support and commercial input at the product design and testing stage, for example, and have questions on chemicals and labelling and packaging, and general product safety and compliance issues. Clients need lawyers with excellent relationships with regulators and market surveillance authorities. And let's not forget the importance of having lawyers who can help navigate the world when products are designed ahead of law and regulation, and who can help launch products internationally by coordinating with local lawyers, authorities, testing houses and certification organisations.
So... how do you do it all?
First, thinking like in-house counsel means knowing when to bring in additional expertise. When a product company wants to know more about marketing law, for example, we loop-in the marketing law experts. Likewise, there are often questions around product launches relating to tax and customs - and we'd helicopter in experts in this field. It’s about bringing in the right level of expertise at the right time.
Second, Hogan Lovells has adapted the way it channels its lawyers into teams - we’re moving away from the concept that technology is handled only by “IT lawyers” and towards a model where technology matters are managed by lawyers across many different practice streams. In London, our Tech Hub supports innovators, incumbents and start-ups on cutting edge projects - working across all practice areas. We think ahead: helping our clients to understand the impact of new and existing laws on new technological trends and developments.
Third, we know the importance of staying ahead of the curve. Our Global Products Law team monitors legal developments in product liability, regulation, safety and compliance from around the world. One of the ways we do this is by working daily with a huge international network of lawyers. In the same way that client instructions flow across the network in order to offer global advice to our clients, our network is similarly connected to make sure the team is aware of changes that affect our clients.
Have there been any significant legislative developments that have affected your work at all during the last 12 months? If so, please explain.
This is a really interesting time to be a products lawyer doing both regulatory work and handling product related litigation and liability risks. For example:
The Product Liability Directive (PLD), which created the strict liability regime in the EU, has had a 30 year lifespan so far. Despite regular review, it has been consistently considered to be, overall, a good piece of legislation that strikes an appropriate balance between all interest groups. One of its objectives is "solving the problem, peculiar to our age, of increasing technicality, of a fair apportionment of the risks inherent in modern technological production". So, while it may be tempting to conclude that it is not an adequate tool for dealing with liability questions arising from new technologies (given that it was adopted before even the internet rose to prominence); the reality is that the PLD has already risen to the challenges of developing technology, aided by judicial interpretation, over the past 30 years. This year, the European Commission is once again preparing an evaluation of the PLD, with the results expected to be published at the end of the year. A key focus will be to determine whether the PLD remains fit for purpose in the context of more recent technological developments, like the Internet of Things (IOT) and autonomous vehicles. One thing we are looking out for, is if there are proposed changes in order to "futureproof" the PLD. The last review, in 2011, concluded that it would be "premature" to do so. We will be interested to see if the EU Commission now finds, on balance, that the time has come to change the PLD.
Another hot topic for product lawyers is, of course, IOT; the technology that allows products (anything from smartphones to wearables and more) to interconnect. Our Products Team has been contributing to the Alliance for Internet of Things Innovation, an association initiated by the EU Commission, since its launch in March 2015. A "one-size-fits-all" approach is not appropriate to deal with this complex and emerging technology. While in some cases, existing legislation and regulation may be enough to deal with the challenges of IOT; in others, greater change may be required. So far, we haven't seen strong evidence that existing regimes are incapable of dealing with the issues that arise in IOT – but this will have to be monitored, and in due course, appropriate regulatory guidance and/or jurisprudence may be needed to respond to specific needs for clarification. As IOT technology, and the products it can be used in, continues to develop, and as consumer up-take increases – this is certainly an area to watch.
What sort of things do companies generally find challenging in the field of product liability and product regulation? How do you navigate those challenges?
Changes to well established laws and regulations can happen quickly, and so we help our clients to navigate the complex arena of product regulation, particularly where innovative products have developed faster than laws and regulations. It's no longer as simple as a product falling neatly under specific regulations; we now help clients to first determine what laws and regulations apply to their products, and then to comply with them.
We also help our clients meet internal demands for increasingly quick turnarounds and to produce packaging for their products that fits with the brand's individual image. Requirements and risks differ from jurisdiction to jurisdiction, and not always in obvious ways - so we tap into our Global Products Law network at Hogan Lovells to provide our clients with practical and precise advice. A client's desire for a global approach is understandable, and we see this in requests that range from creating a global warranty to agreeing a global set of packaging and instructions for any given product. We work with our clients to understand the relevant requirements, assess the risks, and ultimately decide on an approach that best meets their needs, balancing this against the potential risks of the range of possible options available to them.
Valerie Kenyon
Senior Associate
valerie.kenyon@hoganlovells.com
+44 20 7296 5521
Valerie Kenyon is a senior products lawyer in Hogan Lovells' Global Products Law team, and is based in London. A home-grown rising star within Hogan Lovells, Valerie focuses on pure product related regulatory, litigation and compliance matters. With a significant international client base, especially in the technology and consumer products sectors, Valerie sees her role as bridging the gap between in-house counsel and a traditional external law firm - by thinking more like her clients, and not just as an outside lawyer.
Hogan Lovells became a top 10 global legal services provider on 1 May 2010 through an unprecedented combination of two firms with international credentials, U.S.-based firm Hogan & Hartson and European-based firm Lovells. Modern-day Hogan Lovells carries on the tradition of excellence established by our founders and further builds on their legacy.
Written by Jaya Harrar
Lawyer Monthly had the pleasure of speaking with Dr Katherine Theodotou earlier this month; Katherine is an impressive professional who has not only had significant impact in the legal industry, but also in her work as a human rights activist. She has dedicated her life’s work to supporting and assisting those that are in need of help, as well as ensuring that the rights of others are protected, regardless of race, background or creed. This month we catch up with Katherine, who shares a little about her background, her current work and her campaign: Justice for Lawyers.
As a Game Changer in the legal profession, Katherine is constantly working on something new, ensuring she is fighting all corners for the rights to justice. During this month’s catch up, Katherine’s main concern involves the regulatory bodies in the legal industry.
Her homely office is situated in the heart of a friendly estate, surrounded by the beauty of multiculturalism; even in the busy nature of London, Katherine has managed to surround herself in an atmosphere to which truly depicts her personal nature. Amidst it all, I felt far away from the usual corporate, white-collar atmosphere that any other law firm boasts, and felt at home; the walls covered with certificates of achievements and photos with iconic individuals sprung a huge list of questions in my mind to ask Katherine.
Whilst giving me a personal tour of her office, Katherine proudly presents visible proof of the sheer amount of cases she has worked on. From top to bottom, three out of the four walls are covered with shelves packed with folders – each one representing a case Katherine has previously addressed. “Many of these cases had previously been rejected and I was told on many accounts to not take them on,” she explains, whilst I stare in awe over the sheer amount of work showcased on the walls.
Nonetheless, this is what sparked the basis of Katherine’s concern. Each legal professional wants to do right beside their client and not solely for their own personal gratification. Winning a challenging case not only proves your expertise, but also speaks volumes for the rights of others. But Katherine has been under the spotlight a few times for this reason.
She begins to explain, “I took them on because I had faith there was a way through. And I managed to win each one”, but this is where Katherine touches on a subject which she spoke about previously: “Regardless of trying my hardest, I still got scrutiny from authorities.”
When we last spoke at the start of the year, Katherine spoke about the Solicitors Regulation Authority (SRA) and how she is pushing for a better system and regulatory body. Being a bilateral lawyer, she is exposed to how two different countries work in regard to their legal system. “The Law Society and the SRA are two bodies people refer to in the UK. They are relatively independent from each other and have their own way of doing things. What we need is one system, which will benefit us all.”
Katherine is not shy to admit that she has often been subject to scrutiny under the SRA: “I truly believe they see that I am a bilateral lawyer and feel that I must be doing something dodgy. I say this as I am not the only one, I know many other lawyers who are under investigation and feel they have been wrongly accused. Majority of them are ethnic minorities.”
Katherine explains with passion, the reason she has decided to campaign for this and founded: Justice for Lawyers. “As you can see”, she explains whilst pointing to the vast amount of files around us, “I have a lot of work to do and I am constantly taking on new cases. The last thing I need, or anybody needs, is a regulatory body barging in, disrupting my work with very little evidence showing they have the right to do so.”
Katherine expands on this, explaining how when a complaint is presented to the SRA, they have no system in place to how they handle the situation. “If they come in and say, ‘we have had this complaint and we need these documents and a time and place to discuss the issue at hand’ there would be less of a problem. But they do not handle these cases in such a way and instead take action before examining the issue at hand.
“They put my work on hold, to obviously eventually find out that I have not done anything wrong. And I am not the only one that has had this issue. There really ought to be a better way to handle such things.”
With Katherine clearly having a very strong opinion about this, I decide to ask her what she thinks is the best way to handle such a situation.
“What we need is democracy in the legal profession. It works better this way, obviously”, she explains. Her suggested idea involved an electoral system: “What we need is a body of authorities that are elected and not simply chosen. Lawyers have the right to know who governs them and their intentions. There needs to be a better voice for independent firms, not just the top law firms.”
That is not the only issue Katherine has; as previously mentioned, she has stated that a lot of these cases which are often under scrutiny, she has paid out of her own pocket. “There are these huge legal fees associated with cases. Where does the money go? Usually to the barristers. I don’t think there is any need for legal fees to be so expensive. I think there should be a lower cap on how much people can charge.”
We both agreed on the fact that it is usually the disadvantaged, those who may not have the money, who often need to seek litigation due to unfair treatment, yet as Katherine simply stated: “Nobody can go to the court today when they are charging £600 an hour.”
Nevertheless, as we have learnt, Katherine is never one to stand down from voicing her true opinion, “They claim they will take action and demand to take my files, close my firm, without any authority to do so. I stood up to them, but how many people would do the same?”.
What happens to those who do not have the same gusto as Katherine? They shut down their firm. “This is why the small firms are closing down; if you fail to meet their demands they shut you down. I worked through it by organising my time in such a way: up until 12am, I work on my legal cases and from 12am to 4am, I would work through the vast amount of files the SRA required me to.”
Katherine urged that anyone who had suffered with a problem with the SRA, to approach her. She said “What we want to do is change the regime; I am taking part in the Law Exhibition in September, and I am urging people to join, because we are campaigning to change the regime.”
I began to wonder who was subject to such discrimination; Katherine states how she is bilateral and often assumed that as she is based in two countries, that she could be prone to committing fraud, however this is not always the case. “There are non-bilateral lawyers this has happened to, but it tends to be ethnic minorities. In fact, the SRA have been to court several times, on the account of racism.
“I know of a Nigerian barrister who returned from court after a case to find his firm locked up by the SRA. He took his case to court and won, because obviously they were in the wrong.”
Such behaviour allows us to address the issue which the legal sector has been battling with for a while; the prevailing notion that the field favours white, upper class people and is less welcoming towards diversity.
“The legal sector is still very ‘cliquey’, and something ought to be done. We are all here to serve the law and the law serves the community. I believe that the SRA are disallowing it”, Katherine states.
The disorganisation of the SRA spreads to the nature of how they undergo their regulations. According to Katherine, not only does the authority have a very weak method of seeking action towards a complaint, but they quite often alter their rules, she says: “One rule that was implied last week, is not there the following week, which creates a lot of confusion.”
To solve a problem, you must thoroughly examine the situation at hand and this is where Katherine believes the SRA is at fault. She addresses a more controversial issue: “An ombudsman can get paid around £50,000 a year. Their high salary allows them to not address the issue in the way that they probably should.”
Katherine even stated how labour party leader Jeremy Corbyn, who has been a good friend of hers for many years, believes there needs to be better equality in the system. In fact, the two meet often to discuss issues around the inequality and injustice placed in society. In order for Katherine to stay true to being a Game Changer in the legal world, she has taken fearless risk to stand up for what she truly believes.
“I am not a hypocrite; I will always ensure my actions meet my words. When I went to the convention in Prague, which had been organised by small firms, the topic was of course open for discussion regarding the SRA changes and what the law society is doing about it; I stood up and spoke about how my firm in the UK is under constant investigation - where I have to defend what I am doing to people who do not know what I am actually doing -, but my firm in Cyprus is progressing well.
Even the president of The Law Society agrees that the SRA needs reconstructing. Nevertheless, I am not one of these people who speaks about something and do nothing”, she says. After passionately voicing her opinion on how the SRA needs to vastly improve to all those at the Prague Convention, Katherine received a standing ovation. “I spoke my voice and got a standing ovation, as people agree something needs to change”, she says, also discussing the importance behind her campaign: “You fight for justice for people, but you need justice for yourself; you can only fight for the rights if you have the system supporting you.”
As the afternoon went on, me and Katherine spoke deeply about the many issues those in dire need of justice face. Funnily enough, each problem related back to money. As I said, “Money is really the thing making this world go round.” Where the stereotype of a successful lawyer typically involves elaborate materialistic items, Katherine sees no interest in such things, as the simplest of things fulfils her. And as previously mentioned, her passion for equality extends in every aspect; the most enjoyable part of my visit were the furry workers in her office. “I have taken in stray and abandoned cats, as many tend to get ruthlessly run over in this area,” she explains. Even though we were meeting to discuss her achievements in the legal sector, we often got distracted discussing matters related to dogs, especially Highgate Hill’s office puppy. My personal favourite quote from Katherine herself, which nicely concludes why she is an important Game Changer in the legal field and human rights: “Look after the world, all living things alike. Everyone and everything deserves a life and we shouldn’t let man ruin that.”
Criminal defense is an art form, according to Attorney David Jolly. He says: “When we go to trial we tell stories in a manner that will persuade 6 or 12 complete strangers- the Jury. I think the best criminal defence attorneys have a very creative side to them and the ability to think around a problem differentiates the average and superior defense lawyers. This art form – the ability to advocate in a manner that protects and defends a client in a unique and thoughtful way – is our greatest and most rewarding challenge. This is why I am a lawyer.”
He speaks with Lawyer Monthly about his challenging role and how he sees DUI regulations changing.
Can you share with Lawyer Monthly the most challenging types of cases you are faced with?
The most challenging cases I defend are those cases where my client has prior criminal history of significance or, most notably, when my client has prior DUI charges or convictions. In such cases when my client is charged with a new driving under the influence offence but has prior DUI convictions, the prosecutors rarely give offers that would incentivise my client to plead. In such circumstances, I know we are in for a long, hard and often frustrating battle.
How do you overcome these challenges to ensure you receive the best result for your clients?
When faced with a challenging case I find three things help tremendously: 1) experience – there are not too many legal challenges that I have not encountered in my 20 years of criminal law practice; 2) knowledge – because my primary focus is DUI defence, I am aware of novel cases and legal defences that other less experienced attorneys are nor familiar with; 3) creativity – there is still room to be creative in criminal defense and thinking outside of the box has saved many cases and helped many clients.
What mistakes/misconceptions do clients often have when faced with a charge? Where do they often go wrong and how do you advise them accordingly?
The most common mistake a client has is thinking that a lack of criminal history will result in a reduction of the crime and no jail. While lack of criminal history helps in many instances and can mitigate the damage to a degree, the lack of criminal history often has little significance in a case. I am transparent with my clients from the beginning and provide a roadmap of where their case may go in the legal sphere and what they can do to help their own cause. Honesty from the beginning often cures clients of misconceptions. What I also find helpful is providing clients with information – in my case, I provide every client with a book that details the DUI process from beginning to end.
How have the occurrence of DUI offences changed? Is there anything you think could be done to ensure they are reduced?
When I first started practicing law in 1997, the “per se” legal limit for DUI in most States in the US was 0.10. The “per se” limit was reduced to 0.08 in 1999 and I suspect the limit will be reduced in many States, including Washington State, to 0.05 in the very near future. In fact Utah, just lowered their legal limit to 0.05. Such a reduction may initially increase the number of DUI arrests but I think eventually the community will realise that the only “safe” way to drive is with no alcohol (or drugs) in the body.
That being said, the biggest change in my 20 years of practice is with Drug DUIs. Marijuana is now legal in many States, including my home state of Washington. The DUI statute now includes a “per se” limit of 5 nanograms of THC for marijuana. However, I believe the biggest change in DUI practice is the Drug DUI (non-marijuana) case. We are seeing many drug DUIs now and frankly, I don’t think law enforcement is properly trained and equipped to investigate and process these DUI cases.
I wrote the first two books on these subjects, The Drug DUI Handbook in 2011 and The Marijuana DUI Handbook in 2014.
Regarding immigration law – how has this changed throughout your years of practice?
I did write a book on immigration law and criminal convictions because, as a criminal defence attorney I must know some basics. The most important thing about immigration law is that it is changing rapidly in the USA. The new administration has promised significant changes and we are seeing those changes in the court systems and jails. The second important thing is that we must advise clients of the potential immigration consequences of a conviction and, that they are advised to consult with an immigration attorney. Most pleas in criminal courts now include specific language that warns the individual that a plea to a crime may result in deportation, exclusion from admission or denial of naturalisation. As such, we are seeing the importance of immigration issues on a daily basis in the court system.
David Jolly
Attorney
+425 493-1115
+360 336-8722
david@davidjollylaw.com
I am a criminal defense attorney based in Washington State. In my more than 20 years of practice I have appeared in more than 50 different courts. I wrote my first legal book, The DUI Handbook for the Accused in 2007, and since that time have written more than 20 additional legal books. I believe that every person deserves empathetic and superior representation and at the core of every defendant, is a decent human being. My job as an attorney is to communicate this very fact with Prosecutors, Juries and Judges. This is a job I take very seriously.
The Law Firm of David N. Jolly was formed with the belief that a new type of law firm was needed in today’s day and age. Our vision centers on providing outstanding results gained from an experienced team of professionals with personal attention to the client and uncompromising integrity. More than just words, every attorney, paralegal, and staff member at the Law Firm of David N. Jolly is dedicated to meeting the needs of the client.
