Understand Your Rights. Solve Your Legal Problems
The Ministry of Justice today announced new measures to inject up to £51 million per year into criminal legal aid.
The MoJ had launched a review of criminal legal fee schemes at the beginning of 2019. The Lord Chancellor, Robert Buckland, acknowledged in a foreword to the government’s consultation response that the department’s response had been delayed by the COVID-19 pandemic. However, he expressed optimism that the new measures – which he referred to as “quick wins” – will allow the ministry to “inject an additional £35m to £51m per year into criminal legal aid”.
In addition to adopting almost all of the measures proposed in the consultation, the Lord Chancellor unexpectedly announced that an independent review would be opened into the criminal legal aid system in its entirety.
The measures were welcomed by legal bodies, though analysts emphasised the need for further support.
Amanda Pinto QC, Chair of the Bar Council, said in a statement: “This money is desperately needed and long overdue for criminal legal aid barristers, who do crucial work in the public interest and, having been badly hit by years of cuts, have suffered drastic loss of work during the pandemic.”
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She added that, while she was pleased that barristers would receive due compensation for their work under the new measures, “Nonetheless, the rates of pay must be revisited as part of the wider independent review, which we look forward to engaging with, to ensure the sustainability of this vital provision.”
Simon Davis, President of the Law Society, stated: “the criminal legal aid fee increases announced [today] are a welcome small step in the right direction after two-and-a-half decades without a rise in funding.”
Since the start of lockdown, business leaders have been forced to use agile decision-making to help their organisations survive. However, a failure to effectively respond to the crisis could see an increase in claims from aggrieved shareholders.
So, how can directors ensure that shareholders are on board with decision-making during the crisis and what should they do if they find themselves facing a dispute? Barry Jervis, partner and head of dispute resolution at law firm Shakespeare Martineau, offers his advice on how company heads can avoid litigation.
During the pandemic, company directors have been forced to take fast action to build resilience, keep up continuity and maintain a healthy financial position. From adapting business models in line with changing consumer habits to following government guidance and taking advantage of emergency funding, they have had to become used to rapidly introducing contingency measures and making tough decisions. However, with the significant financial impact of COVID-19 already evident from the news agenda, high-level decision-making is likely to come under far greater scrutiny in the coming months and company shareholders that believe not enough was done to protect the business’s bottom line might file claims against their directors.
At the start of lockdown, some business leaders may have gone into “panic mode” and made rash or ill-informed decisions, such as taking out emergency funding, despite such finance being at significantly higher rates than normal. In the long-term, this could have a significant negative impact on the business’ financial position. Similarly, a common misconception that government-backed business loans represent “free money” may have resulted in some directors taking a relaxed approach to company spending during the crisis, rather than tightening their belts. When taking such measures, it’s vital to bear in mind that all directors are ultimately accountable to the company’s shareholders and that any decisions they make could have long-term implications.
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Where shareholders feel that there is evidence of corporate mismanagement having taken place during the pandemic, they may choose to file an “unfair prejudice” claim (if the directors are shareholders) or a derivative claim against the business’s directors. Under the Companies Act 2006, shareholders can use a derivative action when they believe that any form of business taken by a director was not performed in the interests of their fellow shareholders. These claims protect from “fraud on the minority” when the individual a claim is being brought against is in control of the company.
Directors of companies experiencing financial pressure as a result of coronavirus may also have been tempted to keep on trading, in the hope of turning their fortunes around. However, this runs the risk of committing wrongful trading. Under the Insolvency Act 1986, once a director should have concluded that there is no reasonable prospect of their company avoiding an insolvent position, they have a duty to take steps to minimise potential loss to the company’s creditors. If shareholders have reason to believe that wrongful trading has taken place, they may choose to report the directors to relevant authorities. This could ultimately result in the directors being prosecuted.
In order to protect against shareholder claims following a crisis, it’s vital for directors not to lose sight of the fact that they are ultimately answerable to shareholders in all of their decision-making. As such, it is important to be able to back up their choices with logical reasoning and good financial grounding.
A good question to keep in mind is: “Would I be able to justify this in a court of law?” It is also good practice to ensure thorough record-keeping, clearly documenting why any business measures were taken. Keeping active and open lines of communication with the company’s shareholders will also help to avoid potential disputes by ensuring that shareholders are on board with business changes from the start.
A good question to keep in mind is: “Would I be able to justify this in a court of law?”
Seeking expert legal advice from specialists with experience in helping businesses to resolve commercial disputes at an early stage is also crucial, to secure the fairest possible outcome for all parties. As it may also be necessary to get the support of a forensic accountant, ensuring that financial evidence, such as figures for losses and predicted revenues, is available to assist in any dispute is key.
One of the major challenges facing the UK courts following the pandemic will be the question of whether instances of financial fallout are truly the result of COVID-19, or simply poor governance on behalf of company directors. By being keeping shareholders front of mind when making business decisions and ensuring choices are supported by logical judgements, leaders stand the best chance of avoiding any commercial disputes which could arise once the pandemic comes to an end.
Without well-developed structures, there would be no capacity for innovation. Even without realising it, everything we do daily is suspended on a backdrop of legal procedures and the inherent possibility of litigation.
The legal service market remains one of the largest globally, nearing the $1 trillion mark. Yet it remains utterly under-digitised and slow in adopting new technologies. New changes are underway, though, as Artificial Intelligence is set to transform the legal fraternity in numerous ways.
In so many ways, the law appears ready for AI and Machine Learning applications. Machine learning and law are co-related in the sense that they both consider historical examples for them to infer rules that can be applied to new situations.
In the legal field, a number of areas already stand out as promising for AI, and great progress is being made in each.
Contracts are essential components of modern business, and transactions cannot be completed without them. Still, the entire process of negotiating and finalizing these contracts remain tedious.
Lawyers from both sides must take time to review and edit documents in endless iterations manually. These processes can take a lot of time to complete, delaying deals, delaying business objectives in the end. Human errors leading to costly mistakes are common, which is expected as lawyers are expected to peruse hundreds of pages.
It is a massive opportunity to get this process automated. Several startups have been working on achieving the vision, developing AI systems that will be able to automatically ingest contract proposals, analyze them using natural language processing (NLP) technology, before determining the acceptable and non-acceptable parts of each contract.
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It all begins with negotiating and signing a contract. The biggest challenge, however, is staying on top of the terms and obligations agreed upon. It is a challenge that cuts across organisations of all scales, where large companies will have heaps of outstanding contracts with hundreds of partners across multiple internal divisions.
As it stands, companies, in most cases, operate in the dark as to what their contractual details entail. Artificial Intelligence offers a handy opportunity to get this problem solved once and for all. Solutions powered by NLP will extract and contextualise critical details of each contract involving a company, which in turn will make it straightforward for stakeholders in organisations to understand their business commitments.
These solutions are set to unlock numerous business opportunities. Various organisation departments will gain total control of their portfolios. For example, sales teams will be able to track times for contract renewals; thus, they can capitalise on upsell opportunities. Similarly, procurement teams will stay ahead on all the details of existing contracts, allowing them to renegotiate when necessary.
There are more areas where AI will impact on legal processes. A good example is the prediction of litigation. Already, AI teams are developing machine learning models that allow them to predict outcomes of pending court cases using particular fact patterns.
AI is also making progress in legal research. A historically manual process is going fully digital, and lawyers can do their research using dedicated computer programs like Westlaw and LexisNexis.
The US Court of Appeals for the Ninth Circuit affirmed on Wednesday that Amazon delivery drivers fall within the Federal Arbitration Act’s exemption for interstate transportation workers.
In a 2-1 ruling, the Ninth Circuit upheld an April 2019 decision by US District Judge John C Coughenour rejecting a joint bid by Amazon.com and Amazon Logistics to force a group of 10,000 drivers, led by Bernadean Rittman, to arbitrate their class action alleging that the company misclassified them as independent contractors.
The majority agreed with Coughenour’s assessment that “last mile” delivery drivers did not have to physically cross state lines during their work in order to participate in interstate commerce as outlined by the Federal Arbitration Act.
Section 1 of the Act exempts "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce," from arbitration, but does not offer a definition for the phrase “engaged with interstate commerce” or what “other class of workers” might fall under the exemption.
The Ninth Circuit majority rejected Amazon’s argument that drivers delivering goods in-state were not “engaged with interstate commerce” even if those goods originated from another state.
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"The fact that the phrases 'employed in commerce' or 'engaged in commerce' have not been interpreted to require businesses or employees to cross state lines persuades us that Amazon's unduly restrictive construction of the phrase is unwarranted," the majority stated in its opinion.
However, Circuit Judge Daniel A Bress dissented, arguing that the majority decision created problematic implications regarding “workability and fairness” by vaguely defining what it means to engage in interstate commerce. "The majority's contrary reading is less supported in the statutory text and invites difficult line-drawing problems," he said.
"Seeking to resist the logical implication of its holding — under which the FAA's narrow transportation worker exemption could broadly include anyone who delivers goods between any two locations — the majority constructs a new FAA doctrine under which the exemption turns on the supposed 'continuity' of the interstate commerce and where items 'come to rest.'”
Shannon Liss-Riordan of Lichten & LIss-Riordan PC, representing the delivery drivers, said in a statement on Wednesday that she was “very pleased with this significant victory which exempts transportation workers, such as Amazon delivery drivers, from the Federal Arbitration Act.”
Martin Sugden, CEO of Boldon James, a HelpSystems company, offers Lawyer Monthly his predictions on what the California legislation portends for the future of compliance.
Last month saw the California Consumer Privacy Act (CCPA) enter the enforcement phase on 1st July, despite lobbying from some business groups to delay it, with many stating that owing to the impact of COVID-19, they wouldn’t be able to dedicate the manpower, resources and time to CCPA in order to prepare for it.
The implementation means that California’s Attorney General (AG) will be able to take direct action against businesses that violate the privacy protection requirements of the CCPA. The law has been in effect since 1st January 2020, but until now enforcement was limited to civil actions brought by consumers against violators.
Over the last few months, the AG’s office has been busy finalising how to assess penalties, how to define a breach and how to justify the size of a fine levied for violating the CCPA. Already, the extent to which businesses are concerned about meeting these new regulations is evidenced by the calls to delay the start of enforcement. However, California’s Attorney General Xavier Becerra was unmoved on the timing, stating that enforcement of the regulation would commence as planned and saying: "We encourage businesses to be particularly mindful of data security in this time of emergency."
Already, the extent to which businesses are concerned about meeting these new regulations is evidenced by the calls to delay the start of enforcement.
For those less familiar, the CCPA is a state-wide data privacy law that regulates how businesses all over the world can handle the personal information (PI) of California residents. It is the US (Californian) counterpart of the European General Data Protection Regulation (GDPR) which came into force in May 2018. However, the difference between GDPR and CCPA is that the CCPA's definition is extra-personal, meaning that it includes data that is not specific to an individual, but is categorised as household data, whereas the GDPR remains exclusively individual.
Not long ago organisations operated closed systems, with most data processing taking place in their own environment and the ability to communicate directly with the outside world limited to email and telephone. The data protection laws in place then were benign, with only repeat or very serious offenders receiving a fine. The data protection landscape and its associated compliance environment changed fundamentally with the implementation of the GDPR, with many other privacy regulations following suit around the globe. California is the first US state to address the issue, however, Singapore, India and many other large economies have already published GDPR equivalents each with their own local flavour.
Now that CCPA is in force, it will be interesting to see what size of fines and types of action will be issued. It was about a year after the launch of GDPR, that the first fines were issued by the ICO and they left no one in any doubt that this regulation has teeth. Record financial penalties for organisations such as Google, Facebook, Marriott and British Airways were a salutary lesson to businesses across the board that they cannot afford to fail against these regulations. Increasing public awareness of privacy rights means the damage is not just financial, but reputational too, a factor that is infinitely more difficult to measure, but can be catastrophic and long-lasting.
Now that CCPA is in force, it will be interesting to see what size of fines and types of action will be issued.
The tone from the various regulatory bodies’ communications around COVID-19 indicates that businesses cannot afford to take their eye off the data protection ball, even during these challenging times and California having gone ahead of the other states is clearly serious about data protetction.
When it comes to privacy, most countries have aligned to the standard of GDPR with some appropriate domestic legislation incorporated, such as I’ve indicated above with regard to CCPA. Therefore, I would say that if organisations work to incorporate GDPR requirements - including the mandate to ensure data protection by design and default - into their compliance regime, they won’t go far wrong.
So how do you comply and get some value for your organisation? While compliance with data protection regulations is non-negotiable and the penalties for failure are severe, it is a mistake to see compliance solely as an inevitable burden. With an intelligent and proactive approach, organisations can pivot from viewing compliance only as an expense and turn it into a positive competitive differentiator and one that, over the long term, will deliver efficiencies and cost reductions.
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With this in mind, what steps should organisations take to sensibly adopt a better data protection posture and with it, build a firm foundation towards onward compliance? This is where data classification is a robust and critical first step in any compliance and data protection strategy. Data classification is defined as a tool for the categorisation of data to enable organisations to effectively answer questions around what data types are available and where and how certain data is located, shared, and used. Here at Boldon James we have been helping organisations for over 35 years put in place the right data classification and secure messaging, to meet their compliance objectives. Therefore, as CCPA is now in force, I thought it would be helpful to share a few pointers to home in on when looking at data classification and your compliance strategy:
It will be interesting to see how CCPA is adopted and how draconian the first few fines are. Hopefully, the pointers I’ve outlined above will set you on the right path and keep your business out of the headlines. If you are interested in finding out more about how data classification can help, why not download our whitepaper Classification By Design: The Foundation of Effective Data Protection Compliance.
Martin Bryant, founder of tech and media consultancy firm Big Revolution, is leading the class action suit on behalf of English- and Welsh-domiciled guests after the personal details of roughly 393 million Marriott customers were compromised by a data breach between 2014 and 2018.
“I hope this case will raise awareness of the value of our personal data, result in fair compensation for those of us who have fallen foul of Marriott’s vast and long-lasting data breach, and also serve notice to other data owners that they must hold our data responsibly,” he said in a statement.
The suit seeks unspecified damages for the loss of personal data, which potentially includes passport and credit card information. The suit automatically includes people who made a reservation at a former Starwood brand hotel before 10 September 2018, including Sheraton Hotels & Resorts and St. Regis hotels.
Marriott announced in 2018 that it had notified the FBI following a data breach which saw hackers gain access to the reservation database of Starwood hotels, which it had bought in 2016.
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This latest legal action follows a £99 million fine levied against Marriott by the UK data watchdog last year over the breach. The Information Commissioner’s Office (ICO) said that roughly 7 million UK guests were affected by the breach.
In a statement, the ICO said Marriott “failed to undertake sufficient due diligence when it bought Starwood and should also have done more to secure its systems”.
Bryant will be represented by law firm Hausfeld, and the case funded by Harbour Litigation.
Francine Ryan, Senior Lecturer in Law and member of the Open Justice Centre at The Open University, sheds light on some of the career opportunities available to law grads.
What have Gerard Butler, Slaven Bilic, John Cleese, and Rebel Wilson got in common? You might be surprised to learn… they all have a law degree! You might not want to pursue a career in law or be an actor or a football manager, but law is a gateway to many other job opportunities. A law degree is a highly regarded undergraduate qualification - it teaches you analytical, critical thinking, and research skills that are transferable across many professional disciplines. You might want to explore some other career options that are related to a law degree or you might want to think more broadly. A good way to start this process is through an internship.
Sometimes it is hard to know what a job might look like before you begin. To get a better understanding of what’s involved, think about applying for an internship. Internships offer a real opportunity to gain work experience and find out whether a role could lead to the right career for you. Thomson Reuters advertise for a variety of different internships, including roles within professional services, sales, and journalism. Internships allow you to build confidence, help to develop your CV, create a network of contacts, and provide a useful introduction into a career you might want to pursue.
As well as internships for undergraduate students there is a range of graduate internships that you can apply for. It is a good idea to think about the types of organisations you would like to work for and what kind of skills you want to develop. COVID-19 has impacted on the availability of internships, but many employers are offering virtual internships.
Internships offer a real opportunity to gain work experience and find out whether a role could lead to the right career for you.
When travel is easier you could consider pursuing an internship abroad. Not only is it a great opportunity to travel and live in a different country, but it may open up areas of work that you hadn’t considered before.
It is important to remember that new career choices are opening up all the time and most people will have many different jobs during their working lives. There will be lots of opportunities to reinvent yourself. As technological advancements disrupt different industries everyone might have to be more flexible and agile in their approach to work. Do not worry if you have not decided on the right career for you; workers spend an average of 3,515 days at work over the course of their lifetime, so there is plenty time to think and reflect on what is right for you.
Once you have had the opportunity to explore an internship here are some alternative careers you might want to consider:
The fast stream is the leadership development programme that is open to graduates with 2:2 as well as 2:1 and first class degrees. You can choose from 15 different schemes that include departments such as the Diplomatic Service, Houses of Parliament, and Government Social Research. There are a wide range of options that you can find more about by visiting their website and there is also the option of applying for internship opportunities.
Members of Parliament employ people to work in their constituency office, the type of skills you need include excellent written and communication skills, and experience of problem solving all of which you will have developed through your law degree. MPs recruit a variety of different roles from researcher to constituency caseworker. If you are interested in these types of jobs, you might also consider a career in political engagement as a lobbyist or as a policy advisor. The w4mp website has details of these types of jobs.
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If you want to explore an international career, think about applying for the Junior Professional Office Programme. Law is one of the disciplines relevant for the United Nations JPO Programme, which recruits for the UN Secretariat.
You might be attracted to a career with MI6 - they recruit for a variety of different roles including intelligence officers and corporate services where you could be working in procurement, finance or legal. The Secret Intelligence Service website has more information on the careers available.
Think about what your interests are and use that as a starting point for jobs and careers, a law degree is a highly respected qualification, so you are well placed to pursue new opportunities.
A ruling by the US District court for the district of Delaware, dated 10 August and unsealed on Monday, upheld the validity of a patent for Novartis’s MS drug Gilenya and rejected a lawsuit from HEC and backed by other generic drugmakers claiming that the patent was no longer valid.
In the ruling, the court stated that HEC had written an Abbreviated New Drug Application (ANDA) to the U.S. Food and Drug Administration (FDA) seeking the body’s approval to create a generic copy of Gilenya before the expiration of Novartis’s patent.
A decade after its approval by the FDA, Gilenya is Novartis’s second-largest revenue generator, having brought in sales revenue of over $3.2 billion during 2019. Novartis’s highest earner, its immunosuppressant drug Cosentyx, accrued $3.5 billion during the same year.
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Novartis had entered into settlement agreements with other organisations to produce generic copies of the Gilenya drug before the expiration of its patent, though the terms of these agreements – including when the generics would be allowed – were not explored in the court ruling.
In December, the FDA approved three generic copies of the Gilenya drug.
Lawyer Monthly hears from Francine Ryan, Senior Lecturer in Law and member of the Open Justice Centre at The Open University, on how first-time legal jobseekers can stand out from the pack.
There is no doubt that the coronavirus pandemic is having an impact on the graduate job market and trainee and pupillage recruitment. However, it is not all bad news, as many firms are still recruiting. In order to apply for a job, you often need a CV. CV is an abbreviation of curriculum vitae, which is Latin for ‘course of life’. It is a written overview of your education, qualifications, work experience, and skills. In these challenging times your CV is even more important, it is your opportunity to showcase your talents and make you stand out from the crowd.
Here are some tips to help you perfect your CV:
Many law firms receive over 1000 applications for trainee and vacation scheme placements. To make sure you are one of the few that secure an interview, it is essential that your CV is well-presented. Choose a font that is easy to read, and once you have decided on your layout, make sure it is consistent. Think carefully about:
Many law firms receive over 1000 applications for trainee and vacation scheme placements.
There is no one right way to do this. Your CV tells a story. Think about what you want to convey to the reader. Your CV has to be more than a list of what you have done and your qualifications. You need to explain what you have learned, and what skills you have developed from what you have achieved. One approach might be to group together information such as education and qualifications, work experience, extra-curricular activities, and your interests.
Alternatively, you might want sections on your CV that highlight your experience and your commitment to a particular job. For example, if you are pursuing a career at the Bar you could have a section on your CV called ‘Professional and volunteering experience’. You could group activities such as mooting competitions, volunteering at your local Citizens Advice and mini pupillages under that heading.
When you write your CV, mirror the language the employer uses in the job description. This is a way of demonstrating you are the right person for the role. You might want to draft different versions of your CV to find the structure that works best for you.
Your interests and hobbies are an important element of your CV. If you have an unusual hobby or, for example, you have travelled, it is a great opportunity to show how you have developed relevant skills that will make your application stand out. Your interests and hobbies show a lot about you but avoid examples such as socialising with friends. The key is to write about them in a meaningful way to demonstrate teamwork, leadership or organisation skills. Also think about how they might be useful for an employer, so for example, highlight IT skills, speaking a foreign language, or driving skills.
At this point you are unlikely to have lots of experience to draw on so do not feel the need to fill up the space unnecessarily. A short, well written CV is much more effective than one that rambles on. It is important to check the specific guidance for each application, but generally a CV should be no more than 2 pages of A4.
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It might be tempting to embellish to make your CV appear more impressive, but employers often verify what you have included and if they find out you have lied then you may find your employment terminated. It is important that your CV reflects your profile on LinkedIn as employers often check.
Do not include a photo unless it is required. If you are asked to supply a photo it should be one that reflects your professional image.
Tailor your CV for each application rather than submitting a generic one. Go through the job specification and the company profile to ensure that your CV meets what the employer is looking for and submit exactly what is specified in the application. Make use of the support from your university careers service and have a look at the wealth of resources online, including CV templates.
Curtis Parfitt-Ford, an 18-year-old student, wrote a 22-page letter to the Office of Qualifications and Examinations Regulation decrying the system as “irrational, arbitrary, fails to take account of relevant considerations”, and claimed that it was unlawful. His aim in taking legal action, he wrote, was to “force [Ofqual] to come up with a fairer system”.
The Good Law Project is backing six other A-level students in a legal challenge against Ofqual, and has raised £60,000 via crowdfunding to cover their legal costs.
A-level and GCSE students were not able to sit exams this year due to the COVID-19 pandemic and ensuing social distancing measures rendering traditional examination methods impossible. Their results were determined using Ofqual’s standardisation algorithm, which combined teachers’ predicted grades with historical performance data from schools and colleges.
Figures from Ofqual show that around 39.1% of teachers’ predicted grades were lowered by at least one level upon results being issued. Pupils in disadvantaged areas were disproportionately affected by the downgrading.
Education Secretary Gavin Williamson has ruled out England following the route of Scotland, which threw out algorithm-generated results on Tuesday and has stated that it plans to follow teacher assessments instead.
“If you don’t go to a successful school you don’t deserve to succeed either – strip away all the science and that’s what’s delivered by the system Ofqual and Gavin Williamson have put in place,” said Jolyon Maugham, director of the Good Law Project.
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“It’s not fair, it’s not good enough, and hard-working students should not have to stand for it.”
Further confusion was created as Ofqual withdrew its guidance on appealing against A-level and GCSE grades using mock exam results within hours of publishing it on Saturday. In a brief statement, the body said that the guidance was “being reviewed”, with further information to be released “in due course”.
Dan Rosenberg, an education lawyer at Simpson Millar, spoke of the “emotional distress” experienced by the A-level students he is representing. “We would urge the government to act quickly to resolve this matter and to make sure that those who are still awaiting their GCSE results later this week do not have to suffer in the same way,” he said.
