Pro Bono work is a feat most industry climbers have to face, but as a budding lawyer, how important is it to do ‘free work’? Here Emma Jones, lecturer in law and member of the Open Justice team at the Open University talks Lawyer Monthly through the concepts behind pro bono legal work and the impact it can have on one’s career progression.

The short answer is yes.

Pro bono work, or work undertaken “for the public good,” is an integral part of law and the legal profession. Most large law firms and organisations have a formal programme of pro bono work for their employees to participate in. Many smaller firms and bodies also have either formal, or more informal, schemes in place and encourage such activities.

For many involved in such work there is a sense of “giving something back” to the community. As law students and lawyers, we have valuable knowledge and skills which relatively few people possess. Therefore, some would argue we have a form of moral or societal obligation to use these legal capabilities to promote social justice by assisting those in need. Of course, there is also evidence that acting in an altruistic manner, with a motivation to help people, is great for your own wellbeing too!

Many law schools in the UK also have clinical legal education programmes, enabling their students to undertake pro bono work. This may be in an extra-curricular form, or as part of an assessed course. Although social justice is a significant motivation for this work, it also reflects an increasing recognition of the valuable legal skills and experience that pro bono work provides. For law students it means you can gain practice in applying existing legal skills in new contexts. For example, you may be used to researching the law for assignments, but undertaking practical legal research and applying it to ‘real life’ situations involves taking into account a much wider range of practical considerations and sources.

In addition, pro bono work gives you the opportunity to develop new skills that don’t usually feature in an undergraduate law degree. For example, practising interviewing clients, presenting to different bodies of people and writing and drafting legal documents. If you decide to go into legal practice, you will be able to demonstrate that you have practised and honed a wide range of legal skills. If you don’t end up in the legal profession, you will find lots of these skills easily transfer to other work environments. As an illustration, virtually any role you undertake is likely to involve working in a team and communicating clearly, abilities that are key to pro bono work.

The experiences that pro bono work provides are also very valuable. It may be that it introduces you to a new area of law you’ve never considered before. It may alter some of your pre-conceptions of what legal practice will be like. It might make you think about other roles within the legal field that you’d previously discarded, for example, teaching law.

To sum up, pro bono work is valuable in many ways. If you are offered an opportunity to do pro bono work, grab it with both hands. If you haven’t been given the chance yet, start to explore potential opportunities near you (a simple internet search is a great starting point). In terms of both public and personal good, it offers real benefits for all.

New Zealand’s High Court has ruled that the country’s main conservative political party are guilty of misappropriating the song Lose Yourself by US rapper Eminem.

Judge Helen Cull, who made the ruling, determined that the National Party would have to pay NZ$600,000 (£314,000) to Eight Mile Style, Eminem’s music publisher.

The political party had used a song in an advert in 2014 which the court ruled bore similarities and style to Eminem’s song. The song titled Eminem-esque was played over 186 times before it was pulled off air due to Eight Mile Style filing a law suit.

The party had stated the song used was purchased from a stock music library and was not in fact Eminem’s song. According to the Telegraph, the President of the party, Peter Goodfellow said: “We purchased the piece of production music from a reputable Australian-based music production library, who had purchased it from a US supplier.”

Here's the party's ad that ran in 2014.

Ms Cull said it was not a mere coincidence the composer of Eminem-esque was listening to Lose Yourself as he composed his song.

Garry Williams, who represented the plaintiff said that the song is rarely licensed and rights to it are “enormously valuable.” He also told the court: “Lose Yourself is a jewel in the crown of Eminem’s catalogue,” reports the Telegraph, emphasising how precious the song is to Eminem.

According to the Guardian, Adam Simpson of Simpsons Solicitors, who represented Eight Mile Style, said the ruling will have a big impact on the global music industry where copyright infringements are involved. He said this: “This decision is a warning to soundalike music producers and their clients everywhere. The ruling clarifies and confirms the rights of artists and songwriters. It sets a major precedent in New Zealand and will be influenced in Australia, the UK and elsewhere.”

Lose Yourself originally featured in the film 8 Mile and is one of Eminem’s biggest hits, receiving a Grammy in 2004 for best rap song and an Academy Award for best original song a year before in 2003.

This is not the first time the famous rapper has sued for infringement. Back in 2004 he sued technology giant Apple for using one of his songs in their television advert without permission.

The ruling has come at a tough time for the political party having recently lost the 2017 election to a coalition directed by the Liberal Labour Party.

Latest figures estimate that over 130,000 people living in the community aged 65+ have suffered financial abuse at some point since turning 65*. This, it would appear, is only the tip of a largely unreported financial abuse iceberg, according to David Lockwood of Finders International.

The UK’s current demographic is providing near perfect conditions for a hot bed of financial abuse among vulnerable adults. There are currently 850,000 people in the UK living with dementia. In the next decade this could increase to over one million, and by 2051 to two million**.  At the same time, nearly 300,000 people are diagnosed with cancer every year - a significant number of whom will be unable to manage their finances at some point during their illness***.

These frightening statistics do not marry up with the latest available figures from the Office of the Public Guardian that showed only 626,165 lasting power of attorneys (LPO) were registered in 2016/2017.

Melanie Christodoulou, solicitor at FurleyPage, advises that appointing a LPA should be the first port of call for anyone wanting their financial affairs to be managed by someone they wholly trust in the event that they lose capacity to do so themselves. However in the thousands of situations where there is no LPA in force, and often no next of kin it can fall on the local authority, usually after being alerted to the need by a social services team, to become ‘financial guardians’ for these vulnerable adults.

This has resulted in an all time record number of people being subject to deputyship orders - orders issued by the Court of Protection appointing a Deputy Decision Maker to manage the property and financial affairs of a person deemed not to have the capacity to do it themselves.

Figures for 2012/13 showed 45,804 deputyship orders. In 2016/17 that number has risen by 27 per cent to 58,205 (source: Office of Public Guardian), with roughly one third of these supervised by deputyship teams within local authorities in England and Wales.

The process is often complicated and requires local authorities, their deputyship teams and internal solicitors to progress lengthy applications, supported by key evidence, and then step in to manage all the financial affairs in that person’s best interest. Local authorities often act as a last resort where there is no one else willing or able to take control of an individual’s affairs.

Not surprisingly local authorities report that costs to manage all of this escalate and current arrangements of fixed fees simply don’t cover the expenditure required to deliver the service. Fixed fees for professional deputies (both Solicitors and Local authorities) were raised in 2017 following many years of stagnation, even so the levels often do not reflect the amount of work undertaken in many cases.

Former council corporate deputy and appointee, David Lockwood said: “This deputyship provision is very much needed, and as latest figure show demand is increasing at an unprecedented rate. Sadly the fees just do not cover the work undertaken in some cases.”

As local authorities struggle with budget cuts, Paul Cruickshanks, Court of Protection Costs manager at bSquared Costs Law, recommends applying to the Court of Protection to have your costs assessed by the Senior Courts Cost Office (SCCO).

He says: “The subject of applying to the SCCO for costs to be assessed and maximising their return is a recurring topic for many deputyship teams.   Rule 156 states that when P’s property and affairs are being dealt with, the costs are usually payable from P’s estate.  I would always recommend requesting an option to have your costs assessed.  The way in which costs are to be assessed can be more straightforward than one might expect, but authority from the Court of Protection is required.  You still maintain the option of taking fixed costs.”

Paul suggests the benefits of such an approach are twofold.

(1) In having your costs assessed, you are able to ensure that you are fairly remunerated for the important work you are undertaking.

(2) The SCCO has a duty to ensure that only costs reasonably incurred and proportionate in amount are payable by the protected party. By having your costs assessed, you can be sure that your client only pays what is fair and reasonable.

David Lockwood of Finders International said: “The role of deputyships, both independent and within local authorities, is vital to ensure vulnerable adults are not subjected to further financial abuse. Securing access to adequate funds to allow deputyship teams to provide this in-demand service is a direct reflection on how society looks after its must vulnerable.”

Source:

*CR/DH & Dept of Health study.

** Alzheimer’s Society.

*** according to research by the charity Macmillan.

Around ten months back, the US Supreme Court concluded that a previous ruling in favour of Apple was unjust and sent the case back to District Court. Now just last weekend, a District Court judge in California wrote in a retrial for the Apple Vs Samsung case surrounding three iPhone 3G patents.

The retrial date is to be decided on by the two tech giants by today (25^th October).

The patents in question relate to the "black rectangular front face of a phone with rounded corners," "the rectangular front face of a phone with rounded corners and a raised rim," and "the grid of 16 colourful icons on a black screen."

The decision ten months ago reflected the decision that damages should be readjusted in accordance with the court’s definition of ‘article of manufacture’, under section 289 of the Patent Act. It was decided that the term ‘article of manufacture’ could apply to both a product sold to a consumer as well as a component of said product.

According to the Jurist, Judge Lucy Koh of the US District Court concluded that:

“the jury instructions given at trial did not accurately reflect the law and that the instructions prejudiced Samsung by precluding the jury from considering whether the relevant article of manufacture for the purpose of [section] 289 was something other than the entire phone.”

In this retrial, a win for Apple would mean that hundreds of design patent owners could put forward very large lawsuits for all sorts of product components that are expensive to produce. The tech world, Silicon Valley and the legal sphere are all now keeping a watchful eye in this situation and the impending precedent that may come.

DLA Piper has advised China Eastern Airlines (CEA), one of the largest Chinese airlines operating domestic, regional and international routes, on its strategic investment in Euronext Paris listed Air France-KLM. CEA and another SkyTeam alliance member Delta Air Lines each acquired a 10 percent stake in AFK’s share capital within the framework of reserved capital increases totalling €751 million at a subscription price of €10 per share. The transaction closed on 3 October 2017.

The new partnership will help AFK secure more access to the booming Chinese air travel market, especially to Shanghai, where CEA is headquartered, also China's biggest business market. It will also help strengthen AFK's’ control over trans-Atlantic flights.

DLA Piper's Corporate and Regulatory practices advised CEA across multiple jurisdictions with a team led by Li Qiang and Stewart Wang (Shanghai), Jeremy Scemama (Paris), Casper Hamersma and Laura Smit (Amsterdam) and Alexandra Kamerling (Brussels). Other team members included Joyce Du and Lily Li (Shanghai), Arnaud Lafarge and Radu Valeanu (Paris), Paul Lee and Fion Law in (Hong Kong), Nathan Bush (Singapore) and Nicolas Marchand, Rachida Benhalima and Mateusz Glowacki (Luxembourg).

(Source: DLA Piper)

The words ‘no deal’ are a prevalent occurrence in recent Brexit rumours. It’s also true that this seems to mean different things to different people.

If current Brexit talks end with a no deal, which is likely on the cards, what do you think would be the legal ramifications, for example what would happen in the criminal law sphere, how each individual sector change?

Below Lawyer monthly has heard Your Thoughts on the prospects of a no deal scenario, and what the legal sphere may see as a consequence.

Richard Thomas, Employment Lawyer, Capital Law:

With every new day showing more and more signs of a likely “no-deal” at the end of the two-year negotiation period, solicitors and other professionals alike are starting to dread what this deadlock will mean in practice.

From a lawyer’s perspective, the absence of any concrete and clear deal could spark legal and jurisdictional chaos across the UK. While we’ll hopefully have a ‘Great Repeal Act’ in force by this point, which would implement all EU legislation into domestic law, many fear that it doesn’t cover all bases. Legal and regulatory gaps could emerge post-Brexit

As an example, the EU has established several regulatory bodies (such as the European Aviation Safety Agency and the European Food Safety Agency) that regulate business activities in the UK. What will become of the regulation of such industries in the event of a legislative void?

Equally, domestic immigration law may find itself with an enormous question mark over its head following our withdrawal. With the debate on free movement of people at the forefront of Brexit negotiations, it cannot be said with certainty how migrants (both British and European) will be treated in the event of a no-deal.

Theoretically, it may be that the three million or so EU citizens residing in the UK will be treated as ‘third country nationals’. In practice, this may mean that each individual member state would have to barter an immigration deal with the UK to guarantee its citizens’ rights. A similar situation may arise for British nationals currently residing on the continent.

Commercial lawyers are also likely to be apprehensive of the future, given the potential ambiguity surrounding our trade relationship with the EU. Without a new trade agreement, the rules of the World Trade Organisation would apply by default. Worryingly, this would mean the imposition of tariffs and duties on goods sold by the UK to its European neighbours, and vice versa.

Whether “no deal is better than a bad deal”, as the Prime Minister so often puts it, is as yet unknown. But it’s this uncertainty that countless lawyers across the country dread the most.

Shara Pledger, Solicitor, Latitude Law:

If the current Brexit talks end with no deal, which is looking increasingly likely, there may well be a knock-on effect on both inbound (people entering the UK) immigration control, and the rules that will apply to British citizens entering or residing in Europe. The current regimes relating to non-EU and Irish citizens are unlikely to change.

Leaving the EU gives the UK the power to end free movement of people (one of the cornerstones of EU membership of course), and introduce its own rules and procedures. These could include tough new measures for both new migrants and those currently residing here. In real terms however, the government and UK industry both recognise that our economy relies heavily upon EU workers, and cannot afford to lose them. To this end, a transitional period will be required, and the UK will need to have a longer-term plan for managed EU migration.

From a practical perspective then, failure to reach a deal may not directly change the government's current plans for inbound immigration. However, it could leave British citizens living in or travelling to Europe without any guarantees – something that will no doubt be of concern for those likely to be affected.

Alfonso Valero, Principal Lecturer, Nottingham Law School:

The future of London as an international dispute resolution centre outside of the EU

Although there is some disagreement in the Cabinet as to whether or not there ought to be some planning for a “no-deal”, it is not impossible to think that the UK may not have reached a trade agreement when the Brexit day comes. This article looks at the risks on London as an international dispute resolution centre.
There are two important reasons for which London is an international forum for dispute resolution: one, English law as the chosen law for international contracts, particularly in financial and maritime sectors; and two, a long tradition of legal practice with judges committed to promote London as a dispute resolution centre, as demonstrated by Mr Penadés in his article ‘Commercial Choice of Law in Context: Looking Beyond Rome’.

On that basis, some may feel that London will not really suffer as a consequence of a no-deal. However, the pre-eminence of London courts cannot be understood in recent times without the tools for recognition of judgements (Brussels and Lugano regime) and the uniformity that provides the Rome regime in the applicable law. Outside of that context, enforceability of judgements across the European Economic Area becomes less clear and therefore the balance may be inclined in favour of other internationally recognised financial centres such as Paris or Munich. The UK government is very much aware of that and that’s why the paper ‘Enforcement and dispute resolution - A future partnership paper’ considered joining the Lugano Convention, which would mean joining the European Free Trade Agreement.
Accordingly, it is to be expected that a no-deal together with being outside of the EFTA would damage quite considerably the importance of London as a litigation forum. In all likelihood will be able to retain a very significant proportion of the disputes which have no real links to the EEA, but any litigant seeking recognition within the EEA would be minded to find a more suitable forum.

When it comes to arbitration, as shown by Professor Mistelis and Mr Friedland in their 2015 International Arbitration Survey, London is very much a preferred forum internationally, alongside Paris, Hong Kong, Singapore and Geneva. It can be said that as arbitration is outside of EU law, membership of the EU/EEA is irrelevant; more so considering that since West Tankers there have been cases of arbitration running parallel to litigation. Additionally, the parties choose arbitration precisely to avoid resorting to courts. On that basis, it can be said that London as an arbitration centre should not be in danger.

However, arbitration cannot be separated from the economic activities. If the companies that get involved in arbitration have relocated following the withdrawal of the UK from the EU, they may easily choose a different seat of arbitration.

We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!

The UK Chancellor’s reported slashing pension tax relief for older workers is misguided, short-sighted and counterproductive, warns the CEO of one of the world’s largest independent financial services organisations.

deVere Group CEO Nigel Green’s warning comes as it is widely rumoured that Philip Hammond will reduce pension relief for older workers in his 22nd November Budget in order to fund cutting National Insurance Contributions for workers in their 20s and 30s.

Mr Green comments: “Unfortunately, this misguided measure seems like it is almost a certainty as the government looks to raise revenue in a slowing economy.

“Following a less-than-desirable election, the Treasury will not be keen to increase VAT or income tax.  Instead they can be expected to go for pensions.  This attack on people’s retirement nest eggs demonstrates once again that the British government, which needs to bolster its coffers, views people’s retirement savings as easy, low-hanging fruit to be plundered.

“Raiding pensions has become something of a ‘no-brainer’ for successive UK governments as there’s plenty of funds within them, most of it belongs to the better-off section of society, and they get tax relief.’’

He continues: “This policy is fundamentally flawed, short-sighted and counterproductive.

“There’s a serious savings gap and yet the government seems intent on reducing one of the key drivers that motivates people to save for their future retirement.  The measure likely to be announced by Mr Hammond will discourage a much-needed revival of a savings culture.

“Now more than ever, saving should be incentivised as retirement planning increasingly becomes a personal responsibility and as the country needs a financially secure older population for its long-term sustainable economic growth.”

Mr Green goes on to say: “With the Chancellor likely to confirm the changes next month, the time for older earners to act is now should they wish to consider taking the existing tax relief while it lasts.”

The deVere CEO concludes: “Whilst ‘intergenerational fairness’ is now finally being looked at, this measure of cutting pension tax relief for older workers is not the right way forward. Mr Hammond needs to go back to the drawing board and scrap this latest attack on pensions.”

(Source: deVere Group)

Following the recent expiration of Amazon’s infamous 1-Click US patent coupled with the Federal Circuit’s remarkable ruling in Visual Memory, Nick Shipp, Partner at Kilburn & Strode, explains the need for more stricter specifications and how these decisions affect patent law in Europe.

The recent decision in Visual Memory LLC v NVIDIA Corp. (Visual Memory) was unusual:

the US Federal Circuit (FC) reversed a District Court patent eligibility holding, highlighting the need for technical advantages in patent specifications to avoid US eligibility issues and the potential advantages of US attorneys drafting more detailed specifications. Interestingly, in the long term the decision could be beneficial for UK patent litigators.

Rather than break new ground, Visual Memory logically applied the Enfish LLC v Microsoft Corp (Enfish) and Thales Visionix Inc. v United States (Thales) eligibility “guideposts”. In particular, the FC noted that the specification lays down technical benefits related to the claimed system. It was these related benefits that were important in the Judges’ final conclusion that the subject matter was patent eligible.

Visual Memory follows Enfish and Thales by finding the claims relate to eligible subject matter because the judges saw the invention as focused on improvements with technical advantages. But the decision was not unanimous. Judge Hughes, author of the Enfish decision, dissented.

Judge Hughes suggested that everything in the claim only described generic computer components. This is critical to the first step of the test in Alice Corp v CLS Bank International (Alice), when determining whether the invention relates to an abstract idea.

The other judges disagreed because this feature was not pertinent to the consideration required under Step 1 of the Alice test, which is concerned with the innovation envisioned by the inventors and whether that innovation, as reflected in the claims and specification, is patent eligible or an abstract idea. Crucially, the judges placed greater emphasis on what the inventors identified the invention as relating to, while Hughes focused more on the overall technical disclosure.

From a European perspective, less concern arises about how inventors identify their invention. Instead, lawyers focus on technical advantages associated with features that differ between the claimed invention and the artificial “closest prior art.”

With uncertainty over Alice, US patent practitioners are taking note of Hughes, trying to anticipate whether his view may become the majority by potentially including more technical detail when drafting. Firstly, this is good news for European prosecutors. Struggles with EPO patent eligibility often come from having to explain that features of a claimed invention are technically advantageous, or ‘have a technical effect’, when the description provides little explanation of the invention or its advantages.

US drafting practices change slowly. But as applications arrive, European practitioners will see a shift that should mitigate fundamental problems relating to EPO patent eligibility, improving patentees’ chances of avoiding rejections and reducing European prosecution costs. For UK patent litigators, it will be several years before we witness any tangible impact.  However, if improvements are seen in prosecution of US originating software patents before the EPO, this could eventually result in more software patents being granted in Europe with claims having potentially broader and more commercially valuable scope.

Eluding expulsion from her school, Oxford university medical student Lavinia Wooward stabbed her tinder date with a breadknife, and despite being handed a 10-month jail sentence suspended for 18 months, will be allowed to return to her studies.

Miss Woodward voluntarily suspended her studies for the duration of her jail sentence. A university disciplinary will take place at the end of the 18-month suspension, but the 24-year old budding surgeon, considered among brightest by senior figures at Christ Church, is being considered as ‘setting the terms’ of her future at the school with this move.

Miss Woodward’s legal counsel, James Sturman QC, claims she was reluctant to go back to the school, fearing she’d be recognised alongside her crime. Consequently, most people thought she may voluntarily leave the school, rather than suspending herself.

Usually, incidents like these end up in expulsion, but according to the Daily Mail sources suggest she has the institutional support of senior figures at Christ Church. But Martyn Percy, Dean of Christ Church, said: “I do not think [Woodward] is getting special treatment.”

Even when being sentenced to jail term, for stabbing Cambridge student Thomas Fairclough in the leg with a breadknife while under the influence of drugs and alcohol, the judge claimed Miss Woodward’s future was too bright to be in jail and that such a sentence would ruin her future as a heart surgeon.

What do you make of this treatment and course of action? With Britain’s future generations lacking in numbers when it comes to professional skills, is leniency in law the right way forward?