The Lawyer March 2020

THE LAWYER | MARCH 2020

The Silks Issue

THELAWYER.COM

MARCH 2020

The Silks Issue

When it comes to applying for silk, why are so few women stepping into the limelight?

Ed_Cover_The Lawyer - March 2020_The Lawyer 1

19/02/2020 16:51

Horizon /həˈrʌɪz(ə)n/ noun 1. the place in the distance where the earth and the sky appear to meet 2. the limit of that person’s ideas, knowledge and experience

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SILKS

The Bar still maintains a reputation as the law’s last bastion of a bygone age; however, times are changing and chambers are now wrestling with concepts such as automation, as this issue’s case study shows. But even two decades into the 21st century, diversity remains a problem. Our cover feature profiles some of 2020’s new QCs, and grapples with the question of why – still – so few women apply for silk.

Best practice toolkit 4 Editor’s letter 6-7 Career clinic: How can I create more networking opportunities?

8-11 Horizon: Helping legal professionals see around corners 12-13 Case study: The quest to automate counsel instructions 14-15 In-house interview: O2 head of disputes Sophie Service

Data and intelligence

Insight 26-31 The Bar Top 30: our annual ranking of chambers

24-25 The most active chambers so far in 2020

32-44 Silks: Why new QCs are predominantly men; plus profiles of some of the class of 2020

International

Innovation 20-23 Tech Pioneers: Eversheds focuses on e-discovery savings

16 In-house interview: The FSCS’s James Darbyshire

47-50 CEE: Poland’s IP revolution 51 Briefing: Testing AVs in Slovenia 53-56 Italy: Looking abroad for new opportunities 57-60 Iberia: Property market renaissance 61 Briefing: Portugal’s telecoms market

17 Briefing: Reform in the UK audit industry

62 Recruitment

18 In-house interview: Vodafone’s Alex Woods 19 Briefing: What to do when crisis strikes

COVER IMAGE: PAUL STUART

INSIDE

Chris Ronan

Sophie Service

Chief executive, St John’s Buildings p12

Head of disputes, O2 p14

Katharine Newton QC

Klaudia BlachMorysińska

Old Square Chambers p32

Patent attorney, Zaborski Morysiński, p47

Patricia Viana Partner, Abreu Advogados p57

March 2020 | The Silks Issue | The Lawyer

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20/02/2020 12:57

Editor’s letter

Signs of hope, despite another male-dominated silk round Just 30 of this year’s 114 new silks, 26 per cent, are women. Worse, only 20 per cent of the 206 applicants were female. Few Bar stalwarts, all too familiar with decades of male-dominated legacy issues, will be surprised by those numbers.

Last summer, The Lawyer underscored this when it used the data in the Litigation Tracker to analyse the gender gap at the employment Bar. This revealed that of the 577 barristers active at Employment Appeals Tribunal (EAT) between 2015 and the end of Q1 2019, there were 74 male QCs and 329 male juniors compared to just 15 female QCs and 159 female juniors.

It takes around 15 years to reach QC level. That means it is going to take years for this depressingly predictable picture to change meaningfully, no matter how many diversity-promoting policies and initiatives the Bar introduces.

In that context, the bullishness with which many of the Bar’s current female leaders have responded to the latest QC data is a surprise. None deny there is an issue, though some point to their own set’s gender stats as evidence of change. Others highlight the moves some chambers, including Blackstone, Brick Court, Essex Court, Fountain Court and One Essex Court, are making to target universities and schools to raise the Bar’s profile as a career option for women.

It is also encouraging that the Bar Standards Board’s most recent report on Diversity at the Bar shows that the majority (54.8 per cent) of pupil barristers are women. In other words, the issue is not so much attracting women to the Bar; it is about how to help female barristers build and maintain a career.

Editor

Catrin Griffiths 020 7970 4637 @thelawyercatrin

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Matt Byrne, deputy editor matt.byrne@centaurmedia.com twitter: @thelawyermatt

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Research & digital product director Roger Wagland 020 7970 4575

The biggest roadblock comes at around 10 years’ call.

More needs to be done to help women who take a career break, usually to have children, to rebuild their practice.

As with most things these days, technology can help. The software underpinning a chambers’ diary and feemanagement system helps clerks monitor which counsel have been considered for the instruction. But the primary criteria is always going to be the availability of a particular barrister, which means the more structure and support that can be put in place to help women work flexibly, the better.

Last month’s call from the Employment Lawyers Association on firms to join its instructions monitoring scheme can only help. No one is going to make silk if they don’t appear on the most complex or high-value cases. No one will appear on these cases if they are not getting a fair shot at them.

There are signs of change and reasons to be encouraged.

Indeed, the 57 per cent success rate of the 52 female applicants is significantly higher than the 41 per cent achieved by men. And changes in the gender mix of the QC Selection Panel, from two women on the 10-strong board in 2015 to a high of six last year (before dropping back to a 50:50 split for 2020) is a positive step.

The reality of what needs to change is hopefully not as radical as one senior woman at the Bar puts it (“men need to have babies”), but more, much more, needs to be done.

Mark Philbrick 020 7970 4647

James Cannon 020 7970 4146 Martin Cheng 0207 943 8011 Stephan Pavlovic 020 7970 4667

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The Lawyer | The Silks Issue | March 2020

Ed_Editors Letter_The Lawyer - March 2020_The Lawyer 4

20/02/2020 16:37

Pensions.

See the light.

Other providers charge percentage rates.

Meaning the more you make, the more you pay.

Put all of your pensions in one place for a flat monthly fee.

ii.co.uk

Capital at risk.

FSCS protected. ii_SEE THE LIGHT_PRESS THE LAWYER_225x300mm.indd 1

13/02/2020 10:31

Career clinic

THE DILEMMA I recently sat down to map out my career, and realised that in order to make partner I needed to build a network and find new opportunities. The problem is that we have a culture where only our partners are out networking, while the rest of us are expected to just do as we are told. How can I put in place the building blocks which would make that transition to partner far less painful on the business development side?

The views expressed here are personal ones and do not ­necessarily reflect those of the panel’s organisations. If you’re a lawyer who wants to put a question to our panel of experts, email richard.simmons@centaurmedia.com 6

My networking opportunities are limited – what can I do?

Ray Berg UK managing partner, Osborne Clarke

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nitially, your career might focus on technical excellence, professional standards and client service but with time it will evolve to also include client relationships, management and business development. So it is good practice for all fee-earners to set out their short-term and long-term goals to help drive your development and progression.

It is never too early to start developing your relationships and market reputation. Of course, the idea of networking can seem daunting but in reality it is simply about building relationships – something we all do in our everyday lives.

Start small by identifying one or two contacts and think about ways you can develop the relationship. One of the most effective ways to build relationships is through peer-to-peer networking. As you and your peers progress through your careers you can offer each other valuable insight. So make sure to tap into your law alumni network – many of your fellow graduates may be working in-house which will give you a new perspective.

You might start out by simply asking them out for a coffee or making a phone call. Before any networking opportunity take time to prepare and really think about what you want to say and what questions you want to ask. These don’t have to be work-related; finding out about a contact’s life outside of work is a great way to develop a hook to help you build a better rapport.

Challenging your firm’s expectations might seem intimidating, but putting a plan in place and taking the time to prepare shows your willingness and commitment. When you meet with HR or your line manager, you might also request a mentor.

The Lawyer | The Silks Issue | March 2020

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18/02/2020 15:07

Natalie Salunke Head of legal, Fleetcor

I

would start practising ‘networking’ and speaking to people who are not in your immediate lawyer circle about what you do and what they do. Adopt a curious mindset and look at the world through inquisitive eyes – just because your partners are out networking does not mean you can’t actively engage in the world around you. Speak to people, and ask questions which start to try to understand what problems are out there and how might you be able to help. Look for other lawyers groups and start to interact more with your peers. That will build your confidence in understanding what others at your level are doing and where you might even be more advanced.

Take the opportunity to attend events that are organised by the firm and be comfortable engaging in conversation, even if you don’t have a connection to those individuals as they are not your clients.

If you have any successful friends in business, make them comfortable with the idea of working with you in the future. Even if you are not ‘selling’ the fact that people know you, know your face and what you’re about, it should mean that when the time is right you are not only more comfortable with the ‘act’ of networking and bringing in new leads, but that you already have a network ready in waiting.

John Mayes General counsel (commercial), Alexander Mann

Y

ou have to invest in and take ownership of your own network, which you are keen to do, as a first step. Don’t worry too much about your firm culture – your contacts will be with you throughout your career, so you have to look at this from a rather selfish perspective. Your employers will not spoon-feed you, they want people with the initiative to go and generate new business all by themselves. A solid network will make you attractive either to your own firm, or will assist you in finding a new role elsewhere.

The sooner you start the better.

It requires patience and persistence as it is unrealistic to Attend industry expect to build a strong network via fleeting conversations and events, conferences exchanging business cards (if and seminars where anyone actually still does that). perhaps not Focus on quality, not quantity. everyone is a lawyer” Consider attending fir m marketing or training events and

practice networking among a captive audience. Offer training to clients, a good opportunity to show off your skills and build better connections with existing clients.

Connect with your peers in-house; you don’t have to try and score an instant win from a general counsel, as the mid-level lawyers can be just as influential.

Attend industry events, conferences and seminars where perhaps not everyone is a lawyer. That way you have something different to offer, rather than trying to network in a room full of very similar people. Learn how to use LinkedIn effectively. Don’t overlook your internal network; not only could it open doors internally, but a number of your colleagues will move in-house and potentially become clients.

Jamie Butler Director of learning and development, Cleary Gottlieb Steen & Hamilton

U

nfortunately, particularly in large firms, it’s still the preserve of partners to generate work by networking and other business development (BD) activities. When associates are then promoted, it is rather too late to start building this new skill and mindset. So don’t wait until partnership – be proactive and seek out new business relationships now.

Start to build the following areas into your regular goals.

Firstly, keep in touch with your law school contacts. They may not be there yet, but these could LinkedIn is a great be the GCs of the future and a platform, as are huge source of work. networking LinkedIn is a great platform, as opportunities at are networking opportunities at conferences and conferences and sector events. sector events” Secondly, focus on maintaining excellent work with current clients: understand their business so that you can spot further needs or cross-selling opportunities, keep abreast of their news and activities and maintain an up-to-date knowledge of other practice areas and key people so that you can make introductions when necessary.

Thirdly, learn from your partners and seek out mentors who have ‘rain-maker’ status! Ask to attend networking events with them, offer to do some research for a future pitch or help to prepare slides for a client training session.

Speak to your BD support team and keep on their radar as someone who is keen to develop these skills. Take advantage of any internal learning and development activities which focus on BD, networking or client relationships.

Finally, and most importantly, don’t give up – building business is a long game! Start early and commit to a few activities which can fit around your day job. Even better, keep an ongoing personal BD plan to help you maintain momentum.

March 2020 | The Silks Issue | The Lawyer

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18/02/2020 14:58

Data and intelligence

To attract the elite Japanese clients, build your practice in Germany

W

hen Japan’s largest financial group, Mitsubishi UFJ Financial Group (MUFG), decided to increase its investment in Europe, 700-lawyer Nishimura & Asahi, the largest law firm in Japan, was quick to follow suit. Nishimura is a regular adviser to MUFG on a series of significant overseas M&A deals, and it boasts unassailable domestic ties.

Former corporate partner Hiroshi Mori was appointed by the group to be its chief legal officer in June last year having previously been on the board while still working at Nishimura.

Now Nishimura & Asahi, which acted for Takeda Pharmaceutical on its bumper $79.7bn (£61.1bn) acquisition of Shire, is planning not one, but two German offices (Frankfurt and Dusseldorf).

Such continental deals are unlikely to be a fad. Driven by a shrinking domestic market and ageing population, outbound investment and M&A activity by Japanese banks and companies have increased rapidly – and last year’s mammoth free trade agreement between Japan and the EU concentrated minds further.

Up until now the bold steps into Europe have been confined to firms outside Japan’s Big Four. TMI Associates launched in London in 2018, joining Atsumi & Sakai, which opened offices in

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Japanese businesses represent exciting deal potential for Anglo-Saxon firms

London and Frankfurt in 2015. By contrast, Slaughter and May’s close friend Mori Hamada & Matsumoto has prioritised Indonesia, Thailand and Vietnam. That looks set to change, as Japanese firms are now focusing on Europe – excluding the UK. And the elite Japanese law firms are growing their partnerships and gaining momentum.

Japanese businesses, therefore, represent exciting deal potential for Anglo-Saxon firms. Look at Linklaters, which acted for MUFG on its $6.3bn acquisition of the aviation finance business of Germany’s DZ Bank in March 2019. Indeed, Linklaters now has the weightiest practice of UK firms in Tokyo with eight partners; Clifford Chance, meanwhile, has shrunk from 10 to seven over just two years. Neither comes close to the biggest global firms in Japan, Baker McKenzie (42 partners) and MoFo (34 partners). The key point for US/UK firms, however, is not so much an expensive Tokyo base but a credible story of a Continental corporate practice. In which case, the European partners at UK firms may regain a little of their swagger.

Yun Kriegler

Japanese growth: Top three firms increase partner headcount

Nagashima Ohno & Tsunematsu

9.8

Mori Hamada & Matsumoto

9.4

Nishimura & Asahi

6.9

0

Anderson Mori & Tomotsune

-4.1

TMI Associates

-4

-2

0

2

4

6

8

10

Partner change % 2017-2018 (Source: The Lawyer AsiaPac 100, 2019)

The Lawyer | The Silks Issue | March 2020

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20/02/2020 15:02

BCLP Paris: after the real estate hires comes the hard bit

B

Paris partner headcount at international firms 45 40 35 30 25 20 15 10 5 0 DLA Piper

Hogan Lovells

Norton Rose Fulbright

Number of partners 2016

Eversheds Sutherland

Reed Smith

BCLP

Number of partners 2020

The Paris revenue of five international firms (€m) 100

26

90

23.4

80

20.8

70

18.2

60

15.6

50

13

40

10.4

30

7.8

20

5.2

10

2.6 0

0 Hogan Lovells

DLA Piper

2018 revenue

Norton Rose Fulbright

Reed Smith

Eversheds Sutherland

2017/2018 revenue % change

Source: Decideurs magazine

March 2020 | The Silks Issue | The Lawyer

Ed_Horizon_The Lawyer - March 2020_The Lawyer 9

% change

Compelling proposition New partner Henry Ranchon, for example, was co-head of Franklin’s real estate group, having joined the French firm in 2013 from Wragge & Co (now Gowling WLG). During his time at Franklin, he acted for asset management firm Amundi Immobilier and German group Metro in various transactions relating to a portfolio of 43 cash-&-carry stores located across France.

Thanks to legacy BLP’s position in the real estate industry, the proposition has been compelling to the group of real estate-focused partners. But how to

compete and attract the top-notch talent it needs to build up the other practice groups in a highly competitive market will be a challenge.

Benchmarked against its global competitors, such as firms that went through a similar transatlantic merger in the past decade or so, BCLP still has room to grow in its Paris partner ranks. But as a first step, its 2019 financials will need to deliver strong enough results to improve its position in the French recruitment market. The pressure is on.

Yun Kriegler

Benchmarked against its global competitors, BCLP still has room to grow in its Paris partner ranks

Revenue €m

erwin Leighton Paisner’s desire to have a base in Paris was well known on both sides of the Channel long before its 2018 merger with Bryan Cave.

Although the merger gifted BLP a small three-partner outlet in the French capital that was launched by the US firm in 2008, it was clear to the newly formed transatlantic firm it needed to be bigger in Paris to make an impact.

Luckily for BCLP, French real estate lawyers have seen the firm as a safe berth.

With a more powerful war chest and an enhanced global network, BCLP successfully pulled off its largest team hire since the Paris office’s inauguration 12 years ago. A total of 27 lawyers, including nine partners, have joined from French independent Franklin since the beginning of this year. As a result, its Paris office more than doubled in size while the number of partners quadrupled from three to 12. It is now almost comparable to a medium-sized local firm, such as Franklin which has 15 partners.

But those arrivals had a lot more to do with the woes of a domestic French mid-market firm whose property practice has struggled to grow. All the hires from Franklin slotted immediately into BCLP’s core sector focus of real estate. Previously, BCLP’s three Paris partners covered corporate and commercial, private equity, and litigation, with their clients largely from sectors outside real estate. The nine new partners have brought an all-round real estate practice covering banking and finance, corporate and transactional and tax legal services.

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20/02/2020 15:03

Data and intelligence Horizon

Occupy London headache for Slaughters and Kirkland – should they stay or go?

10

Legal industry’s office space take-up and current demand 1800 1600 1400

Sq ft (thousand)

1200 1000 800 600 400 200

d

Cu

rre

nt

de

m an

20 19

20 18

20 17

20 16

20 15

20 14

0

20 13

W

hat do Slaughters, Bakers, Kirkland, White & Case and Skadden have in common? A mighty, London office-shaped management headache. The lease on all of these firms’ City homes is due to expire by, at latest, 2026. And, in the timeless words of Joe Strummer, the question for the leaders of these firms boils down to this: do we stay or do we go?

If firms stay there could be trouble. As one City real estate agent says, “the old ways are dying”, meaning that today’s real estate market is characterised by a potent mix of forces such as sustainability-related issues, demands from millennials, and the wellness agenda. That is likely to add up to a reassuringly expensive fit-out.

But if they go the trouble may well be double. The list of firms above is anything but exhaustive and there is simply not enough available space in central London to accommodate all of these blockbuster giants. This means that when it comes to bidding for these prime offices, the chances are it will be law firm versus law firm.

What makes this even more delicious is the names that are in play. Slaughters has been in 260,000 sq ft at 1 Bunhill Row since the tail end of the 1990s, when it is thought to have been paying around £40 per sq ft for its rather anonymous-looking home. It may think that now is a good time to trade up and get itself a little bit more on the radar.

Contrast that with Kirkland and its Gherkin berth. Kirkland was one of the tower’s first tenants back in 2005, taking 33,000 sq ft a year after it opened. If you’re looking for evidence that US lawyers have a thing for statement offices, it was right there.

It also provides further evidence of Kirkland’s rapid growth in the City.

Fifteen years after it moved into the Gherkin the expansionist firm is looking for some 150,000 sq ft and is mulling a move, though it may end up sticking with its trophy tower.

Now, though, firms’ real estate priorities have been forced to shift. Linklaters’ move to 300,000 sq ft of 20 Ropemaker St underlines that these days a top firm’s

Take up

Active legal demand (sq ft)

Potential legal demand (sq ft)

Source: JLL

office move is about much more than prestige or location, location, location.

When it opens its doors in 2024, Linklaters’ new home will have a plethora of people-friendly sustainability measures baked in.

These kinds of new requirements are contributory factors to a chronic lack of appropriate space in the City. Cushman & Wakefield suggests that the availability of office space in central London is now at one of its lowest levels since the EU Referendum in 2016.

According to JLL, there has never been a time when more major law firms in London had an active or potential demand. As it puts it, “Legal firms considering ‘stay vs go’ real estate strategies could see demand for the sector reach 2.5m million sq ft.”

To put that into context, take-up by law firms has averaged 579,000 sq ft over the past 10 years, with 2019 take up actually falling short of this figure by 8 per cent (534,000 sq ft). The highest recorded take-up was in 2000 when law firms leased a total of 1,400,000 sq ft, but JLL reports it is currently seeing “elevated levels of

demand from the legal sector”, with over 1.7 million sq ft of active demand and 1.2 million sq ft of potential demand.

Or to put it another way, normally law firms represent around 15 to 17 per cent of the active requirement in London. Now it is getting on for 30 per cent.

What that means is that there is a lengthy list of top firms that need to make a decision, and the people running those firms know that 2026 (or in some cases, sooner) is looming large.

But 2026 is six years away, surely that means there’s nothing to worry about?

Wrong. The lack of Grade A space, which is in turn pushing costs ever upward, coupled with the rapidly changing needs of the legal sector workforce – all those new geeks – means firms are being forced to cut deals earlier than ever. And, as already highlighted, this law firm pile-up means that more often than not it’s your peers chasing the same space. Who wants to lose face by losing a place?

For the leadership teams at these firms, the options are limited. And time is fast running out.

Matt Byrne

The Lawyer | The Silks Issue | March 2020

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20/02/2020 15:08

John Lewis represents a lesson for lawyers – in more ways than one

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he John Lewis (JL) Partnership model, occasionally referenced by well-meaning souls wanting to address workforce participation without sounding like Corbynite outriders, is currently looking rather strained. The JL shake-up has so far included a new chairman, a merging of two separate operations, a year-end profit slump, a third of management roles gone, projected savings of £100m… and interestingly, a reconfiguration of the legal team and an upcoming panel review that will scrutinise incumbents Slaughter and May, Burges Salmon, Eversheds and Dentons.

The personnel changes internally have come thick and fast.Veteran GC Michael Herlihy, late of Smiths and ICI, arrived in 2018 as partnership secretary, replacing Keith Hubber (now at Hiscox) as chief legal head. The JL reshuffles have favoured retail lawyers, with Hannah Hullah (ex-M&S), Rebecca Law (ex-Tesco) and Ralph Nathan (ex-Tesco) all now in place.Within this

It confirms a new talent trend; a new market in lateral moves for legal operations professionals

Technology and finance are the biggest employers of legal operations professionals

Media 4.81% Pharmaceuticals 6.73% Infrastructure 6.73%

Finance 30.77%

Insurance 8.65%

Consumer 8.65%

Other 12.50% Source: The Lawyer

Technology 21.15%

organisational flurry, the most notable move is an exit. Head of legal operations Maria Passemard is leaving to lead LOD (Lawyers on Demand)’s new push into delivery advice – itself a strong sign of where the market is going, in that interim providers are gearing up to embed themselves into the strategic thinking of in-house teams. Passemard is hot property in legal ops circles because she was there at the start of the ops boom, moving from a head of legal role to ops and delivery all the way back in 2015.

It confirms a new talent trend; a new market in lateral moves for legal operations professionals, both in-house and private practice. In the last month Isabel Parker, innovation head at Freshfields and Jamie Fraser, formerly of Smiths Group, have both gone independent, and have joined a growing band of prominent consultants that includes Alistair Maiden (formerly Asda), Vicky Lockie (formerly Pearson), and Sarah Barrett-Vane (formerly Royal Mail).

The number of legal ops and innovation roles has mushroomed over three years.

Ops roles were usually created before the legal function had worked through its strategic focus, and the ops lead therefore helped crystallise internal thinking. Our research (as of 2019) indicates that there are now at least 130 ops heads working in-house in the UK, with over half of them working in financial services, insurance and fintech – sectors where the processing of data and information is at a premium.

Whether they have a legal training or not is genuinely irrelevant as far as most GCs are concerned, but a glance at ops heads’ bios reveals that nearly three-quarters of them have qualified as solicitors.

The challenge for those individuals is personal development; do they evolve professionally in tandem with the development of the function, or do their roles have a project shelf-life? In the meantime, their experience is now valuable enough to become an income stream for the individuals involved. There are clear signs of the creation of a consultancy class on the one hand, and of significant lateral moves on the other. As New Law providers continue to focus on growing market share, the legal ops transfer market is just beginning.

Catrin Griffiths March 2020 | The Silks Issue | The Lawyer

Ed_Horizon_The Lawyer - March 2020_The Lawyer 11

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20/02/2020 15:08

Case study Case management

St John’s Buildings’ quest to automate instructions Cristiano Dalla Bona

The NorthWest chambers linked up with insurance firm Keoghs to dramatically speed up the process of putting together briefings for barristers

I

n 2017, barristers at Manchester chambers St John’s Buildings faced a problem. Personal injury cases, often of low value but coming with big volumes of paperwork, were not handled effectively. Bureaucratic steps around claims involved too many professionals devoting time to menial tasks. This resulted in higher costs for the client, with the intricate path making it hard to predict an outcome for both clients and insurers.

High costs proved even more burdensome following a number of legislative changes that, in recent years, have made legal representation on these issues difficult to afford. There was a need for a solution that could get rid of unnecessary human interventions that usually only resulted in skyrocketing fees.

The chambers is often instructed by solicitors at North West insurance firm Keoghs. While the firm had piloted an in-house product for case management, the process of moving cases to counsel when they failed to reach early settlement still relied on solicitors contacting the chambers. Chris Ronan, chief executive at St John’s Buildings, considered a solution to diarise cases and file documents automatically, but there was little around that could help.

The breakthrough came when the firm and the chambers shared a table during an awards ceremony in 2017. Ronan told the Keoghs team at his table how game-changing for their case flow it would be if they managed to combine the in-house platform with their own diary tool in a single case management system.

EARLY 2017 St John’s Buildings (SJB) identifies a problem in the handling of low-value personal injury cases.

12

OCT 2017 At an awards ceremony, SJB CEO Chris Ronan discusses the issue with Keoghs representatives.

If they could obviate the most prosaic phases in the interaction between solicitors and barrister through an automated solution, individual case costs would go down, and so would admin operations from instruction to hearing. The system could make predictions based on previous instructions. If the combined platforms showed promising results, they could be sold to insurance clients as a product.

Software development In early 2018, the two organisations partnered up. They set out to create a joint case management system that would allow them to organise electronically the lifecycle of personal injury cases, from the accident to the final hearing.

The work tackled the time-consuming brief delivery process.

When instructing their chambers, solicitors need to provide barristers with documents that help conduct hearings. As part of this initial phase, representatives for the solicitors phone and book barristers, often embarking on lengthy sessions to duplicate data and relevant information about the case in the files that reach the barrister. On average, chunky briefs can include more than 30 boxes of documents landing on the barrister’s desk. These may include pleadings, interrogatories, affidavits, correspondence, evidence of witnesses or previous legal opinions. The data entry is timeconsuming; details such as case number, explanations on the case, notes on evidence, hearing date and other admin minutiae need to

JAN 2018

Q1/Q2 2018

The businesses hold informal meetings and elaborate a strategy around development and resources. Keoghs innovation director Dene Rowe, and a three-member team led by SJB’s Ronan define a development roadmap and agree terms and conditions around the project.

A working group made of developers from the two parties and external provider Advanced is formed to oversee progress through regular meetings.

The group, led by Advanced commercial product manager Emma Hatto, creates APIs to link the two platforms, share information safely and automate the brief delivery process.

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be carefully laid out. Even if both solicitors and barristers use electronic storage for digital files, briefs are still traditionally printed out and physically delivered to chambers.

To oversee this process, the two businesses previously relied on the two different platforms. Keoghs used Lauri, a litigation product developed in-house that extracts data from unstructured material and manages the early parts of a case until a barrister is needed. St John’s Buildings had adopted MLC Case Collaboration, a cloudbased tool supplied from provider Advanced as part of a five-year procurement contract.

If the two parties made their own pieces of software communicate, the process would reduce the cost of each case and its turnaround time, as well as increase predictability around outcomes.

The idea was discussed during an initial meeting involving a line-up from St John’s Buildings including chief executive Ronan, senior clerk Chris Shaw and head of corporate services David Anderson, as well as Keoghs’ innovation director Dene Rowe.

Since the systems were run independently and served the clients of two different businesses, the parties sought board approval and inked an agreement on the terms surrounding the project.

From the outset, it was clear that the combination of two platforms from different vendors would raise technical issues. To map out these nuances, teams of technicians at Keoghs and Advanced set out a three-phase process, from software development to testing and implementation.

As part of the first phase, lead officers from each team shared application program interfaces (APIs) – a set of protocols that allow software to interact when building new applications. While MLC already had APIs, Keoghs had to build its own, which triggered a whole set of technical complications, as it needed to ensure confidentiality while sharing information.

The machine learning capabilities of Lauri allowed it to extract data from unstructured documents, assembling details like claimant date of birth and type of injury. With the APIs in place, these details could then be structured and sent to MLC when external counsel was needed for hearings. At that point, the system automatically booked a barrister from St John’s Buildings using instruction data. It relayed the information in a workflow system connected both to the diary managed by clerks, with mandatory fields being populated, as well as to Dropbox for Business, which stores documents for collaboration purposes.

To pick the right professional for the right claim, Keogh relies on a database of about 30 counsel throughout the UK. Depending on the injury and the region, the machine learning system allocates the case based on previous instructions.

Creating an integrated mechanism smoothed out some of the more prosaic elements of the brief delivery process. With the right degree of efficiency and accuracy from the combined system, it became possible for Keoghs to collect more data and provide St John’s Buildings with information more easily.

Q3/Q4 2018 A testing phase closes the development effort. Staff fully trained on the new system. Implementation starts and first client discussions are under way.

Throughout this first development phase, the two firms held a video-conference meeting every two months to manage the project progress. Meanwhile, a working group of software developers helmed by two lead officers for each organisation held weekly Skype and face-to-face meetings to plan implementation.

Testing and implementation When the interaction between the two platforms had been executed over six months, the software was tested on dummy personal injury cases. St John’s Buildings’ Shaw took the lead on this phase. He spotted glitches that could be resolved, from technical faux-pas to admin errors in the layout, such as spelling issues in the brief produced by the system.

Each dummy case was put through the system, its outcome observed carefully to assess delivery and fix inaccuracies. When 100 per cent accuracy was achieved, they moved on to a live sample.

Barristers and clerks from the chambers and Keoghs case supervisors ensured every phase included in the process ran smoothly.

Following the testing, a pilot started at the end of 2018. It revolved around a few specific cases used for three months to further check that the system worked.

The final period before implementation was devoted to training staff in its use. Following its introduction in early 2019, four insurer clients signed up.

End results The integrated system is now able to move on to the barristers those cases that were not solved through an early settlement, setting the litigation process in motion without manual intervention by clerks. It takes less than a minute for something that would have taken an hour. The usual timeline of cases is now reduced by over 30 per cent.

Similarly, the automatic processing of data through the APIs and the absence of human intervention reduced cost fees for clients.

The solution quickly became appealing to the firm’s client base.

Overheads and costs can be reduced by 25 per cent, and better predictability gives clients a better picture of what they can expect around the life cycle of their claim.The partnership is not over. The two parties are currently looking at leveraging the same system for other types of claims in a bid to move from low-value to high value work.

“There is certainly further scope for development,” says Ronan.

EARLY 2019 The platform launches. Four insurance clients sign up.

Chris Ronan, chief executive at St John’s Buildings March 2020 2020 || The The Silks Silks Issue Issue || The The Lawyer Lawyer March

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In-house interview

A STRONG SIGNAL ON FLEXIBLE WORKING O2’s head of disputes Sophie Service is quick to point out the benefits of moving away from the standard 9-5 in her own part of the booming telecoms sector

By Amar Mehta

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obile operator O2 (Telefónica UK) announced its plans for an Open Radio Access Network (OpenRAN) in January, working towards greater standardisation in the functionality of mobile networks for the telecom giant.

While the wider team focuses on the launch of O2’s OpenRAN network, its litigation arm – led by Sophie Service – will be focused elsewhere, firstly on the Court of Appeal and O2’s case in relation to licensing fees.

Service has instructed DWF in this dispute, in which Vodafone,Three and EE are also involved in a case which relates to annual licence fees for mobile phone use between 2015 and 2017. A May 2019 ruling found that the comms regulator Ofcom is liable to pay the mobile networks a staggering £220m and the Court of Appeal will hear the case later this year.

Service says there is not a panel of law firms that she uses, but the legal team have relationships with a handful who they call upon on a case-by-case basis. As well as DWF, the mobile provider has previously used Herbert Smith Freehills, Simmons & Simmons and Mishcon de Reya.

“On all new matters we will do tenders and we work with law firms on a basis that they provide us with well-scoped fixed fees,” Service says. “We think about how tactically necessary it is to use an external adviser and whether we can offer that service in-house. We will try to manage the workload ourselves.”

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The legal team at O2 UK has between 30 and 35 full-time lawyers working under general counsel Ed Smith and deputy GC Julia Boyle.

Service sits below this duo in a structure which mirrors the rest of the business. She says this mirroring is important for the legal team to understand what is going on in the business and be at the start of a conversation: “Telefónica is a global company, but the UK business is trusted to operate independently, and the legal team is no different. We oversee matters on a day-to-day basis and we engage with the group as and when required.”

O2 (TELEFONICA UK LIMITED) Sector: Telecoms

Total legal headcount: Between 30-35 FTE Annual turnover: £6bn Main external firms: DWF, Herbert Smith Freehills, Mishcon de Reya, Simmons & Simmons

Championing diversity The legal team has nearly 35 full-time lawyers but O2’s attitude towards work-life balance means that there are many lawyers who work flexibly and on a part-time basis.

Since joining in 2012, Service has been impressed by the work of the business in championing diversity and inclusion.

Flexible working is the norm, with most people in the legal team coming into the office three days a week.

“I have certainly experienced the championing of inclusion and diversity while on maternity leave and work part-time in a way that suits me. I have every other Friday off and it’s the same for other people in the team,” she says.

Prior to joining O2, Service worked at Ashurst, where flexible working was not a priority for her. However, as she has gone through her career it has become important for her to have flexibility in her

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CV

SOPHIE SERVICE

2018-present: Head of disputes, O2 (Telefónica UK Limited)

Reports to Julia Boyle, deputy general counsel

2012 - 2018: 2006-2012: Senior legal Trainee and counsel (litigation), associate, Ashurst O2 (Telefónica UK Limited)

“I have certainly experienced the championing of inclusion and diversity while on maternity leave and work part-time in a way that suits me”

work schedule, so for her O2 was the perfect destination.

Like many in-house legal teams, the main challenges Service’s team face are those of time and resource. Doing more for less without compromising people’s lives outside of work means there is a fine balancing act at O2. All of that in a fastmoving business with ever-changing needs.

The legal team needs to be there with the business to help it adapt and enable it to serve a customer by giving them effective, quick and accurate legal advice.

Telefónica has a buddy system, where junior lawyers are paired up with new joiners so they can share experiences and have someone to talk to apart from their line manager.

Service says: “O2 operates in an extremely competitive market with four main mobile networks and many ‘virtual networks’. We focus on providing the best possible experience for our customers every day – in fact, our purpose is ‘making every day better through personal experiences that count’.

“It’s a great challenge and I can see colleagues right across the business aligned behind this, not least the legal team who work extremely hard to help realise this purpose.”

For Service, telecoms is one of the most exciting and relevant sectors in the UK – there are more mobile connections than there are people and her team is at the epicentre of this booming industry.

Inside line

If you are an in-house lawyer with an ­interesting story to tell, please get in touch by using our dedicated email service.

For more information email inhouse@thelawyer.com March 2020 | The Silks Issue | The Lawyer

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CV

In-house interview

REDRESSING THE BALANCE The FSCS’s James Darbyshire uses his panel to secure value-formoney solutions for those wronged by financial institutions

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Our firms need to understand the complexity around the varied set of stakeholders we manage”

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Reports to: Chief corporate affairs officer Alex Kuczynski and to the FSCS board 2010-present: General Counsel, FSCS

By Gabriella Kane

itting at the helm of the Financial Services Compensation Scheme (FSCS), a lifeboat scheme for consumers of failed financial service firms, James Darbyshire has guided both of its panel reviews. The latest, completed at the beginning of 2019, was worth £12.6m and saw eight firms appointed. The panel was run as part of a public procurement process with total transparency.

The FSCS is an unusual beast, set up under the Financial Services and Markets Act 2000 (FSMA) and operationally independent, accountable to the financial services regulators (the Financial Conduct Authority and the Prudential Regulation Authority) and ultimately to HM Treasury.

It is not a consumer body but funds consumers (protecting bank accounts up to £85,000) and this means that there is a wide panoply of people that Darbyshire needs his external firms to take into account.

“Once you pay compensation you take on the legal rights of the consumer,” he explains. “Our firms need to understand the complexity around the varied set of stakeholders we manage.”

As part of the procurement process, Darbyshire asked firms to demonstrate not just technical expertise, but exactly how they had delivered to clients to meet their goals. Firms that were successful were those that showcased they understood what the

JAMES DARBYSHIRE

drivers for the FCSC were likely to be.

“We use panel firms in recoveries which are resource- and document-heavy. We are mindful of value for money but also recognise that technical expertise in the areas we look to instruct gives rise to complex and novel areas of law. Litigation and recoveries run for a number of years, so we look for firms that will stay with us and see it through.”

The legal team sits within the corporate affairs division of the FSCS and is made up of 10 people. It deals with all legal issues affecting FSCS (apart from employment issues), principally to assist with FSCS’s response to firm failures (as well as individual claim queries that might arise), pursuing recoveries on FSCS’s behalf, ensuring legal compliance (with the Data Protection and the Equality Act 2010, for example), assisting with commercial contracts, public procurements and corporate governance, and defending FSCS in any judicial review challenges.

Pension mis-selling claims continue to form a large part of the legal team’s day-to-day work, including claims against failed financial advisors for negligent advice to transfer from a safe pension to a much higher-risk pension, and also claims against self-invested personal pension (Sipp) Operators.“There are litigation clients around the world who recoup lost investment into high-risk illiquid schemes like cocoa bean farms in Costa Rica or hotel schemes in exotic locations. This requires our firms to also have jurisdictional reach” Darbyshire says.

Harlequin Hotels offered one of the most tempting, and now one of the most notorious, pension investment schemes of them all, with investors encouraged to empty their pension pots into hotel rooms and villas in a number of exotic locations in the Caribbean. The resorts failed to live up to

2006-2010: Senior counsel, FSCS 2005-2006: Senior associate, Eversheds 1997-2005: Solicitor, Hogan Lovells

FSCS Annual legal spend: c. £2m-£5m Size of legal and procurement team: 10 Main external firms: Addleshaw Goddard, Bevan Brittan, Burges Salmon, Burness Paull, Clifford Chance, Dentons, Eversheds Sutherland, Trowers & Hamlins

their promises, Harlequin took in more than £400m in investments and the advisors, many of them unregulated and unqualified, made a fortune in commissions.

To date, the FCSC has also paid out £2.4m to British Steel workers over botched pension transfer advice from a now-defunct advice firm.

Darbyshire is keen for his team to act as a true business partner/enabler to its internal clients, instead of just acting as purely legal advisors. “We try to do this by working alongside and collaboratively with our operational colleagues in devising FSCS’s response to firm failures, ‘translating’ our legal advice into an operational process, so that this can be done in ‘real time’ and in a way that means that consumers can be protected by FSCS in an effective and responsive way.”

Inside line

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The Lawyer | The Silks Issue | March 2020

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BRIEFINGS

ANTICIPATING MUCH-NEEDED REFORM IN THE UK AUDIT INDUSTRY Counsel should be aware of reforms due to be made in wake of recent high-profile company collapses in the UK and wider implications for businesses

A

lmost two decades after the Enron scandal and Arthur Andersen collapse brought sweeping regulatory reform to the US audit profession, the UK is now taking major strides in a similar direction.What will this mean for counsel to both UK audit firms and businesses?

Recent scandals in the UK – Thomas Cook Group, Carillion and BHS to name a few – have put auditor independence and audit quality firmly back at the top of the agenda, particularly in the Big Four firms. Auditors’ ability to maintain independence in the face of pressure from large corporation management is being questioned. When the wave of post-Enron scandals stirred similar questions in the US, the result was the establishment of the Public Company Accounting Oversight Board (PCAOB), additional regulation of auditors and tightened rules around selling non-audit services to audit clients. Structural reforms such as these could create new legal obligations for audit firms and businesses in the UK. Recent developments have signalled a path to reform similar to the US in the years post-Enron. They address concerns over weak audit independence and professional scepticism, resulting from lengthy auditor tenure or simultaneous provision of audit and non-audit services. ●● In 2016, changes to the EU Audit Reform Legislation required mandatory audit firm rotation for Public Interest Entities (PIEs) in the EU. ●● In April 2019, the UK Competition and Markets Authority (CMA) recommended splitting the audit and non-audit practices of the Big Four firms. ●● Meanwhile, the UK Financial Reporting Council’s (FRC) revised ethical standard of 2019 only permits PIE auditors to provide non-audit services which are closely linked to the audit itself or required by law or regulation. This will impact auditors’ ability to provide various services including recruitment, remuneration, due diligence, tax advice, advocacy and acting in management roles for public companies they audit. ●● The newly formed Audit, Reporting and Governance Authority (ARGA) will replace the UK FRC, though it remains to be seen if this new authority’s remit will indeed tackle fundamental issues plaguing the UK audit industry. It has announced its intention to add lawyers and forensic accountants to strengthen oversight, including within its case examination function.

Another lesson learnt from the US is that UK audit reform is likely to impact companies as much as accountancy firms. There are no companies ‘too big to fail’ when the economy is in decline and regulators are equipping themselves to catch any illicit behaviour by companies under pressure to produce results that appease stakeholders. An imminent rise in interest rates and heightened risk of recession threaten to put more UK businesses in this difficult position of meeting investor expectation.

Counsel should be aware of the implications of key complex accounting issues that may arise in situations such as fair value disputes, inappropriate revenue recognition or insolvency proceedings. Whether you are advising a company or the audit firm in such scenarios, you may at some point need to engage robust and independent accounting expertise in areas for which a UK court or regulator may eventually hold your client liable. Pivotal areas for counsel to bear in mind include: ●● Where a company has engaged both advisory and audit services from the same firm, be very alert to potential conflicts of interest further down the line. ●● Seek appropriate accounting advice to ensure that complex issues are handled in line with industry best practice. ●● Encourage auditors to reasonably challenge management’s estimates in areas of judgement (e.g. fair value, goodwill impairment, provisions and contingent liabilities) without bias or fear of retaliation. ●● Support auditors in exercising professional scepticism, ensuring the application of specific skillsets and assessing the reliability of information when auditing complex matters or areas of professional judgement in which information is often not available.

Carol der Garry, partner

Weng Yee Ng, director

It is important for lawyers to consider the consequences for client corporations of underperformance by professional accounting firms or internal audit teams. With accounting and audit scandals on the rise, UK audit reform will bring about some much needed legislative change that will impact both professional accounting firms and corporations. Legal counsel must be ready to act.

Audrey House, 16-20 Ely Place, London EC1N 6SN, UK Tel: +44 20 3941 7571 Web: www.forensicrisk.com E-mail: CDerGarry@forensicrisk.com, WNg@forensicrisk.com March 2020 | The Silks Issue | The Lawyer

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In-house interview

KEEPING A TIGHT REIN

Vodafone’s head of litigation AlexWoods discusses cost-cutting, keeping panel firms in check and opportunities to raise revenue

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By Luke Barr

self-described “middleman” who bridges the gap between Vodafone Group and its external lawyers, Alex Woods is the muchvalued interface who “translates complexity into simplicity” for senior executives. As group head of litigation at Vodafone, Woods is responsible for leading just one part of the overarching in-house department, one he describes as a “mini law firm”. Due to the size of the telecoms giant, it is unsurprising that there are many legal teams, of which litigation is just one.

One of Woods’ main tasks as head of litigation is to be commercially aware, something he strives for by keeping panel firms on a tight financial leash. In his own words, keeping a lid on legal spend is a “really important bit of the job”, achieved by not giving “free rein” to external legal advisers, while also doing as much in-house as possible. This desire to deal with interesting things internally has been a pleasant surprise for some recent arrivals from private practice.

There are five lawyers in the litigation department, including one secondee from Osborne Clarke – a firm on the company’s seven-strong panel. As for Woods, he is now in his sixth year at Vodafone, having joined from Hogan Lovells in 2014 following a six-month stint on secondment. Woods favoured an in-house position because he wanted to be closer to the decision-makers, while also “operating less in a vacuum”.

Since his switch, he has noticed an increased discipline in working hours and, unlike life at a City law firm, the lights in the litigation department are mostly off by 7pm.

The department deals predominantly with high-value, regulatory cases often hitting the billion-pound mark. A prime example is the ongoing case with Phones 4U, where allegations have been made that Vodafone teamed up with competitors to cut the now-defunct company out of the 18

market. This case is unusual for Woods due to it being played out on UK soil, with most of his largest disputes abroad.

Another ongoing dispute of significance relates to a follow-on competition claim that is being pursued in 11 European markets.

This is just one example of the department’s desire to “take opportunities when they come” when chasing claims – a potentially fruitful source of revenue for the company and one that replaces the notion that in-house legal teams serve strictly as a cost. To pursue any claim for Vodafone, Woods must first pitch the business case to the finance department, an example of the intimate relationship that the litigation team keeps with the larger business.

Woods also has a hand in the company’s internal investigations. More often than not, this is dealing with the navigation of particularly sensitive issues for the company, proving not only to be “demanding” but also “exciting” from a professional point of view.

However, underpinning everything is the litigation team’s main purpose – to “manage the company’s contentious risk”, i.e. restrain the worst impulses of those in the business and commercial department.

This is complemented by a desire not to “just be reactive”, which leads to collaboration with the in-house compliance and competition teams.

Hogan Lovells and Squire Patton Boggs are both top of the list for litigation when it comes to seeking external advice, while Wiggin has recently emerged as a main contender for tech and media-related matters. Requirements for panel firms include adopting fixed-fee arrangements, rather than charging costly hourly rates, while also providing at least one secondee a year. These arrivals rarely filter through to the litigation team, with this year’s secondee proving to be the first since Woods himself six years ago. Generally, Woods claims most big pieces of work go to tender, although decisions are not taken solely on cost.

CV

ALEX WOODS Reports to: Nick Vidovich, legal director 2018-present: Group head of litigation, Vodafone 2014-18: Senior litigation counsel, Vodafone 2010-14: Associate, Hogan Lovells 2008-10: Trainee solicitor, Hogan Lovells

VODAFONE Size of legal team: 150 lawyers (four permanent staff in litigation department) Main external firms: Hogan Lovells, Linklaters, Norton Rose Fulbright, Osborne Clarke, Slaughter and May, Squire Patton Boggs, Wiggin

One of the main challenges currently faced by the legal department is how to deal with the company’s transition from telecoms to technology. This evolution in the company becoming a full content provider is a shift that is already throwing up fresh legal issues. However, with Woods at the helm, the litigation team is looking to stay on top of all things data and digital. A perfect demonstration is a new disputes database management tool that is in the process of being rolled out to all of the company’s markets. The brainchild of Woods, this internal data-led product will allow the company to look at the value legal adds to the company, while also building up additional analytics in the future.

This is a prime example of the direction in which the disputes team is heading, with Woods’ data nous proving that his role is more than merely cutting costs.

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The Lawyer | The Silks Issue | March 2020

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BRIEFINGS

WHEN CRISIS STRIKES, WILL YOUR ORGANISATION BE READY? Crises can strike out of the blue. To address them your legal team needs to adopt a strategic as well as legal view

F

rom coronavirus (COVID-19) to product recalls and system failures, it’s not a question of if, but when crises will erupt. Around 80 per cent of the 120 UK organisations polled in PwC’s Global Crisis Management Study had experienced at least one crisis in the past five years. Whether a business survives intact is directly related to how well it is prepared.

While crises are nothing new, a combination of more exacting consumer expectations, and the speed of social media communication, mean that issues can quickly get out of control before businesses have a chance to take action.

COVID-19 is an example of how quickly a crisis can evolve globally. Crisis and business continuity plans have been put to the test with key areas such as supply chain, people and working environment policies and communications strategy coming under scrutiny.

Managing potential tensions So, where does your legal team come in and what are the key challenges in crisis preparation and management?

The crisis will land on you almost as soon as it breaks.

You are likely to be the main point of contact with regulators. You are also going to be looking at how to minimise the risk of litigation, compensation claims and regulatory sanction.

However, the key actors in crisis response also include operational and PR teams, who might have quite different priorities. Potential tensions could include PR’s desire to offer blanket compensation for damage to customers when you’re trying to hold the line on admissions of liability and resulting claims.

Similarly, legal advice might mean that some of the information operational teams need to tackle emerging problems is temporarily restricted. And cutting across all these considerations is the vital need to act in accordance with the values of your organisation, even if this heightens vulnerability to litigation.

This is likely to include transparency and putting customers first. The damage to your brand if you veer away from your values could be far more costly and lasting than any legal redress.

These potential tensions underline the vital importance of a strategic perspective on crisis risk and close collaboration with other parts of the organisation.

So, what does this involve in practice?

1. Collaboration Work with teams to co-ordinate plans and determine how to address possible conflicts – the most chaotic crisis responses often occur where this collaboration isn’t in place or breaks down. Most crises will impact every part of the business. The response demands high-level sponsorship and cross-functional working. It is key to build a core team to provide the framework and strategic guidance, supported by an extended team to address the specific actions needed to get through the crisis.

2. Continuous improvement Rather than a static one-off plan, the most effective preparations are built around regular scenario planning, dry runs to test the response in as near to real life as possible and feedback loops to ensure what is learned from these exercises is continually fed back into the plans. Most businesses will have crisis/incident and business continuity plans – and every business should.

The COVID-19 outbreak has revealed flaws in some plans, make sure that is not the case for yours.

3. Don’t waste a good crisis Crisis review can help to ensure resources are directed at tackling vulnerabilities in the longer term. For example, this might be systems modernisation to curb cyber or breakdown risks. As a legal team, the review is an opportunity to determine whether what works from a legal standpoint aligns with your corporate values and makes sense from a strategic and reputational perspective.

Melanie Butler, global crisis centre partner, PwC UK

Umang Paw, head of digital and forensic investigations, PwC UK

Thriving in a crisis Crisis preparedness is a competitive advantage. The benefits from a legal perspective include containing the damage which would also impact the scale of compensation and regulatory sanction. But it is also important for your legal team to bring unique insights into organisation-wide strategic evaluation of the crisis risks, their potential impact and how this can be managed.

PricewaterhouseCoopers, 1 Embankment Place, London WC2N 6RH Tel: 020 7804 4347 Web: www.pwc.co.uk/forensics Email and mobile: melanie.butler@pwc.com / 07801 216737 umang.paw@pwc.com / 07931 304 666 March 2020 | The Silks Issue | The Lawyer

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Innovation Tech Pioneers

Focusing on the benefits of e-discovery Eversheds has harnessed technology to handle voluminous projects and satisfy the needs of clients seeking cost savings and efficiencies Cristiano Dalla Bona

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n 2015, Eversheds Sutherland investigations partner Sarah Jones was busy working on a large-scale public inquiry. The investigation was looking into the abuse of children on the island of Jersey during the 1940s.

As part of the project, Jones took on the challenge of combing through millions of pages of documents. Search after search, her team would always face the same problem: that of conducting titanic reviews in a short period of time and with a limited amount of people, often rushing to negotiate one-off deals with external tech providers to stay on top of the process.

The experience drove Jones to earn a project management qualification. But it 20

Search after search, her team would always face the same problem: that of conducting titanic reviews in a short period of time and with a limited amount of people

also pushed her to think more broadly about the litigation practice. She asked herself how Eversheds could bring disparate elements of a project together to improve service delivery for clients, and find sophisticated ways of tracking data and progress.

“This question almost took on a life of its own and became my full-time job,” Jones recalls. “I thought: we really ought to use qualified project managers, and proper technology, and make it a service in its own right, rather than just having our lawyers turning their hands to it.”

Three years of work resulted in the launch, in May 2019, of a litigation technology unit that now produces solutions to help clients deal efficiently with

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high-value and long-running disputes. The unit, named Propel, is helmed by Jones and financial services disputes partner Nick Rundle.

However, the journey to get there was not easy. It involved bold investments, and convincing the partnership that there could be another way.

Assembling a toolkit The Jersey inquiry was hardly an isolated case. Rundle and Jones were constantly asked by clients to carry out document review as part of instructions around large regulatory investigations and pieces of litigation. Each time they embarked on these voluminous projects, they scanned the market looking to partner up with providers.

The repeated tenders for e-discovery work were tiresome. They needed to draft new terms and conditions for each vendor in order to guarantee client confidentiality.

And there were other issues. Since a third party was involved, part of the lawyering fees would go elsewhere. Moreover, the litigation team at Eversheds did not have real control over the work. “We were very much reliant on the external vendors to advise and guide us,” Rundle recalls.

Litigation co-head Paul Worth grew frustrated and argued that the discovery exercise needed to be carried out completely in-house.

His conclusion led to the development of ES Locate, one of the main assets in the firm’s tech apparatus. Then-head of litigation technology Enzo Lisciotto kicked off a procurement process to find a lasting vendor partner. An e-discovery platform called OpenText Axcelerate Cloud fit the bill; it was user-friendly and cloud-based, meaning more secure.

To bring it in-house, the firm negotiated commercial terms with the provider, OpenText, so that it could rebrand the platform internally. Axcelerate became ES Locate. It allowed the firm to completely own the e-discovery phase of litigation, from receiving data right through to production of analyses. This meant it could not only provide the service independently, but could also decide how to deploy the technology on each matter, unrestrained by one-off arrangements with a plethora of providers.

ES Locate became available just as clients were looking for more comprehensive tech solutions to solve bigger problems. To manage the tools, over four months in 2016 the firm started hiring legal tech

assistants and project managers. It was soon clear that the highest value would be achieved by bringing these professionals together, working on the same floor as the investigations teams.

“We wanted to make sure we brought all that expertise together,” Rundle recalls.

“The legal project management and technology teams needed to work in harmony with the litigators to solve the challenges raised by those massive disputes.”

In September 2016, Jones returned from maternity leave. The Jersey inquiry experience and the adoption of ES Locate convinced her that the firm needed to enhance the technology offering further before setting up a joint legal project management group to support litigation.

The obvious next move seemed to bring in-house a platform that had been used during the Jersey inquiry to run hearings and store documentation.

The matter management tool, called Opus Magnum platform, was often used in the last stages of a dispute. Jones thought it would be good if it could be adopted in the early stages of a matter, raising efficiency levels and saving costs throughout the whole process. As in ES Locate’s case,

I thought: we really ought to use qualified project managers, and proper technology, and make it a service in its own right, rather than just having our lawyers turning their hands to it” Sarah Jones, Eversheds

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Innovation Tech Pioneers they would not have to go through the process of agreeing terms and conditions every time. After months of negotiations, Eversheds became the first firm in the UK to use the Opus Magnum platform on an enterprise licence basis – renamed CaseReady.

All the litigators within the LLP now have access to it to prepare trials, create electronic bundles and collaborate among teams with

full autonomy to upload, review, tag and annotate documents.

With the e-discover y and matter management platforms in place, following the launch of the unit the team would later also roll out CaseShare, a secure file transfer solution.

The selection process surrounding the platforms was carried out in a sandbox environment: teams of associates were

The legal project management and technology teams needed to work in harmony with the litigators to solve the challenges raised by those massive disputes” Nick Rundle, Eversheds

22

involved in the testing phases alongside technologists and project managers to ensure they would be comfortable using the solutions on matters large and small.

Once the tech was available in-house and the project managers had been hired, it was time to bring the unit together and prepare for launch.

Enter the project managers By the time the unit was ready for its debut in 2019, it boasted a combined headcount of around 13 people; they included five legal technology assistants led by head of litigation technology Enzo Lisciotto, as well as three analysts and two project managers versed in the use of the firm’s in-house platforms.

The group operated alongside Worth, who was sponsor partner for the project, to support the litigation and dispute management group’s lawyers. He picked the name Propel because the vision behind this new team was driving impetus to projects and effectively support legal teams in propelling cases forward.

The leadership structure around the team helped to promote the unit’s capabilities throughout the firm and to have a joint approach in front of clients – two helpful selling points when it came to persuade the whole partnership of Propel’s potential and its ability to scale and boost revenues.

By formalising the previous informal arrangements into Propel, it was easier to communicate within the business where funding was needed for further tech or to recruit for the growing team. But it was also about making sure that large cases or big investigations ran on time and respected fee estimates, using the right tools at the right time. Legal project managers needed to understand the technology thoroughly.

“It was good to have a cohesive structure to discuss all of the different technological requirements, to keep control and measuring those moving parts,” Jones explains.

As Propel developed, the structure suffered an unexpected blow. In August that year, Lisciotto left his role to go back to his native Australia after a number of years in the UK. The team, in need of a new leader with experience of both tech providers and law firms, began an urgent interview process.

One candidate immediately stood out: Melina Efstathiou’s CV had exactly what was needed. A serious fraud solicitor by background, she had worked on financial investigations and had used tech platforms to track money trails in fraudulent schemes.

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Propelling Propel

We will need to deal with these new systems carefully because we don’t want to invest in a number of tools and risk ending up with a software that doesn’t interact with the large system we have assembled” Sarah Jones, Eversheds

She enjoyed the application of tech to the e-discovery process and, in 2017, moved to provider Relativity as a senior customer success manager.

The role gave her a bird’s eye view of the industry; she worked with clients ranging from the Big Four to law firms and corporations, which resulted in an understanding of how technology was adopted by different types of players.

In the rush that followed Lisciotto’s departure, Efstathiou got the job. And from the second she joined, the work was non-stop.

Demanding start

The summer after the launch, things moved quickly. Efstathiou had barely arrived when the team was swamped with a massive e-discovery engagement that kept project managers busy day and night. Efstathiou used that demanding moment as an opportunity to elaborate workflows across the different elements of the toolkit assembled by the litigation practice.

“It brought the team together because it required a lot of collaboration and creative thinking,” she recalls. A playbook resulted from the effort. When the firm is instructed on a regulatory investigation and there are large amounts of data to review, the partner tasked with the matter liaises with Efstathiou to arrange available data and carry out an initial review of the documentation.

It is not uncommon for the team to receive a knock on the door and receive the news that another 10 cases need to be done by the next day.

Then, the partner involved can speak to the litigation technology team to set out a timeline and a project plan of what the firm wants to achieve, who is doing what and against what kind of budget.When they meet with the Propel team, they often don’t even know what they need. They loosely explain

the situation to Efstathiou’s team, who, in turn, provide initial guidance. Following the meeting, Propel team members drafts cost estimates based on disclosure deadline, data volumes and number of bodies needed.

The team ensures terms and conditions are signed by the client and the counterparty, and then sets up the tech with IT. From that deadline, team members reverseengineer the process. If there is a stringent disclosure deadlines in three weeks, they will work backwards, implementing the workflow to do the job by that time and as fast as possible.

At that stage, the project management team can step in for the execution phase.

With this structure in place, lawyers are able to provide advice and high-end analysis and interviews, identifying critical issues in documents and collaborating with clients on interactive platforms with the certainty that everything is in the right place. The scope of disclosures varies, stretching from matters involving thousands of documents to public inquiries worth millions of pages that would take years for individual lawyers to process.

The technology and the project management aspects involved reduce the timescale to a few weeks. When ES Locate has completed the disclosure exercise, the output from the platform reaches CaseReady, where lawyers can work on the preparation of trial bundles in a secure way. In addition, the progress of each case can be monitored against cost estimates and timings.

As lawyers grew familiar with the tool, the firm noticed an uptick in usage in particular jurisdictions. For example, solicitors in Hong Kong are currently among the biggest users of CaseReady. This led Propel’s leadership to nur ture ambitions around international growth.

While Propel is not trying to reach the scale of service of a Big Four accountancy firm, it is currently looking at extending its international footprint. Its legal project managers are geographically spread, with senior legal project managers James Barrett and Katherine Storrar covering project management services in Europe and the Middle East, and legal technologist Kurtis Windrow tasked with exploring potential areas of improvement and expansion.

The unit is currently testing other tools and exploring commercial agreements with external providers. Over the last six months of 2019, the firm ran a procurement process to select a new document and email management system. It resulted in the appointment of artificial intelligence platform iManage, which helps fee-earners share and search documents and files wherever they are operating.

At the same time, the Propel team is looking to use advanced analytics for early insights into cases. “We will need to deal with these new systems carefully because we don’t want to invest in a number of tools and risk ending up with a software that doesn’t interact with the large system we have assembled,” says Jones. “It’s important that we get that right.” ●

Melina Efstathiou March 2020 | The Silks Issue | The Lawyer

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Data and intelligence Litigation Tracker

Blackstone off to a flyer in 2020 The Lawyer’s Litigation Tracker has data on the most active chambers and barristers so far in the new decade

By Beatriz Veyrat

D

ata from The Lawyer’s Litigation Tracker provides a glimpse of how the top-ranked sets and their silks have been faring during Q1 2020.

Blackstone Chambers has been the most active set so far in 2020, having already racked up 16 cases spread over 42 case days in Q1. Essex Court Chambers follows in second place with 13 cases.

Blackstone won the majority of its instructions from private practice and the likes of DLA Piper, Paul Hastings, Quinn Emanuel and Allen & Overy – with one exception: HMRC instructed the set once. Macfarlanes instructed the set twice.

Essex Court’s top instructing firms, meanwhile, were Steptoe & Johnson, CMS and Byrne & Partners. Each firm instructed the set twice.

Third place belonged to Landmark

How to buy the full reports For more information and to enquire about purchasing The Lawyer’s market reports, please visit thelawyer.com/market-reports or email market.reports@thelawyer.com

24

Ben Cooper of Doughty Street Chambers is the only one of the 114 new silks announced in January to appear in the Commercial Courts so far this year

Chambers with 12 cases in Q1 so far.

Landmark’s instructing firms included Stephenson Harwood (twice) and Slater & Gordon.

Wilberforce and Doughty Street Chambers round off the top five sets with 11 cases each. However, Wilberforce’s barristers spent an aggregate of 59 case days on their 11 cases, where Doughty Street’s barristers have spent 15 days in court so far in 2020.

Wilberforce counts boutique firm PCB Litigation among its instructing firms,

winning two of its 11 instructions from the firm. Fried Frank, Allen & Overy and Simmons & Simmons also number among the set’s instructing firms.

Doughty Street won two of its nine instructions from Lansbury Worthington.

Simons Muirhead & Burton instructed the set once.

Busiest silks There were 36 QCs active in the courts during this period. Ben Cooper of Doughty Street Chambers was the only one of the 114 new silks announced in January to appear.

Cooper was instructed by BDB Pitmans to appear alongside fellow Doughty Street tenant Edward Fitzgerald QC, acting on behalf of the applicant (an individual charged with conspiring to import heroin into the US) in a multi-jurisdictional case related to extradition to the US. Proceedings were held simultaneously in Kenya, the US and in the UK. The claimant appealed against extradition and life imprisonment on the grounds that it would violate Article 3 of the European Convention on Human Rights.

Ultimately, the court refused permission to appeal on all but one

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Top QCs by case days Rank

Barrister

1

Nathan Pillow

=2

Paul Stanley

Chambers

Days

Cases

Year of Silk

Essex Court Chambers

33

2

2015

Essex Court Chambers

32

1

2010 2016

=2

Tim Penny

Wilberforce Chambers

32

1

4

Roderick Cordara

Essex Court Chambers

11

2

1994

=5

Alan Gourgey

Wilberforce Chambers

7

2

2003

=5

Andrew Green

Blackstone Chambers

7

1

2010

=5

Jonathan Seitler

Wilberforce Chambers

7

1

2003

Top QCs by cases Rank

Barrister

Chambers

Cases

Days

Year of Silk

=1

Nathan Pillow

Essex Court Chambers

2

33

2015

=1

Roderick Cordara

Essex Court Chambers

2

11

1994

=1

Alan Gourgey

Wilberforce Chambers

2

7

2003

=1

Sam Grodzinski

Blackstone Chambers

2

6

2011

=1

David Foxton

Essex Court Chambers

2

5

2006

=1

Edward Fitzgerald

Doughty Street Chambers

2

2

1995

=7

Paul Stanley

Essex Court Chambers

1

32

2010

=7

Tim Penny

Wilberforce Chambers

1

32

2016

point– that the prospect of life imprisonment in the US might violate the applicant’s Article 3 rights. Cooper and Fitzgerald appeared opposite Rosemary Davidson of 6KBW, who was instructed by the CPS on behalf of the US government.

Six QCs have been in court on two cases already in 2020. Three were tenants of Essex Court Chambers: Nathan Pillow QC, Roderick Cordara QC, and David Foxton QC (now serving as a High Court Justice in the Commercial Court).

Each worked on two cases, spanning 33, 11 and five case days respectively.

Alan Gourgey QC of Wilberforce Chambers, Sam Grodzinski QC of Blackstone Chambers and Doughty Street’s Edward Fitzgerald QC also worked on two cases during this quarter; lasting seven, six and two case days respectively.

The remaining 30 silks worked one case each. Standing out for the length of time spent in court are Essex Court’s Paul Stanley QC and Wilberforce’s Tim Penny QC. Both men spent 32 case days at work on one case this quarter.

In terms of gender distribution, of the 36 silks active within this data set, only six were women.

Top five sets by cases Rank

Chambers

Cases

Case Days

Instructing Firms

1

Blackstone Chambers

16

42

Macfarlanes (2), Cahill Gordon & Reindel (1), Paul Hastings (1), Deighton Pierce Glynn (1), DLA Piper (1), Simmons & Simmons (1), PCB Litigation (1), Quinn Emanuel (1), Allen & Overy (1), CMS (1), Debevoise & Plimpton (1), Clifford Chance (1), Shooshmiths (1), Mayer Brown (1)

2

Essex Court Chambers

13

78

Steptoe & Johnson (2), CMS (2), Byrne & Partners (2), Gresham Legal (1), Mishcon de Reya (1), Stephenson Harwood (1), RPC (1), Mackrell Turner Garrett (1), Scott + Scott UK (1), HFW (1), Ernst & Young (1)

3

Landmark Chambers

12

15

Stephenson Harwood (2), Edmonds, Marshall, McMahon (1), Slater and Gordon (1), Mourant Ozannes (1), Walker Morris (1), Holmes & Hills (1), Richard Buxton Environmental & Public Law (1), Town Legal (1), Enyo Law (1), Solomon Taylor & Shaw (1)

=4

Wilberforce Chambers

11

59

PCB Litigation (2), Ashtons Legal (1), Simmons & Simmons (1), Fried Frank (1), Allen & Overy (1), CMS (1), Eversheds Sutherland (1), Clifford Chance (1), Howard Kennedy (1), Humphries Kerstetter (1)

=4

Doughty Street Chambers

11

15

Lansbury Worthington (2), Simons Muirhead & Burton (1), Dalton Holmes, Gray Solicitors (1), Robert Lizar Solicitors (1), Hilary Meredith Solicitors (1), BDB Pitmans (1), Russell-Cooke (1), Tuckers Solicitors (1), TMP Solicitors (1)

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Cover feature Bar Top 30

THE BAR TOP 30 Arthur Sants

The Lawyer’s annual ranking charts the state of play at the profession’s largest chambers

T

including former Solicitor-General Lord his year’s edition of the Bar Top 30 Garnier QC, looking for new homes. Andrew looks once again at the make-up Once again, No 5 Chambers Caldecott QC, another heavy hitter to move, of the largest barristers’ chambers, is top of the table, increasing joined rival media set 5RB, taking six juniors providing the most detailed its tenants from 252 in 2018 with him. Doughty Street also capitalised on insight available into how the top sets the collapse, poaching three barristers, are performing. to 270 including Heather Rogers QC. Chambers are ranked by their number of Once again, No 5 Chambers is top of the tenants and there are a number of new table, increasing its tenants from 252 in entrants into the Top 30. Crown Office 2018 to 270. In second place once again is Chambers, St John’s Chambers, 1 Garden 3 Paper Buildings, which increased its Court, 2 Bedford Row, 9 Gough Street and headcount from 184 to 201.

Old Square Chambers have all joined the The most significant new entrants to the Top 30 were list; this reshuffle has resulted in Searle Court, Quadrant Crown Office Chambers, which ranks in 10th place Chambers, 11KBW, 7KBW, Keating Chambers and with 101 tenants, and St John’s Chambers, in 13th 2 Temple Gardens falling out. with 94.

The new entrants, coupled with the steady growth in The biggest fallers to remain in the Top 30 were barrister numbers at other chambers, has caused the Wilberforce Chambers, One Crown Office Row and combined headcount of the Top 30 to increase from Maitland Chambers. All three did marginally increase 2,974 in 2018 to 3,181 in 2019. their headcounts but fell in the ranking due to the growth The bell tolled for media and defamation set One Brick of their competitors.

Court in 2019. It closed its doors, leaving many barristers, 26

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TOP 30 CHAMBERS Rank 2019

Rank 2018

Rank Change

Chambers

1

1

0

No 5 Chambers

2

2

0

3 Paper Buildings

3

4

1

4

3

5

Tenants

270

Female Tenants

Silks

Clerks

26

80

44

201

14

89

35

Exchange Chambers

173

17

43

28

-1

St Philips Chambers

169

17

49

19

5

0

Doughty Street Chambers

147

32

64

14

6

6

0

Kings Chambers

125

18

35

17

7

6

-1

39 Essex Chambers

121

47

38

26

8

8

0

One Essex Court

108

43

21

18

8

9

1

Blackstone Chambers

108

53

29

16

10

NEW

NEW

Crown Office Chambers

101

23

22

28

11

10

-1

Essex Court Chambers

95

41

13

18

11

12

1

Landmark Chambers

95

34

22

17

13

NEW

NEW

St John’s Chambers

94

9

31

16

14

10

-4

Matrix Chambers

93

35

36

14

15

13

-2

Outer Temple Chambers

90

25

27

14

16

16

0

Fountain Court

89

36

20

21

16

15

-1

Hardwicke

89

10

29

11

18

13

-5

Brick Court Chambers

88

41

18

13

19

17

-2

4 New Square

84

29

14

15

19

17

-2

7 Bedford Row

84

12

26

11

21

NEW

NEW

1 Garden Court

83

12

49

10

22

19

-3

3 Verulam Buildings

82

27

18

14

23

NEW

NEW

2 Bedford Row

78

16

17

10

24

NEW

NEW

9 Gough Street

77

8

21

8

25

20

-5

20 Essex Street

76

22

16

12

25

NEW

NEW

Old Square Chambers

76

13

30

10

27

21

-6

Wilberforce Chambers

73

34

19

16

28

22

-6

One Crown Office Row

72

26

24

10

29

24

-5

4 Pump Court

70

25

14

12

29

22

-7

Maitland Chambers

70

25

12

8

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Cover feature Bar Top 30 TOP 30 CHAMBERS BY NUMBER OF JUNIORS AND SILKS No 5 Chambers 3 Paper Buildings Exchange Chambers St Philips Chambers Doughty Street Chambers Kings Chambers 39 Essex Chambers One Essex Court Blackstone Chambers Crown Office Chambers Essex Court Chambers Landmark Chambers St John’s Chambers Matrix Chambers Outer Temple Chambers Fountain Court Hardwicke Brick Court Chambers 4 New Square 7 Bedford Row 1 Garden Court 3 Verulam Buildings 2 Bedford Row 9 Gough Street 20 Essex Street Old Square Chambers Wilberforce Chambers One Crown Office Row 4 Pump Court Maitland Chambers 0

50

100

150

200

250

Juniors

Four-year growth This report provides four-year historical data on all the listed chambers apart from the six new joiners. Looking back, we can see there has been year-on-year headcount growth throughout the Top 30 for the previous three years, and 2019 continued this trend. The average increase since 2016 was 8 per cent with 3 Fountain Court (20 per cent), 3 Paper Buildings (19 per cent), and 3 Verulam Buildings (18 per cent) growing the most.

The only chambers to shrink in this time were St Phillips Chambers (12 per cent smaller), Maitland Chambers (-3 per cent) and 7 Bedford Row (-1 per cent).

Gender divide 1 Garden Court, a new entrant in the Top 30, is the only chamber to have more than 50 per cent female barristers.

In the Top 30 as a whole, only 30 per cent of the tenants are women, with six chambers having under 23 per cent female representation. This means the Top 30 underperforms the wider bar, which has 38 per cent 28

300

Silks

female representation. The Top 30 is also showing no signs of improving its gender diversity. The average number of female tenants in 2016 was 29 per cent, the same as in 2018 and 2019 (if you remove 1 Garden Court, for which we have no historical data). The biggest improvers on this front are Wilberforce Chambers, Fountain Court and Outer Temple Chambers, who have increased their share of female barristers by 8 per cent, 7 per cent and 7 per cent respectively.

Representation in the clerks’ room is equally poor. Only 27 per cent of the clerks are women and there are two chambers, Maitland and Matrix, with no female representation. At the other end of the scale, half of the clerks at St John’s Chambers are female and at One Essex Court the figure is 56 per cent. Not only is the number of female clerks low, but an even smaller percentage are in senior positions. It must be said, however, that away from the job title of ‘clerk’, senior female figures can be found, such as chambers director at Blackstone Julia Hornor and One Essex director of administration Joanne Huxley.

The Lawyer | The Silks Issue | March 2020

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CHAMBERS RANKED BY PERCENTAGE OF FEMALE TENANTS 300

Male Female % Female

250

70%

60%

50% 200 40% 150 30% 100 20% 50

10%

0%

1 Ga Do 3 ug P rde ht a p n C y S er ou Ol tre Bui rt et ldi d Sq C n ua ha gs re mb M On a Cha e rs e C trix mb ro Ch e r s w a St n O mb Jo er f f hn ice s 's C h Ro w am 39 b E s H ar ers s e dw x C ic Ou te 7 ham ke r T Be em dfo ber pl rd s e R No Cha ow m St 5 Ph Ch be r ilip am s s Ki Ch ber ng am s sC b e Bl 9 G ham rs ac b o W ks to ugh e rs ilb ne St er r fo Ch e e Ex rce a m t ch C be r a h La ng am s nd e C be m ha rs ar k C mb e Fo ha rs m 3 Ve unt be ru a in rs lam C ou Cr ow 2 Bui rt B l d e n Of dfo ing fic rd s e C Ro Br 2 0 ha w ick E mb Co ss ex e rs ur t C Stre h e 4 am t P On um be rs M e E p Co ait ss u lan ex rt d Co Ch ur Es am t 4 se x C Ne w be rs ou rt Squ Ch ar am e be rs

0

CHAMBERS RANKED BY FOUR-YEAR PERCENTAGE GROWTH IN TENANTS Fountain Court 3 Paper Buildings 3 Verulam Buildings Hardwicke Landmark Chambers Kings Chambers No 5 Chambers Matrix Chambers 4 Pump Court 20 Essex Street Outer Temple Chambers Wilberforce Chambers Exchange Chambers Blackstone Chambers Essex Court Chambers One Crown Office Row One Essex Court Brick Court Chambers Doughty Street Chambers 4 New Square 39 Essex Chambers 7 Bedford Row Maitland Chambers St Philips Chambers -15% -10% -5% 0% 5% 10% 15% 20% 25% 30% March 2020 | The Silks Issue | The Lawyer

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Cover feature Bar Top 30

Silks Blackstone Chambers still has the most silks in the Top 30, despite that number decreasing from 55 to 53 last year. In second place is 39 Essex Chambers with 47 silks while One Essex Court was just behind with 43.

Over the past four years, Blackstone has increased its QC headcount by four, 39 Essex Court also by four and One Essex Court by nine. One Essex benefited from the arrival of Julian Ghosh QC and Jonathan Bremner QC from Pump Court in late 2019.

Kings Chambers had the biggest percentage increase (69 per cent) in silks in the past four years, boosting its headcount from 13 in 2016 to 22 in 2019. Outer Temple Chambers has also made significant moves in this time, increasing its number of silks from 16 to 25.

No 5 Chambers suffered the biggest percentage decline, losing six silks last year and seven since 2016, a 21 per cent drop, while Maitland Chambers was down four silks on

Kings Chambers had the biggest percentage increase (69 per cent) in silks in the past four years

CHAMBERS RANKED BY FOUR-YEAR PERCENTAGE GROWTH IN SILKS Outer Temple Chambers Hardwicke 3 Paper Buildings Kings Chambers One Essex Court 4 New Square 3 Verulam Buildings Fountain Court Wilberforce Chambers Landmark Chambers 39 Essex Chambers 4 Pump Court Blackstone Chambers Brick Court Chambers Exchange Chambers St Philips Chambers One Crown Office Row Matrix Chambers Doughty Street Chambers 20 Essex Street 7 Bedford Row Essex Court Chambers Maitland Chambers No 5 Chambers

30

-30% -20% -10% 0% 10% 20% 30% 40% 50% 60%

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CHAMBERS RANKED BY PERCENTAGE OF TENANTS WHO ARE QCS Blackstone Chambers Brick Court Chambers Wilberforce Chambers Essex Court Chambers Fountain Court One Essex Court 39 Essex Chambers Matrix Chambers One Crown Office Row Landmark Chambers 4 Pump Court Maitland Chambers 4 New Square 3 Verulam Buildings 20 Essex Street Outer Temple Chambers Crown Office Chambers Doughty Street Chambers 2 Bedford Row Old Square Chambers 1 Garden Court Kings Chambers 7 Bedford Row Hardwicke 9 Gough Street St Philips Chambers Exchange Chambers No 5 Chambers St John's Chambers 3 Paper Buildings 0% 10% 20% 30% 40% 50%

last year. This was partly because Amanda Tipples QC left Maitland to become a High Court judge – at the same time as Andrew Henshaw QC from Brick Court was promoted to the judiciary. Essex Court also lost six silks in this period, despite gaining two barristers – Alison MacDonald QC and Angeline Walsh, from Matrix.

Juniors-to-silks ratio As well as having the most silks, Blackstone also has the lowest junior-to-silk ratio, with 55 of the former and 53 of the latter. Brick Court Chambers and Wilberforce Chambers are second and third in this category; in both, 47 per cent of their tenants are QCs. 3 Paper Buildings has the highest ratio, with 13 juniors for every silk, while at Exchange Chambers, No 5

Chambers and St John’s Chambers the ratio is more than 9:1.

Clerks Given they have the most tenants, it is unsurprising that No 5 Chambers and 3 Paper Buildings have the most clerks: 44 and 35 respectively. Crown Office Chambers and Fountain Court have the lowest tenant to clerk ratios, with Crown Office Chambers the only set where it is under 4:1 The average in the Top 30 is more like 6:1. By contrast, Doughty Street’s 14 clerks have to manage 147 barristers, a ratio of more than 10:1. Meanwhile, 9 Gough Street and Maitland Chambers have the smallest clerk headcount in the Top 30, with just eight in each set managing the diaries of 77 and 70 barristers respectively. l March 2020 | The Silks Issue | The Lawyer

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Cover feature Silks

New QCs at a time of change Meet the new silks class of 2020 – more reflective of the UK’s ethnic diversity than ever before but still heavily male-dominated Luke Barr

A

Amar Mehta

s 114 new silks celebrated their success in the 2020 Queen’s Counsel appointments, they were also marking the end of an arduous selection procedure – all for the honour, pride and privilege of securing those two prestigious letters that can reshape a legal career.

Finally gaining the QC kitemark gives some barristers a sense of relief and vindication after years spent drafting skeleton arguments for superiors. It also leads to an overwhelming hit of congratulatory messages, followed by the climax of donning wig and gown for the ancient 32

silks’ service before the Lord Chancellor. Success doesn’t come cheap, however. The cost of this year’s application process was at least £5,000 for each successful candidate, and that’s without taking into account the associated hullabaloo – the silken gown, the limousine hire for the March ceremony, the lavish silk parties…

The process may seem as old as time itself but that does not mean nothing ever changes. Within the latest batch of juniors stepping up to take silk – years of call ranging from 1984 to 2013 – there are many interesting stories to be found. Here are some of the key trends.

The Lawyer | The Silks Issue | March 2020

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Clockwise from top left: Allison Clare, Katharine Newton, Tamara Oppenheimer, Krista Lee and Blair Leahy

Despite countless initiatives from firms and chambers, there was a drop of three percentage points in the number of silk applications from women this year

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Cover feature Silks Blair Leahy QC, 20 Essex Street Year of call: 2001

Talk about timing your exit: Blair Leahy was offered her legal conversion course scholarship on the same day that a certain Boris Johnson was to become her boss. This was long before the turmoil of Brexit, and when Leahy was employed as a receptionist at The Spectator magazine.

After studying philosophy at the University of York, Leahy was delighted with the instant financial boost that came with joining the Bar. She was offered a mouth-watering £500 a week during her first mini-pupillage at South Square Chambers, where she went on to gain tenancy and experience in insolvency and company law. However,

it was not long before Leahy sought to spread her wings in court and started focusing increasingly on fraud work.

This has since led to a variety of fascinating cases, including the mammoth matter of Public Institution for Social Security of Kuwait v Man Group plc & Ors – which was recently listed in The Lawyer’s Top 20 cases for 2020. Her decision to apply for silk was not an easy one, with initial concerns about the intimidating application process. However, having now secured the QC kite mark, Leahy is hopeful that it will boost her bid to do more overseas work, specifically in the British Virgin Islands and Cayman.

Katharine Newton QC, Old Square Chambers Year of call: 1999 A member of The Lawyer’s Hot 100 in 2018, Katharine Newton of Old Square Chambers continues to flourish, taking silk thanks to her reputation in important employment and whistleblowing claims. Among the numerous matters she has handled over the years, Newton conducted an independent investigation on behalf of the Football Association into allegations of race and discrimination.

The case was brought by former Slaughter and May associateturned-footballer Eni Aluko against former England women’s football

A crisis of confidence for senior female juniors The 2020 class of QCs is still a male-heavy one. In fact, just 26 per cent of successful candidates were women; furthermore, only 20 per cent of applicants were female.

To put it in even starker terms: last year only 52 women had the conviction to put themselves forward for silk, compared to 206 men.

This begs the question: how can gender equality be achieved at the Bar if so few women are applying for silk? The biggest cases and most lucrative clients demand QC-level barristers. How can women hope to keep up if they continue to languish behind the overwhelming numbers of male silk candidates? Despite countless initiatives from firms and chambers, there was 34

manager Mark Sampson. She was also involved in a test case about Deliveroo workers’ rights. Since completing a masters in employment law, Newton’s profile has risen to the point where she was appointed deputy head of Old Square in 2019.

Despite several of her cases settling at the doors of the court, she felt that it was the right time to take silk – after a nudge from her peers. She hopes she can use her position as a junior employment silk to encourage more black women to join the Bar.

a drop of three percentage points in the number of silk applications from women this year, down from a 23 per cent high in 2019. There have only been four instances since 2006 where more than 20 per cent of silk applicants were female. This data highlights the fact that there is an undeniable roadblock for women looking to reach the summit of the barrister’s profession.

Alarmingly, many female barristers who spoke to The Lawyer for this feature were critical of the application process itself, claiming that it institutionally favours men. It is, they say, largely down to a question of confidence. A large proportion of those interviewed said that women lack the self-assurance to put themselves above the parapet and take a punt on the application.

[Many] said women lack the selfassurance to put themselves above the parapet

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The men go about it [the process] a bit more bullishly, while women notoriously place themselves lower in the pecking order”

Even successful female candidates describe the application process as “intimidating”, “stressful” and “lacking in guidance”.

These days it consists of a daunting 52-page form that demands references from judges and other lawyers.This, in itself, can be scary, particularly when one must place one’s legal fate in the hands of uncontrollable third parties. “The men go about it [the process] a bit more bullishly,” says one barrister, “while women notoriously place themselves lower in the pecking order.”

Nearly all of the female barristers we talked to spoke of a reluctance to apply at some point or another, primarily due to the concern that they would fail. There were also anecdotes from barristers who were deterred from applying after speaking to external QC advisers, which suggests that silk sounding boards may be part of the problem. These QC coaching companies have grown in prominence since 2012, with the cost of applying mean barristers take a more cautious approach.

If all this is true, the data suggests it does not inhibit male juniors nearly as much, with men still applying in their droves year on year. In fact, the number of male silk candidates has never

dropped below 150 since the application process replaced the old ‘tap on the shoulder’ method in 2005.

Meanwhile, the number of female candidates has never even come close to hitting three figures, falling as low as 29 in 2009.

Consequently, it is increasingly competitive for male candidates when seeking silk, with only 41 per cent proving successful opposed to 58 per cent of women.

It is worth noting that 37 per cent of those called to the Bar between 1996 and 2007 were women – significantly higher than the 20 per cent of silk applicants this year who were female – and, aside from the “arduous” application process, the poor retention rate of female juniors is a major issue. If women leave the profession before they are senior enough to apply for silk, that will naturally have an effect.

Several female barristers told The Lawyer that women often leave the profession due to struggles with the trade-off between having children and advancing one’s career. This is particularly relevant for senior juniors, who may take time out to have children and then fail to return.

Tamara Oppenheimer QC, Fountain Court Year of call: 2002 Having started her career as a litigator at Allen & Overy, Tamara Oppenheimer QC moved to the Bar after three years, in 2002. She made the decision to switch over after spending time as a judicial assistant, having been wary at the start of her career because of how competitive the bar is. Moreover, when she was beginning her career in the early 1990s, she was of the opinion that the future was not at the Bar. She took the plunge and switched branches of the profession in 2002, gaining tenancy at Fountain Court and has since built a broad commercial litigation practice with a banking focus. She cites her pupil master Bankim Thanki QC as a major

influence on her career – it was after shadowing him during her early days as a barrister that she decided to focus on banking disputes.

Over the years, Oppenheimer has been involved in the Serious Fraud Office’s investigation into the ENRC, the Civil Aviation Authority’s claim against Jet2 and the Swaps litigation – she says she has found herself doing silk-level cases against QCs and felt she had the experience to work at that level.

2020 will be a busy year for Oppenheimer as she prepares for the ENRC litigation, while continuing to build a commercial crime and professional negligence practice.

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Cover feature Silks One new silk highlighted the fact that it is incredibly difficult to manage a caseload before becoming a parent, and it only becomes harder once you are a primary carer.

The increasing demands put upon barristers is unlikely to help in this respect, and there are calls for chambers and firms to do more.

We don’t just need to implement initiatives but change attitudes, especially towards flexible working and working mothers,” says 11KBW senior clerk Lucy Barbet. Blair Leahy of 20 Essex Street also criticises the “constant availability” culture that plagues barristers’ working hours: “Unless we do something about the hours culture, then it will remain difficult to retain more women at the Bar.”

Meanwhile Clyde & Co partner Sapna Jhangiani – also made a QC this year – stresses that more can be done to encourage female advocates to put themselves forward for silk, while also providing the necessary support to succeed, whether that be allowing flexible working or providing better briefs. “I think it is incumbent on lawyers to be making sure that we are encouraging women to challenge themselves,” Jhangiani says, “including encouraging them to take silk.”

The question of the quality of work female juniors are handed remains. Following on from The Lawyer’s 2019 exposé that revealed female employment barristers are often given lower-quality and lower-paid work, our latest data-dive reveals that none of the newly made

Unless we do something about the hours culture, then it will remain difficult to retain more women at the Bar

Silks: gender and ethnic background 2014-2020 Year

QCs appointed

Male

Female

BAME

Successful applicants (%)

Applicants

Successful

Applicants

Successful

Applicants

Successful

2014

100

183

82

42

18

13

6

44.4

2015

93

180

68

43

25

24

10

41.7

2016

107

190

82

48

25

32

9

45.0

2017

113

198

82

56

31

37

16

44.5

2018

119

222

87

50

32

33

18

43.8

2019

108

185

78

55

30

30

13

45.0

2020

114

206

84

52

30

42

22

44.2

Allison Clare QC, Red Lion Chambers Year of call: 1992 As just one of seven female barristers to take silk at the Criminal Bar this year, Red Lion’s Allison Clare immediately stands out as a new silk to celebrate – an achievement made even sweeter having had three children along the way. She believes becoming a mother is one of the biggest obstacles to progressing at the Bar. Clare does not hail from a family of lawyers, but has built a career as one of the top fraud barristers around. Her financial crime expertise has led her to provide counsel on two Deferred Prosecution Agreements (DPA), while

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she is also involved in an ongoing investigation with the Serious Fraud Office. Most recently, Clare played a key role in the SFO’s £3bn DPA with Airbus.

Aside from her caseload, Clare feels strongly about the drop-off in women at the Criminal Bar, claiming that too often people leave the profession due to the pay being so terrible. However, Clare has not only survived, but thrived.

She feels that she could have applied for silk a few years ago, and it was only a desire to select 12 perfect cases that prevented her from doing so.

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Krista Lee QC, Keating Chambers Year of call: 1996 Going through school in Neasden, Krista Lee QC did not envisage that she would ever build a career at the Bar, working in the field of construction law and sitting as an arbitrator. It was not until a careers event at school that she decided to ditch the idea of going into the world of science and embark on a legal career via Oxford University.

After completing her pupillage at 2 Temple Gardens in 1997, Lee built a general common law practice in county courts, but her career took a key turn after she sat in the Technology and Construction Court for six weeks. That is when she realised that construction was more interesting to her and allowed her to fulfil her longstanding interest in the sciences.

In order to build a construction practice, she moved to Keating Chambers, but not before completing an undergraduate degree in engineering. This means that not only does she have the legal expertise on cases, but an engineering perspective

This year, the Bar announced a record number of new QCs from black, Asian or minority ethnic backgrounds

too, which she says helps when speaking to experts.

Lee has been involved in many highprofile projects, among them acting for the contractor in the final account dispute relating to the design of the Burj Khalifa in Dubai; working for the Ministry of Defence in a £100m dispute over the nuclear submarine berth in Faslane; and for the developer of the Durrat Al Bahrain artificial islands. She has also represented energy companies in claims concerning the engineering of the UK’s largest offshore wind farm, and the Olympic Delivery Authority.

Lee decided four years ago that she was ready to apply for silk and since then she has focused all her energy on getting herself in the right position to be appointed to the Queen’s Counsel.

This year she will be sitting as an arbitrator in Dubai, which she believes is an enormous growth area, while domestically Lee is involved in a sixweek trial relating to a fire in a 300-unit block of flats in Barking.

female commercial silks was instructed by a magic circle firm during their time as juniors, although five of their male counterparts were drafted in by the likes of Freshfields Bruckhaus Deringer, Slaughter and May and Linklaters.

Those five men are Conall Patton of One Essex Court, Richard Fisher of South Square, Erskine’s Andrew Thornton, Blackstone’s James Segan and 4 Stone Buildings’ Sharif Shivji – a hint that gender parity in the instruction of barristers is still a long way off for the magic circle, even despite initiatives such as Freshfields’ plan to speed-date its lawyers with junior barristers in a bid to attract a broader range of counsel.

Initiatives such as these are obviously a step in the right direction; however, they count for nothing if they do not lead to something more.

CMS Cameron McKenna Nabarro Olswang has previously instructed the most commercial juniors named in this year’s list of new silks. It has worked with five out of the 21 new commercial silks from sets in the Bar Top 30, including Chloe Carpenter of Fountain Court and Andrew Mold of Wilberforce Chambers. Stephenson Harwood follows, with four instructions, while Clyde & Co, Macfarlanes, Simmons & Simmons and DAC Beachcroft all have three. This year, the most common civil practice area for new female silks was commercial,

with six of the successful 30 specialising in commercial matters. This was followed by five female barristers whose main area of expertise is family, which follows the trend noted by one barrister that female juniors are all too often pigeonholed into ‘female-friendly’ practice areas.

This gender selectivity is also reflected at the criminal Bar, with Allison Clare of Red Lion Chambers revealing that she refuses to do any sexual offences work because she found that it was too often being passed down to women.

As for firms that have instructed the most newly qualified female silks, the list includes DAC Beachcroft, which instructed Amanda Savage of 4 New Square and Fountain Court’s Tamara Oppenheimer in separate cases, as well as Addleshaw Goddard, CMS and Stephenson Harwood, all of which drafted in Fountain Court’s Chloe Carpenter.

Good news for BAME barristers this year – but the struggle is far from over This year, the Bar announced a record number of new QCs from black, Asian or minority ethnic backgrounds.

Overall, 22 BAME barristers made the step up in 2020, coming from a pool of 42 applicants and representing a fifth of the final 114.

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Cover feature Silks Financial matters The QC selection company Queen’s Counsel Appointments (QCA) racked up nearly £1m in fees from the latest application process. Last time around, it cost £2,160 just to apply, while those who were successful had to fork out an extra £3,000 plus VAT. According to its most recent financial results on Companies House, QCA made a total of £755,100 from last year’s process, with £431,100 stemming from application fees and £342,000 coming from appointment fees.

Age range This year’s silk competition saw an increase in the number of successful candidates aged over 50 – rising to 26 after last year’s tally of 19. The most senior of the new silks in terms of age is Cloisters’ Delroy Duncan. Aged 60, his practice is based solely in Bermuda. Meanwhile, the most junior new QC is Henry Warwick of Henderson Chambers, who has taken silk after just 13 years call. Previously a solicitor at Linklaters, he has since built up a commercial-based caseload, while also dipping his toe into Brexit litigation during Miller 1.

This was a vast improvement on 2019, when there were just 13 new BAME QCs. This year saw the highest number of silk applicants from a BAME background to date, while it was also the first time this figure exceeded 40. To put this into context, in 2019 there were 30 BAME applicants, while back in 2013 there were just three.

However, this is not ‘problem solved’ for the Bar, as demonstrated by the volatility in the numbers over the past few years. Out of the 22 BAME barristers to take silk this year, only eight are black and none are members at magic circle chambers. Yet it is worth noting that 2020 was the eighth consecutive year of double-digit BAME representation in the final list of successful candidates.

One of this year’s new QCs, Jamas Hodivala of Matrix Chambers, is vocal about the need for more diversity at the Bar, stressing it is the only way to avoid a “one or two-dimensional set of people looking at different problems in the same way”.

He describes his struggle to gain pupillage as the “most difficult and depressing” time of his life, adding that he has experienced “first-hand” the difficulties of diversity at the Bar. He is adamant that more needs to be done at junior level, particularly on the criminal side, although he remains wary because the “need for financial wherewithal automatically makes it less diverse”.

Old Square Chambers’ Katharine Newton is another advocate for change, calling for more mentoring and encouragement to ensure that there are more black female silks in the future.

Silks are increasingly international Elsewhere, this year’s silk awards highlighted the increasingly international outlook of the Bar, particularly when considering solicitor advocates and arbitration. Of the four solicitor advocates who made the grade from nine 38

applicants, two are based in Paris, one in Hong Kong and the other in Washington DC. These results come in stark contrast to 2019 when all four of the solicitor advocates taking silk were based in London. Freshfields has enjoyed the most QC appointments of any firm over the past eight years, with seven, while White & Case has seen three elevated in the past two years.

Bonanzas for Fountain Court and Old Square Chambers This year saw Fountain Court achieve a record windfall of six new silks: Giles Wheeler, Edward Levey, Robin Barclay, Chloe Carpenter, Ben Lynch and Tamara Oppenheimer. Data collected from our Litigation Tracker shows that Oppenheimer (called 2002) has been the busiest female barrister out of Fountain Court’s six new silks, while Levey (called 1999) was her male equivalent.

As for other sets who enjoyed significant silk appointments in 2020, 4 New Square gained four new QCs, while Blackstone added three – one of whom was Harish Salve (called 2013), who is the most recently called barrister named in the list of new silks.

However, setting the bar for diversity was Old Square, which went from zero BAME silks to three. The members who made the step up, all of whom specialise in employment law, were Katharine Newton, Ijeoma Omambala and Deshpal Panesar.These are the progressive steps that must be taken by if the Bar is to maintain its bid to modernise.With the QC appointments process demonstrating that the profession is increasingly alive to the issue of diversity, the onus is now on firms to instruct more female juniors and chambers to foster a more supportive workplace environment. Only by achieving these things will the Bar be able to boast substance over symbolism.

Of the four solicitor advocates who made the grade from nine applicants, two are based in Paris, one in Hong Kong and the other in Washington DC

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11KBW is delighted to announce the appointment of Julian Milford, Aileen McColgan and Marcus Pilgerstorfer to Queen’s Counsel 11KBW is a leading set in Public, Employment,

Commercial and Media Law For more information: Joint Senior Clerks: Lucy Barbet and Mark Dann Business Development Director: Andrea Kennedy clerks@11kbw.com | +44 (0)20 7632 8500 | www.11kbw.com 11KBW is committed to equal opportunities

Congratulations to Zoë Barton and Andrew Mold on their elevation to silk.

The formal Silk Ceremony will take place at Westminster Hall on Monday 16 March 2020.

wilberforce.co.uk

Zoë Barton is particularly recommended for property, trusts and related professional negligence but her practice also encompasses broader commercial chancery work.

She is noted as “a forceful advocate” who shows “exceptional attention to detail” and is “very good with clients” (Chambers and Partners 2020).

Andrew Mold’s practice covers commercial and traditional chancery work, particularly trusts, pensions, fraud and breach of fiduciary duties, professional liability, company and partnership disputes.

He “gets to heart of the problem quickly, communicates complex ideas clearly and succinctly, and develops a good rapport with clients” (The Legal 500 2020).

8 New Square, Lincoln’s Inn, London WC2A 3QP DX 311 Chancery Lane +44 (0) 20 7306 010 chambers@wilberforce.co.uk

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Cover feature Silks David Scannell QC, Brick Court Chambers Year of call: 2003 David Scannell’s legal career began in academia, first with a doctorate in law at Cambridge University before then lecturing in Paris for a year. However, the temptation to go into practice proved too much in 2004, when he joined Brick Court Chambers as a pupil. This decision stemmed from a desire to have a “concrete real-life

effect” on the world, something that he has since achieved by acting on a whole host of high-profile competition cases.

He is currently involved in the ‘payfor-delay’ litigation for GlaxoSmithKline, which concerns a challenge on fines imposed on the Pharma giant by the Competition and Markets Authority, with further hearings

now expected. Another major case on his radar is that of Phones 4U v EE, with allegations that network operators colluded to pull the plug on the nowdefunct claimant.

As for the question of how taking silk will advance his career, Scannell is hoping that the main change will be that he is now in court much more often. During his time as a junior, he achieved the balancing act of managing oral advocacy with paperwork, although he is now keen to throw himself into the legal limelight.

Harish Salve QC SA, Blackstone Chambers Year of call: 2013 Called only in 2013, Harish Salve is officially the most ‘junior’ silk of the 114 created in 2020, but in fact he has many years of experience under his belt, the majority of which was spent acting in the Indian courts.

Salve was called to the bar after deciding to join Blackstone Chambers as a door tenant and has since worked

almost exclusively from London.

He began his journey to the English Bar in 2010, when he was receiving an increasing amount of international arbitration work, and felt that it was logical to move to London, which he sees as the hub for arbitration.

He now spends most of his time working on arbitration from Blackstone but about twice

a year will go back to India to act on Supreme Court cases.

Many Indian clients prefer coming to London, as they feel that it provides better value for money. Despite several Indian advocates taking up door tenancies at the English bar, Salve is the first to take silk.

While Salve’s practice won’t change much, as he believes that he already has a de facto silk practice, he states that he is looking forward to wearing the specialist silk gown.

Conall Patton QC, One Essex Court Year of call: 2004 There are not too many juniors who have been instructed by most of the magic circle before taking silk, and even fewer who have been granted the opportunity to advocate in some of the biggest cases to go through the English courts. However, Conall Patton is no ordinary junior, already stepping in occasionally to replace One Essex Court 40

star Laurence Rabinowitz QC in the preliminary hearings of Omers & Ors v Tesco plc, while also leading for Glencore during a “nerve-wracking” twoday hearing in the Court of Appeal.

It was the calibre of these types of cases that provided Patton with a powerful indicator to apply for silk. “Until you’ve spoken in front of the

judge, they might not even notice you’re there,” says Patton, who will be spending the majority of 2020 preparing for this summer’s mammoth Tesco trial.

However, once this case is finished, he is keen to diversify his caseload and build a more varied practice: “One of the most exciting experiences [as a barrister] is when you get a new set of instructions,” says Patton. “There’s a new cast of characters, new solicitors, and you take it as a compliment. When you’re in a big case for a long time you miss that buzz.”

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George Bompas QC John Brisby QC Robert Miles QC Jonathan Crow QC Richard Hill QC Andrew Clutterbuck QC Orlando Fraser QC Andrew de Mestre QC

Sarah Harman Christopher Harrison Paul Greenwood Nicholas Cox Charles Marquand Anna Markham Hermann Boeddinghaus Gregory Denton-Cox Sharif Shivji Tiran Nersessian

Alastair Tomson Adam Holliman Tom Gentleman Donald Lilly Alexander Cook Nicola Timmins James Knott Eleanor Holland Joseph Wigley Nienke van den Berg

Edward Crossley Andrew Rose Albert Sampson Lara Hassell-Hart Emma Horner Guy Olliff-Cooper Zara McGlone Karl Anderson Daniel Kessler Nicholas Wright

We are delighted to announce that Sharif Shivji has taken silk. Sharif was named as the Legal 500’s Insolvency Junior of the Year 2020, and in previous years as Chambers & Partners’ Commercial Litigation Junior of the Year and Company & Insolvency Junior of the Year. He also has a long-standing commitment to pro bono which 4 Stone Buildings is proud to support.

Senior Clerk: David Goddard Lincolns Inn, London, WC2A 3XT • DX: 385 Chancery Lane • Telephone: 020 7242 5524 clerks@4stonebuildings.com • www.4stonebuildings.com

4 Stone Buildings Lincoln’s Inn, London WC2A 3XT -1Members of Chambers are delighted to announce the appointment of Jennifer Knight and Jane Osborne as Queen’s Counsel.

2 Harcourt Buildings is a diverse and talented set of criminal chambers experienced in both prosecution and defence.

We welcome applications from outstanding tenants with established practices.

For further information on Chambers, please visit our website at www.2hb.co.uk Chambers operates an Equal Opportunities policy.

T: 020 7353 2112 E: clerks@2hb.co.uk

2HB AD_Final.indd 1

14/02/2020 09:40

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Cover feature Silks David Blundell QC, Landmark Chambers Year of call: 2001 As 11-0 thrashings go, it was probably one of the most beneficial defeats of David Blundell’s career. In 2019, he supported Blackstone’s Sir James Eadie QC during the historic prorogation case that reached the Supreme Court.

In his own words, he described it as an “absolutely unique” experience and is doubtful that he’ll ever be involved again in a case of such magnitude.

As a public law aficionado, this was undoubtedly a career highlight for Blundell; however, he is also keen to highlight the case of Patel v Shah, which was his first experience of acting as sole counsel in the Supreme Court.

Prior to joining Landmark in 2004, he enjoyed a year working as a judicial assistant to the law lords, Lord Nicholls and Lord Rogers, describing the experience as “one of the best things

I’ve done”. Not only did this allow him to sit in on appeals, but he was also able to witness a full range of fascinating advocacy styles.

Over the years, Blundell has specialised in EU-related law, which makes him a prime candidate when advising clients on Brexit-related matters. He has also been listed on the Attorney General’s A Panel since 2015, which has led to a huge amount of work from the Government.

His current caseload consists of the ongoing citizenship controversy concerning Shamima Begum, while he also has a judicial review linked to the Windrush scandal in March. Property is another string to Blundell’s bow, and he is lined up for an upcoming four-week trial linked to the New Covent Garden redevelopment.

Jamas Hodivala QC, Matrix Chambers Year of call: 1998 When Jamas Hodivala was young he didn’t want to be a lawyer, nor did he want to be a doctor or a businessman.

Instead, he wanted to be a stuntman.

Sadly, this dream never materialised; however, he has now emerged as one of 2020’s most exciting new silks.

His first taste of the legal profession came during a compulsory work experience stint at a solicitors’ firm in north London, and it was after watching a “great, grizzly bearded barrister” in the Court of Appeal that he got the bug.

However, it was not all plain sailing for Hodivala, who managed to get into university only after initially messing up his application form, before then failing to find a pupillage immediately. Finally, Goldsmith Chambers came calling, followed by spells at Trinity Chambers

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and 2 Bedford Row. “Cutting my teeth in the magistrates and the Crown made me the barrister I am today,” says Hodivala, who joined Matrix Chambers in July 2019.

His practice now focuses on financial crime and regulatory issues, and he describes himself as “falling between the cracks of criminal and civil”, operating in the “shadowy areas” that criminal barristers do not often trespass into. As a “onestop shop” for corporates, he enjoys the challenge of representing organisations over individuals.

Hodivala is a strong proponent of improving diversity at the Bar, stressing that the legal profession must do better in retaining barristers from diverse backgrounds.

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The members of Enterprise Chambers warmly congratulate James Pickering, who is shortly to be appointed Queen’s Counsel.

We are also delighted to welcome to chambers Hugo Page QC, Madeleine Heal and Amit Gupta, who have all recently joined us in our London chambers from other sets.

Chambers continues to be interested in applications from established practitioners in London, and in our Bristol, Leeds and Newcastle branches. Please feel free to contact James Pickering or Linden Ife if you would like a preliminary discussion in strict confidence.

Enterprise Chambers is a leading set of Barristers specialising in commercial and chancery, company, insolvency and property law.

• London

• Bristol

• Leeds

• Newcastle

www.enterprisechambers.com 020 7405 9471

THE MEMBERS & STAFF OF RED LION CHAMBERS OFFER WARM CONGRATULATIONS TO:

Allison Clare & Cameron Brown on their appointment as Queen’s Counsel on the 16th March 2020

Riel Karmy-Jones QC for being named in The Lawyer Hot 100

Red Lion Chambers continues to thrive with members undertaking high profile cases relating to Fraud, Bribery & Corruption, Anti Money Laundering, DPA agreements, Crime and Professional Discipline.

All enquiries should be addressed to Chambers' Practice Director, Mark Bennett

020 7520 6000 | chambers@18rlc.co.uk | redlionchambers.co.uk RED LION CHAMBERS, 18 RED LION COURT. EC4A 3EB March 2020 | The Silks Issue | The Lawyer

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Cover feature Silks Delroy Duncan QC, Cloisters Year of call: 1984 Bermuda-based Delroy Duncan was the oldest barrister to be appointed Queen’s Counsel this year. He is the go-to public law, commercial litigation and trade union barrister in the country.

Duncan started off at Cloisters in 1985 but moved to Bermuda, where he established the firm Trott & Duncan.

He remains an associate tenant at Cloisters, where he regularly instructs

barristers at the set on Bermudan matters.

He acts as both a barrister and solicitor on cases and therefore handles a case from the moment a client walks in through to its conclusion.

Since his appointment to Queen’s Counsel, Duncan has been made as an arbitrator and sees this as a growing area of his practice.

Aileen McColgan QC, 11 KBW Year of call: 2001 Aileen McColgan QC is one of three female silks at 11KBW and the second who is originally from Derry, Northern Ireland. She is a public and employment barrister, with a big focus on educationrelated matters. If that wasn’t enough, McColgan is also a part-time professor at the University of Leeds and taught human rights law at Kings College for 27 years. She

transitioned to the Bar in 2001, joining Matrix Chambers first as a consultant and later as a full-time barrister.

She went full-time because her commitments with academia meant she could not do trial work and her role was much more advisory. This was initially on a two-year trial basis but she decided

to stay full-time at the Bar and moved to 11KBW in 2018, where her practice has developed around employment and public law. She has acted on an investigation into the BBC by the Human Rights Commission and most recently acted for the Tate Gallery in its dispute against aggrieved neighbours pursuing a nuisance-related appeal.

In 2020, McColgan will head to Kuala Lumpur, where she is honorary legal counsel for the International Planned Parenthood Federation. She is also junior counsel on the BBC pay gap investigation.

Henry Warwick QC, Henderson Chambers Year of call: 2007 Having started his career in 2000 as part of Linklaters’ dispute resolution team, Henry Warwick QC moved over to the Bar in 2007. In between, he worked at the Permanent Court of Arbitration at The Hague during the Eurotunnel Dispute, spent time on secondment at Liberty and was also employed as a judicial assistant at the House of Lords.

He has since built a commercial litigation practice, focusing on joint ventures, supply chain and civil fraud

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cases. He has been involved in the Chevron Corporation litigation as well as group actions such as the recently settled Post Office/ postmaster litigation.

He is also instructed by GlaxoSmithKline in its dispute over whether antidepressant drug Seroxat is defective. Warwick says his experience as a solicitor helps him understand the pressures on both solicitors and barristers, especially during large group actions.

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Raises the Bar in Chancery and Commercial

Serle Court would like to congratulate Justin Higgo and Timothy Collingwood on their appointment as Queen’s Counsel.

Justin and Timothy look forward to continuing their established commercial and chancery practices, specialising in civil fraud, company law, and private client trusts and probate.

6 New Square, Lincoln’s Inn, London, WC2A 3QS | Tel: +44 (0)20 7242 6105 I clerks@serlecourt.co.uk | www.serlecourt.co.uk

Congratulations to Shantanu Majumder, Kate Selway and Christopher Boardman on their appointment as Queens Counsel.

“Radcliffe Chambers is described as an ‘excellent set’ and ‘chambers of choice.’” – The Legal 500 UK Bar 2020

Practice areas

Private Client Shantanu Majumdar

Kate Selway

Christopher Boardman

Shantanu practises in commercial litigation and arbitration, civil fraud and professional negligence.

Kate has a wide ranging chancery practice with particular expertise in private client, trust and property matters.

Christopher practises in insolvency, commercial, fraud, company, partnership and banking and finance law.

W: radcliffechambers.com

T: 020 7831 0081

Radcliffe Chambers, 11 New Square Lincoln’s Inn, London WC2A 3QB

March 2020 | The Silks Issue | The Lawyer

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International Central and Eastern Europe

Poland’s IP revolution On the panel

Klaudia BłachMorysińska Patent attorney, Zaborski Morysiński

Tomasz Koryzma Head of IP/ TMC Poland, CMS

Specialist courts will be introduced this year to raise standards of professionalism in the judiciary and provide more consistent decisions Gabriella Kane

T

he Polish IP community has been waiting a long time for the establishment of specialist IP courts. At last, this year they are set to be introduced.

What is the current structure for IP cases heard in Poland and what has made the establishment of specialist IP courts necessary?

Krystian Maciaszek, DLA Piper: Polish lawyers have been waiting a long time for the establishment of specialist IP courts; this year will see them introduced.

So far there is only one specialist Polish IP court, functioning as the European Union Trademarks and Community Designs Court. IP cases related to other issues such as patents, national trademark registrations, industrial designs, and unfair competition are handled by other courts according to general rules – unless they can be joined with a European Union

Trademark or Community Design infringement case.

As a result, judges with no real knowledge or experience of IP matters often handle highly complex and demanding IP cases. Court decisions can be surprising (both positively and negatively) for those involved and there is a distinct lack of consistency. In addition, these IP cases usually last longer than (already lengthy) standard cases.

Agnieszka Sztoldman, senior associate, Taylor Wessing: Furthermore, some cases regarding the decisions of the country’s Patent Office – for example, those concerning trademark or industrial designs invalidation – will no longer be heard in the appeal of the administrative proceedings by the Provincial Administrative Court in Warsaw and the Supreme Administrative Court. This will not apply to patent and utility model invalidation proceedings, which due to technical character will only be heard by the Polish Patent Office.

Bartosz Krakowiak Patent and trademark attorney, Polservice

Krystian Maciaszek Counsel, DLA Piper

Agnieszka Sztoldman Senior associate, Taylor Wessing

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International Central and Eastern Europe What have been the largest IP cases heard in Poland over the past year and which ones are coming up in 2020?

Klaudia Błach-Mor ysińska, Zaborski Morysiński: A cable television operator did not obtain authorisation from a collective management organisation to re-broadcast some programmes.

Nevertheless, the operator continued the broadcasts and made non-contractual payments to the collective management organisation. The collective management organisation brought court action against the operator.

The action was based inter alia on Art. 79(1)(3)(b) of the Polish Copyright Act and covered the claim for payment of triple the rate of the operator’s revenue.

The claimed amount was reduced by the payments already made by the operator. First the district court, and then the appellate court, awarded the requested remuneration.

The operator argued that Art. 79(1)(3)(b) of Polish Copyright Act in a part allowing for triple redress should be found inconsistent with the Polish Constitution. The Constitutional Tribunal held that contested provision violated the right of ownership and the principle of equality under the law, by disproportionately burdening copyright infringers in relation to infringers of other rights.

The Tribunal also found that it constituted an unjustified and too far-reaching preference for copyright owners. The Tribunal noticed that it is often difficult to estimate the value of damage resulting from the infringement of economic copyright. The idea of compensation based on a lump sum is easier.

However, the copyright owner should not have been granted exorbitant compensation derived from the damage suffered.

From the date of the tribunal’s judgment, a plaintiff can no longer claim compensation in the form of the triple the value of relevant remuneration in civil proceedings for copyright infringement.

Tomasz Koryzma, CMS: An interesting case decided by the Polish Supreme Court on 9 May 2019 related to the disputes between the Swiss luxury watch producer (Omega) and a Polish company producing time-measuring swimming devices. Polish producers started using ‘Mega’ and ‘megatiming’ in their internet domain name.

Omega claimed infringement of its renowned EU trademarks, as well as unlawful copying amounting to unfair competition under Polish law. The Supreme Court explained that in the cases relating to the renowned trademarks, the courts should assess the overall similarity of trademarks, including phonetic, graphical or conceptual aspects.

The mere conceptual differences may not be enough to eliminate infringement. More importantly, it stressed that the similarity required for renowned marks has a lower threshold than in the case of ordinary trademarks.

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Will the EU Trademark and Design Court inWarsaw continue to be used and, if so, what will it be used for?

Bartosz Krakowiak, Polservice: The competences of the EU Trademark and Design Court will be now distributed among all the appointed IP courts of the first instance (not only in Warsaw, but also in Gdańsk, Lublin and Poznań). In other words, we will now have four EU trademark and design courts in Poland. Due to the superb quality of the current EU Trademark and Design Court in Warsaw, such a solution (decentralisation of powers) might be criticised.

On the other hand, it will lead to more uniformity of court decisions in matters related to trademarks and designs throughout Poland – both for EU trademarks and designs and for national rights. What is important, the Regional Court of Warsaw, as one of the appointed IP courts, will now have an exclusive competence to hear in the first instance all ‘technical’ IP cases (i.e. those related to patents, utility models, semiconductor topographies, computer programs, plant varieties and technical know-how).

The specialist IP courts will allow judges to specialise in IP matters, which – in turn – will result in enhanced professionalism and more legal certainty” Bartosz Krakowiak, Polservice

What new opportunities and benefits will the specialist courts bring for IP in Poland?

Krakowiak: The specialist IP courts will allow judges to specialise in IP matters, which – in turn – will result in enhanced professionalism and more legal certainty (predictability of court decisions). Of course, this will not be an immediate effect of the reform – further education of the judges appointed to sit in IP courts, especially in ‘technical’ matters, as well as an improved system of independent court experts (the issue, regrettably, not addressed in the reform) will be a must.

In any event, we may expect more clarity from the respective procedures and court decisions, which, on one hand, should allow IP rights holders to more effectively enforce their rights and, on the other, make it possible for other businesses to defend themselves against unjust and abusive legal actions based on alleged IP infringements. The latter aspect may prove to be quite beneficial to Polish industry.

What new procedures will be introduced?

Błach-Morysińska: New regulations settle two specific types of court actions; i.e. counterclaims and actions to determine that certain activities do not infringe on intellectual property rights. With regard to the counterclaim solutions, the draft is based on Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trademark. Currently, cases regarding invalidation of the trademarks or design or cancelation of trademark due to non-use are run before the Patent Office of the Republic of Poland. Pursuant to the amendments, charges can be raised in the counterclaims and the court shall examine them. The new mechanism requires co-operation between IP courts and the Polish Patent Office.

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International Central and Eastern Europe

A trend in Poland is the growing importance of alternative dispute resolution of IP disputes” Agnieszka Sztoldman Taylor Wessing

Koryzma: There will also be a new information injunction mechanism. Such mechanisms so far regulated in the various acts, including the Polish Copyright Act and Industrial Property Law, will now gain one unified procedure in CPC. As such, upon the claimant’s request, before or during the commencement of IP infringement proceedings or until the conclusion of the hearing in the first instance, the court can call upon the infringer to provide information on the origin and distribution networks of goods or services, if this is necessary to pursue the claim. The requested party should, however, first demonstrate – in a credible manner – circumstances indicating an infringement. If the court orders that such information be provided, the infringer should provide it – under pain of criminal liability – either in written or electronic format.

How else are lawyers in Poland looking to strengthen IP rights? Are there any further amendments to IP legislation?

Maciaszek: The current wording of the draft of the new law on IP courts, which is part of the Civil Procedure Code, may still be modified. Nevertheless, no substantial changes to the draft are expected. It is probable that the specialist IP courts will be introduced in the second half of 2020. In the meantime, on 27 February a major amendment of the Industrial Property Law came into force, bringing it closer into line with the Patent Co-operation Treaty and the European Patent Convention.

Among some of the other changes, as of 27 February, when filing motion for the invalidation of a patent, there is no longer a requirement to evidence a legal interest. Also, during the invalidation proceedings, the patent owner will be allowed to file a motion to limit its own rights.

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Additionally the Polish government is working on the so-called National Strategy of Protection of IPRs, which should increase the current level of protection, and it will probably introduce some additional incentives for innovative companies.

Which other IP developments in the EU do you expect over 2020?

Sztoldman: A trend in Poland is the growing importance of alternative dispute resolution of IP disputes.

In 2019, the Polish Patent Office kicked off the joint programme with the World Intellectual Property Organisation concerning trademark mediation services provided in the opposition proceedings at the Polish Patent Office. Perhaps we may expect the introduction of a mandatory arbitration or mediation procedure for IP disputes in the future, in particular before hearing the case in a specialist IP court.

Błach-Morysińska: As the UK left the EU on 31 January, there will be lot of discussion on Brexit and the withdrawal agreement. For IP practitioners the most important will be withdrawn agreement regulations on IP rights. As the UK is an important market, it may have a great impact on our client’s IP strategies.

An interesting thing to observe will be EUIPO Convergence programmes that aim to unify IP law in EU Member States. The CP8 on use of a trademark in a form differing from the one registered comes to an end and the wording of Common practice will be accepted by EUIPO and Member States IP Offices soon. The pending projects refers to new types of trade marks – examination of formal requirements and grounds for refusal (CP11) and Evidence in Trade Mark Appeal Proceedings (CP 12). Both programmes will have impact on IP practice in the EU. l

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BRIEFINGS

TESTING AUTONOMOUS VEHICLES IN SLOVENIA – A WINDING ROAD The country is to allow testing of AVs on selected roads – terms and conditions apply

E

U Member States have been keen on autonomous vehicle (AV) technology for some time. An early case in point is the 2016 Declaration of Amsterdam, a high-level document on the co-operation between Member States on AV development. Being a significant transit country, Slovenia shares this interest. In December 2019, its Ministry of Infrastructure published the most recent draft amendment to the Road Traffic Rules Act (the Draft Act) which permits and regulates testing – but not yet the actual deployment – of AVs on Slovenian roads. As of the beginning of February 2020, the Draft Act has not yet been enacted into law. This Briefing outlines the key features of the proposed regulatory regime.

Definition of AVs The Draft Act defines AVs as motorised vehicles equipped with systems capable of independent driving in road traffic without the driver’s intervention. The AVs need to be marked as such in order to be recognisable by other traffic participants.

Where can they drive?

The Draft Act allows for the designation of an area to be used for AV testing, implying that AV testing will only be allowed in such specialised areas and not in general traffic.

The designated AV testing area is to be equipped with regular traffic signage and signals.

Three road network locations have already been mentioned in the media as potential AV testing grounds: BTC City, a sprawling shopping and business district in Ljubljana, full of pedestrians, slow traffic and other events guaranteed to thoroughly test AV perception systems; a north-eastern highway section bordering Austria and Hungary where the three countries intend to set out an international corridor dedicated to testing AV, electric mobility and connected driving technologies; and another highway corridor in the south-west between Postojna and Divača.

Role of the human driver AVs still require a human driver, who must be prepared to take control of the vehicle and may not be a ‘beginner driver’. AV drivers are otherwise subject to the same rules as the drivers of non-autonomous motorised vehicles.

Data collection The Draft Act prescribes mandatory monitoring of the AV driver by the AV’s systems during testing at all times

and recording of the obtained data. In the event of an accident or a traffic offence, authorities must be allowed access to the driver monitoring data collected within the period from 30 seconds before and until 30 seconds after the incident. Tampering with the data is explicitly prohibited.

An earlier version of the Draft Act called for a much broader scope of mandatory data collection, capturing not only the driver’s conduct but more generally the data on ‘driving and the environment’ of the AV. However, following comments by the Slovenian Information Commissioner, who judged the provision to be disproportionately intrusive for privacy, the Draft Act narrows the reach of mandatory collection. Data collected in this way must be erased by the AV manufacturer within one year, with a longer deadline applicable to the police.

Jurij Lampič, MSc (Oxon), attorney at law

Insurance and liability The Draft Act requires the manufacturer of an AV or an AV system to take out mandatory liability insurance.

This is in addition to the regular mandatory insurance taken out by the vehicle owner. The AV driver must be able to produce the insurance policy upon the authorities’ request.

How fast can they go?

The speed of AVs during test driving is limited to 100km/h on a highway and 50 km/h on other roads (unless of course a lower limit applies to a particular road section).

Supervision and sanctions The AV manufacturer will be obliged to notify the police of AV testing beforehand, providing information on the manufacturer, responsible person, AV test drivers, the AV itself (including licence plate numbers), equipment subject to testing and the intended period of testing.

AV drivers found to be in breach of the AV-related provisions of the Draft Act may be fined €200, while a manufacturer of the AV or the AV system may be subject to a fine of €2,000 (with an additional €200 payable by the manufacturer’s responsible person).

Schoenherr Slovenia, Tomšičeva 3, SI-1000 Ljubljana, Slovenia Tel: +386 1 200 09 74 E-mail: j.lampic@schoenherr.eu Web: www.schoenherr.si March 2020 | The Silks Issue | The Lawyer

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International Italy On the panel

Massimo Di Terlizzi Co-managing partner, Pirola Pennuto Zei & Associati

Luca Failla Founding partner, LabLaw

Exploring a world of opportunity

Alberto Maggi Managing partner, Legance

Filippo Modulo Managing partner, Chiomenti

As recession hits the domestic market, Italian firms are looking abroad for growth opportunities Cristiano Dalla Bona

A

s Europe’s economy is challenged by global trade wars and political uncertainty, local firms in Italy have started to seek new revenues by expanding into other markets. Having an outpost in major European hubs is still vital, but the eyes of the firms interviewed for this report are set on high-growth geographies such as Africa, Asia and the Middle East.

The lesson they are learning in their expansion?

Choosing the right local partner is a key element to deal with a different legislative and bureaucratic scenario. However, an international strategy doesn’t mean only local launches. Alliances, firms

found, can still guarantee a steady flow of referrals.

Over the past few years, local Italian firms have been looking beyond the country and have nurtured international expansion ambitions.

Why are international markets more ripe for opportunities now than before for Italian firms?

Stefano Simontacchi, president, BonelliErede: Italian firms are increasingly looking at international markets – but with considerable differences in how and where they expand. In some cases, firms simply create international alliances to increase work from inbound

Francesco Rotondi Founding partner, LabLaw

Stefano Simontacchi President, BonelliErede

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International Italy

cross-border investments. Italian firms are well aware that Europe is going through an economic downturn and this leads to fewer growth opportunities for the legal market.

Here – as at a few other firms – we opt for real international expansion: we have started operations beyond Europe. This allows us to also provide local law services in full compliance with local law. Our approach stems primarily from the fact that the Italian and European economy cannot guarantee any significant, sustainable growth in the long term. Conversely, the countries and regions we are expanding into now offer rather more attractive long-term growth prospects. That said, expansion is a complex area and requires a long-term business approach.

Massimo Di Terlizzi, co-managing partner, Pirola Pennuto Zei & Associati: I do not fully agree when you say that international markets are more important now than in the past since, they have always been appealing to Italian firms.

The point is that now there are more firms that have understood that, in order to develop new business, they must look at the international markets since the local ones alone are no longer enough. Basically, Italian firms have realised that, as far as international clients are concerned, it is easier to find new clients in their respective home countries than to contact their subsidiaries in Italy.

Luca Failla, founding partner, LabLaw: Over the years, Italy has been dipping its heel in and out of recession – straddling a very fine line. This has meant some Italian companies may have needed to look to international markets more to support their business models – and at the same time it has also created opportunities for outside investors looking to do business in Italy. International markets have long been a part of the LabLaw development strategy – as we have always looked to meet the needs of our clients at both national and international levels during both the good and the bad times.

Alberto Maggi, managing partner, Legance: I think the two factors that, together, have determined this trend are the 54

exponential growth in the percentage weight of the turnover of Italian companies deriving from foreign clients, with their consequent growing need for support to operate in markets other than Italy, and the growing presence in Italy of international firms that can provide legal services in more than one jurisdiction and that influence the competitive environment.

Filippo Modulo, managing partner, Chiomenti: International markets are fundamental to understand and help foreign clients. It is certainly a priority of our firm assisting them in their investment and development activities in the Italian market and being able to assist Italian clients expanding their business abroad. Under this strategy, international expansion ambitions do not necessarily match with the opening of new offices.

Which countries are particularly favourable territory for this expansion bid when it comes to your own strategy?

Di Terlizzi: There are many countries that are a particularly favourable territory for this expansion like, for example, the UK, Germany, France and the US where, even though there are already many Italian firms, it is important to be present.

Furthermore, our attention is focusing on regions experiencing high economic growth, such as Asia, and on African countries which are becoming increasingly interesting, too.

Simontacchi: For a few years now, we have been focusing on strengthening our service offering in Africa and the Middle East, particularly across North and East Africa, as that is where we have been seeing – and expect to continue to see – strong growth. A major string to our bow is the key role Italy has played there (for historical, cultural and geographical reasons) and will continue to play in the coming years. We have set up in strategic countries – we opened in Egypt and Ethiopia in 2016 in co-operation with top-tier local law firms, and in Dubai in 2017 – and progressively develop our reach across the entire region by partnering with other top-notch local firms.

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International Italy Failla: The obvious answer is countries with strong economies – such as the US, UK, Germany, France and Spain – which are also among Italy’s largest trading partners. However, we must not forget about the Asian markets, especially China, and South America too. Through the members of our international network, L&E Global, we are able to assist our clients with their employment law needs around the world. In addition LabLaw also has in-house German, French, and Spanish desks where we can advise foreign clients on Italian employment law in their own mother tongue.

What are the challenges in setting up shop and growing business flow in a different country?

Simontacchi: The setting-up stage is quite complex and time-consuming, particularly when it comes to getting to grips with the local regulatory framework and ensuring that the envisaged business model fully complies with local law.

Paramount to successful partnerships is selecting a local partner/partners with similar values and vision to yours; one that is truly committed to creating a true partnership. This, too, is a very delicate and multifaceted phase and, of course, must be followed by an increasing level of collaboration and team-building.

Two key challenges have to be overcome to get a new office fully up and running. Firstly, you need to ensure that it is fully integrated into the firm’s structure, that the local team feels part of the firm, that people get to know each other, and that the new office understands and adopts the firm’s policies and learns how to work in full synergy with their colleagues around the world. Secondly, a two-fold marketing effort is required: locally, to increase business from local players, and centrally, to promote the new office to clients interested in or already operating in that area.

Di Terlizzi: The biggest challenge in setting up shop and growing business flow in a different country is to identify the most suitable people to carry on the business in that specific country.

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Is it important to have an international outpost or are alliances with foreign firms still a valuable substitute?

Francesco Rotondi, co-founder, LabLaw: From our experience, our alliance with L&E Global has certainly been the correct choice for our firm – but also, more importantly, for our clients. It has provided stability and peace of mind knowing that they are working with very well-established and highly ranked partners with years of experience in the field and a known history in their local jurisdictions.

Perhaps this is because LabLaw is a boutique firm – concentrated and nimble. If you are, on the other hand, a large Italian multi-practice firm with many pieces which must be put together to make the business model work (dare we say ‘cross-selling’) then perhaps it would be more appropriate to undertake a flag-planting operation in different jurisdictions.

Simontacchi: Alliances are certainly useful to feed crossborder inbound referrals, and international offices are essential to offer new services. But I do not believe that alliances can substitute for international offices, especially in Africa and the Middle East. I do not think an Italian law firm can succeed in those regions through a local alliance without also establishing its own local presence – in other words, not having lawyers with a deep knowledge of the firm on the ground is not a good model in the long term.

In my view, you have to bring together the international expertise of senior professionals at the firm with the local expertise of top professionals in the region, as this is the only way to be able to meet the needs and the expectations of both international and local clients. As you will have gathered, this is the path we are pursuing.

Di Terlizzi: There is no fixed rule. In some countries, it is better to have an international outpost or representative office, while in others it is more effective to have close business relationships with local firms.

How do you think your international expansion will change in coming years, and which factors might influence it?

Maggi: We aim to continue to be a leading firm in the domestic market, providing legal services exclusively in relation to Italian law. We are not aiming at international expansion, but rather at strengthening, from an inbound and outbound perspective, our relations with the jurisdictions with which Legance has always had privileged relations.

Simontacchi: Our expansion in Africa and the Middle East is with a long-term view, and I do not see that changing. The economic and geopolitical developments in the regions will, of course, affect the when and where we expand further, and who we partner with. However, our focus will continue to be to increase our presence in those regions.

That said, we are also looking further afield (especially in Europe, where we have offices in London, Brussels, a small outpost in Frankfurt, and a network of best friends in five countries) to evaluate whether additional outposts might help us promote our international competencies, such as international taxation, international arbitration, public international law, economic diplomacy and others.

And, of course, we are always on the lookout for opportunities to further strengthen our international network. ●

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International Iberia

Real estate is hot property again

After years in the wilderness, the property markets of Spain and Portugal are undergoing a renaissance, creating new opportunities for lawyers Ana De Liz

T

en years ago, Spain was knee deep in a crisis. Portugal too was touched by the global recession after 2008, and was one of the hardest-hit countries in Europe, having to secure loans from the IMF and the European Union. The past decade has seen the leading Iberian firms look abroad for growth. Spanish firm ECIJA is the latest to jump on the bandwagon. It recently merged with four-partner Mexican firm Chacón & Rodríguez, making it one of the largest Spanish firms in Latin America. ECIJA now has 13 offices on the continent, most established through similar mergers.

While Latin America is still seen as a land of opportunity for leading players in the Iberian legal sector, firms have also reported growth in the domestic markets. Portugal’s economy is booming thanks to a period of political stability and a rise in tourism, while Spain is also on a steady road to recovery after years of

austerity. Law firms have attributed the economic recovery in both countries to changes in the real estate sector, which has in turn become a strong source of work and revenue for them.

“There was not a relevant market for lawyers to specialise in real estate five years ago and now, given the amount of work generated by these transactions, real estate practice areas are growing on a day-to-day basis,” says Patrícia Viana, partner at Abreu Advogados and co-head of the firm’s real estate practice.

Stability and tourism fuel recovery “It is not possible to look at Portugal in 2012, look at it in 2020, and see a similarity. Portugal was in a deep economic depression in 2012, which influenced and was influenced by the real estate sector enormously,” Viana says. The growth of the sector, she adds, meant the beginning of the end of the depression.

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The golden visa and the nonhabitual tax residence programmes shifted the eyes of foreigners to Portugal” Patrícia Viana, Abreu Advogados Lorenzo Clemente of Garrigues

Francisco Lino Dias, a partner at PLMJ, shares the optimism: “Most of the major transactions carried out over the past years have been real estate-related, including the sale of real estate portfolios, nonperforming loans, landmark buildings, sale and leaseback transactions in the tourism sector, and other matters.”

The average price of residential real estate in Spain reduced by approximately 45 per cent during the crisis between year 2007 and 2014, points out Ramón Gil, a partner in Cuatrecasas’ Madrid office.

“The recovery of the Spanish real estate sector started in 2014-15, fostered by the solid growth of the Spanish economy, the reduction of the unemployment rates and the low price of real estate and low interest rates. We have had now over four years of solid growth in the Spanish real estate market,” he says.

According to the data and market intelligence platform Transactional Track Record, the real estate sector was the most active of 2019 in Spain, with a total of 639 transactions, despite overall M&A activity in the country decreasing, with the overall number of transactions falling 2.7 per cent, and their value by 16.4 per cent.

Tourism has been fuelling market recovery in both countries. Viana points out that it resulted in the recovery of several resorts that were either abandoned, or in banks’ portfolios, and has led to several urban renewal programmes. For Gil, the main drivers of the growth, apart from the success of tourism as the main Spanish industry, have been the cleaning up of balance sheets of the Spanish banks (through the sale of non-performing loans and real estate-owned portfolios, for example) and the recovery of the residential market.

Garrigues’ real estate partners Héctor Muñoz and Lorenzo Clemente take the view that the main change in the real estate industry in recent years has been a sharp drop in the volume of residential development and the rapid growth and consolidation of SOCIMIs (Spanish REITs), which has led to a significant 58

concentration and professionalisation of the industry.

“There has been major development in logistics sector properties, a consequence of the boost experienced by e-commerce and the need to have adequate spaces close to urban centres to satisfy the demands of online commerce; the retail sector is clearly in a phase of being reinvented, shopping centres are being extensively refurbished in order to prepare them for the omnichannel strategies, as operators are aiming to convert them into places of optimum customer experience,” Muñoz says.

Foreign investment funds real estate expansion Both in Spain and Portugal, golden visas have been a prominent feature in real estate development.

Throughout the Peninsula, a €500,000 (£424,000) investment allows non-EU citizens and their families to live and work in Spain and in Portugal, with some 8,000 having been issued since the schemes started in the early 2010s.

“The golden visa and the non-habitual tax residence programmes shifted the eyes of foreigners to Portugal.

Tourism also led the way, and by doing so, transactions in the hotel and leisure sectors were seen by foreigners as a safe investment,” Viana says.

“We are seeing more and more foreigners looking into urban refurbishment and to the transformation of cities’ historical centres as quite appealing. Foreign funds and family offices are currently a big presence in all Portuguese real estate events and are often part of the biggest transactions in Portugal,” she adds.

The golden visa programme in Portugal kicked off in 2012 and has since pumped €4.5bn into the real estate market; nevertheless, it could be limited in future. Prime minister António Costa has proposed a restriction to golden visas to property purchases outside Lisbon and Oporto, in an attempt to attract investors to regions with a lower population density, with the aim of containing speculation in the real estate market which could hurt access to affordable housing in Portugal’s larger cities.

Clemente points out that in Spain, after the 2007 crisis, large opportunistic investment funds began to appear from all sources, but above all from Northern and Central Europe and North America, which traditionally had little or no presence in the Spanish market, .

“Since the stabilisation of the market and the emergence of the Francisco SOCIMIs, the funds Lino Dias arriving in Spain of PLMJ

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International Iberia have targeted more stable investments. All of this has obliged Spanish professionals, as well as the real estate industry, to adapt to stricter international standards when analysing their investments, profitability, contractual forms, corporate governance, etc,” he says.

International real estate partners have added to the competition of different players in the real estate market, but financing entities are also stricter when analysing the granting of real estate financings, says Gil. “This has led to many real estate developers looking for partnerships with international real estate funds to finance the early stages of the development process”.

Developments demand changes in practices All of the lawyers contacted for this report say their practice has changed as the real estate industry has evolved, with the number and speed of real estate transactions increasing and more intrinsically connected with the other market areas they touch.

“A deeper knowledge on financing of transactions, AI technology and the impact of globalisation are required nowadays for a real estate lawyer,” says Yolanda Lobao, a partner at ECIJA. Clients in recent years have called for a greater knowledge of the various industries in which each one operates (shopping centres, hotels, student housing, logistics or residential) and of their market practices. They also demand a special agility in

Patrícia Viana, partner at Abreu Advogados and co-head of firm’s real estate practice

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A deeper knowledge on financing of transactions, AI technology and the impact of globalisation are required nowadays for a real estate lawyer” Yolanda Lobao, ECIJA

transactions, not only in risk assessment but also in completion of the transaction itself. There is less room for in-depth legal discussion; decision-making requires immediacy and co-operation.

“In a firm such as ours, transactions requiring the intervention of professionals from various areas of expertise have been a constant for many years (in particular, experts in planning and tax matters). In recent years, we have increasingly relied upon the services of experts on the environment, complex financing and insolvency law,” Clemente says.

Technology will drive future growth Lobao’s firm ECIJA has a focus on IP, technology, media and telecommunications, and as such she sees that one of the big trends for the Spanish real estate market will be the implementation of blockchain and smart contracts.

The first time cryptocurrencies were used in a real estate transaction in Spain was in 2018, but there were some issues. Blockchain’s validation technology would also imply elimination of all intermediaries and save a considerable amount of money and time for investors; however given the lack of existence of a human component in certain transactions such as the purchase of a main home, blockchain’s implementation marketwide is uncertain, at least in the short term, she explains.

“Executing rental and purchase contracts with smarts contracts will be possible via blockchain; however the technology is not fully ready as it has regulatory implications not resolved yet such as the compliance with data protection laws,” she adds.

In Spain this year, the stage is also set for what may be substantial legislative changes, say Muñoz and Clemente. Possible reforms in tax legislation have been announced (including corporate income tax and the SOCIMI regime), as well as in the legislation on urban leases and environmental matters.

Gil, on the other hand, expects that alongside an increase in the use of technology throughout the legal industry and in the real estate sector, other trends will be: investment to focus in logistic real estate and hotels; consolidation of the residential market in the form of acquisitions and mergers of real estate developers; banks continuing to clean up their balance sheets; and an increase in the development of alternative real estate assets, such as student and senior citizen housing, self-storage, co-living and co-working.

In Portugal, Viana also predicts investment in new formats of developments such as co-working and co-living, as well as the incorporation of Portuguese REITs. Technology is already used in real estate transactions in Portugal as all main public services that are needed for these transactions have online services – registrations, requests for certificates, payment of taxes, consultations of plants, among others. Viana says: “As for technology surpassing real estate lawyers, that is something that is always talked about, but I do not think the market will see it in 2020.”

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BRIEFINGS

THE APPLE DOESN’T FALL FAR FROM THE TREE – TELECOMS DEALS IN PORTUGAL Recent deals in the Portuguese telecoms market follow the sector’s global trends

T

he opening up of the Portuguese telecoms market saw a proliferation of players and was followed by an inevitable period of consolidation.

Adaptability to shifting consumer needs, financial and strategic stamina to bear continued investment and the capability to deal with increasing regulatory intervention has led key players in the market today to be within global groups such as Vodafone and Altice, or domestic conglomerates, such as NOS. As the push for continuous growth continues, M&A transactions have provided players with the means to continue to create value. Recent deals have proven to be consistent with key trends observed in telecom M&A worldwide.

Altice led the way to what can be seen as a wave of post-consolidation M&A transactions, in September 2018, when it created and sold 75 per cent of Omtel, the first independent tower company in Portugal, to Morgan Stanley Infrastructure Partners (MSI) and Horizon Equity Partners. The transaction valued Omtel at an enterprise value of €660m, based on the existence of a 20-year master agreement with Altice/MEO and the expected growth of the market.

This first-mover transaction brought long-term international institutional investors to the Portuguese telecoms market and, through the retention of Altice’s 25 per cent interest, also showed that joint ventures could be viable options to obtain value from existing assets.

Viability reinforced Fiber infrastructures also played a critical role when in December 2019 Altice announced the creation of Altice Portugal FTTH (fiber-to-the-home), the first nationwide fiber wholesaler, in a strategic partnership with MSI, who acquired a 49.99 per cent stake, based on an enterprise value of €4.63bn. Partnerships in fiber infrastructure are not new and NOS and Vodafone have been expanding their 2017 agreement in order to upgrade each footprint to more than five million houses.

The Portuguese telecom market’s vitality was further reinforced with Cellnex’s acquisition of Omtel in January 2020, at an enterprise value of €800m. As Europe’s leading operator of telecommunications infrastructures, with approximately 58,000 sites, this transaction made Portugal the eighth European country in which Cellnex is present, incorporating Omtel’s portfolio of approximately 3,000 sites and a projected roll out of 400 more sites by 2024.

Established group NOWO/ONI, emerged as a relevant energic player with the acquisition last year by MásMóvil (a Spanish telecom operator with an interesting business

case, using mainly third-party infrastructure) and is now eager to get a slice of the market.

2020 will be a dynamic year for the telecom market.

From a business perspective, the deployment of 5G will create a new ecosystem, spark innovative services and open market opportunities. The Government strategy for 5G was approved on 7 February, with major coverage targets to be reached between 2020 and 2025. Ensuing this approval, ANACOM (the regulator) published on February 10 a draft regulation on the 5G auction.

The rules proposed (e.g. national roaming, MVNO operations and price discounts) intend to foster the entrance of new operators. The auction should start in April and be concluded in June and may generate revenues up to €237m, that should be used to support and promote digital inclusion measures.

Efficiency enhanced As with the recent wave of deals, infrastructure assets are under scrutiny for maximum enhancement and strategic partnerships. This was kicked off earlier this year with the announcement of a new partnership by NOS and Vodafone for the sharing of mobile network assets (without spectrum sharing), to enhance the efficiency of investments and achieve larger and faster coverage of the national territory. Following Altice’s fiber deal and the appetite shown by international investors, existing players may consider innovative transactions involving parts of their network.

2020 will also be a year of substantial changes in legal framework. The new European Electronic Communications Code should be transposed by the end of the year and a comprehensive review of the legal regime should be expected. Apart from 5G, regulation in broadband markets, definition of access and pricing obligations on infrastructure assets and safety and integrity of networks should be the focus of ANACOM’s attention this year.

History proves that the Portuguese telecoms market is one of the most dynamic and challenging sectors for M&A transactions. The recent trend in infrastructure and non-core network asset deals is expected to continue.

Maria Cunha Matos, managing associate, M&A

Tiago Bessa, managing associate, ICT

Rua Dom Luís I, 28 1200-151 Lisboa, Portugal Tel: (+351) 21 311 3516 E-mail: mam@vda.pt, tcb@vda.pt Web: www.vda.pt March 2020 | The Silks Issue | The Lawyer

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SUPPLY OF SUPPLY OF LEGAL LEGAL SERVICES

SERVICES

Mayor’s Office forasPolicing and Crime (MOPAC), as the contracti The Mayor’s OfficeThe for Policing and Crime (MOPAC), the contracting authority, is re-tendering is re-tendering the National Services Framework for t the National Legalauthority, Services Framework for the supply of legal services.

This is toLegal complement any existing in-house service for upof to 43 Police services.

Forces, (represented their respective Police and supply legal Thisthrough is to complement any existing in-hou Crime Commissioner) their partner agencies, the functional bodies of the GLA, Local Authorities service for up to 43 Police Forces, (represented through their respect and successors in title throughout England and Wales and Northern Ireland. A full list of all eligible and Crime Commissioner) partner agencies, the functio customers can be Police found on bluelight with the tender documentation (see their below). The services are to be called off over abodies four year period. of the GLA, Local Authorities and successors in title througho England and Wales and Northern Ireland.

A full list of all eligi documentati (see below). The services are to be called off over a four year period.

The MOPAC invites expressions of interest from suitably experienced firms of solicitors in tendering customers can be found bluelight with the tender for a framework agreement, for the following five lots of legal on services: • • • • •

Procurement, Contract and Commercial and Governance: Complex Projects and Disputes Procurement, Contract and Commercial and Governance: Business as Usual The MOPAC invites expressions of interest from suitably experienc Civil Litigation, Personal Injury and Debt Recovery. firms of solicitors in tendering for a framework agreement, for t Employment Property (including Commercial, Residential Property & PFI) following five lots of legal services: -

Suppliers who wish to express an interest in providing services under any or all of the above lots Procurement, Contract and atCommercial will need to register on • the e-tendering system being used for this procurement Complex Projects and https://bluelight.eu-supply.com/opportunities.

After registration hasDisputes been completed you should select product category •79100000 Legal Services.

You will then be to get access the tender Procurement, Contractable and Commercial documentation under contract reference number SS/3/19/176

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Governan

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Governan

Business as Usual The tender documentation only be available via the e-tendering system on Friday 28 February • will Civil Litigation and Personal Injury and Debt Recovery 2020. The guidance note•included with the documentation will advise on the process for this Employment procurement. Please ensure you read the guidance document before completing any documentation.

Property (including Commercial, Residential The deadline for receipt•of completed Standard Selection Questionnaire (SSQ) is 13:00 on 30 March Property & PFI) 2020.

Suppliers who wish to express an interest in providing services und on the e-tenderi system being used for this procurement at https://bluelight.e supply.com/opportunities.

After- registration has been completed y For further information contact: Hannah Lloyd, Metropolitan Police Service, Procurement Services should select product category 79100000 - Legal Services. You w 8th Floor, Empress State Building, Lillie Road, London.

SW6 1TR then be able to get access the tender documentation under contr referenceEnumber SS/3/19/176 mail: hannah.lloyd@met.police.uk

Following the evaluation of SSQ responses, a shortlist of suppliers or alland ofInvited the above lots willrequirement. need to register willany be selected to Tender for the

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07886 566254 will only be available via the e-tenderi The tender Telephone: documentation system on Friday 28 February 2020. The guidance note included w the documentation will advise on the process for this procureme The Lawyer | The Silks Issue | March 2020 Please ensure you read the guidance document before completing a documentation.

The deadline for receipt of completed Standa Selection Questionnaire (SSQ) is 13:00 on 30 March 2020.

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For advertising enquiries contact the Commercial Manager on 020 7943 8060 or @TLCareers email jamal.alleyne@centaurmedia.com |

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Applications are invited for new Judicial Assistants, assisting the Justices of the Supreme Court (who also sit in the Judicial Committee of the Privy Council) by carrying out research in connection with appeals and summarising applications for permission to appeal.

Candidates must be qualified in one of the UK jurisdictions as solicitors, barristers or advocates at the time of submitting their application. In addition, they must also have completed a training contract or pupillage by 1 October 2020. Candidates will normally be intending to pursue a career in advocacy or have returned to university to carry out postgraduate research with a view to returning to a career in advocacy.

The Supreme Court of the United Kingdom and The Judicial Committee of the Privy Council

Judicial Assistants to the Justices Fixed term appointments: 14 September 2020–30 July 2021

For further details visit: www.hays.co.uk/jobs/supremecourt Application forms should be submitted by midnight on Monday 30 March 2020.

Interviews are likely to take place week commencing 18 May 2020. Salary: £36,500 per annum.

The Supreme Court of the United Kingdom is an equal opportunities employer

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