Understand Your Rights. Solve Your Legal Problems
Steve Whiter, director at Appurity, offers an explanation of the concept of zero trust and the circumstances under which it might be right for your firm.
Zero trust – it sounds ominous. Is it impossible to have even the slightest smattering of trust in anything? Sadly, when it comes to your firm's cybersecurity, a zero trust approach is becoming a de facto standard.
In essence, the notion of zero trust in terms of security is the mantra that you do not automatically trust anything inside or outside of your network perimeters. Rather, you must verify anything and everything that attempts to connect to your IT systems before access is approved. Why has it become necessary to adopt such seemingly draconian security measures? In a word, breaches.
Your firm (and all the others) handle a great deal of sensitive information – that is the nature of the beast. We are talking about things like corporate intellectual property, personal client information and even financial data. It is also likely that a significant proportion of this information is accessible to your people via their smart devices or laptops. If you factor in the massive increase all firms have witnessed in the COVID-enforced remote working habits, then the demand for accessing your firm’s networks from outside the ‘normal’ perimeters will have probably sky-rocketed. Your firm’s IT team needs to grapple with an entirely different IT landscape… one which operates largely outside of the traditional centralised network.
With these challenges come the opportunities for cybercriminals to get their hands on all of that valuable information. The attack surface is now much larger, potential entry points more numerous. Under these circumstances, a zero trust approach to your security really does begin to make sense as you look to lock down your defences.
But before you fully commit, what are some of the considerations to take into account before investing in Zero Trust Network Architecture (ZTNA)? Here are the key factors.
In essence, the notion of zero trust in terms of security is the mantra that you do not automatically trust anything inside or outside of your network perimeters.
An important facet of your initial considerations should be the ease of deployment and scale, i.e. whether any investment will support the firm's needs to allow for appropriate growth and expansion. Any successful implementation relies on simple and straightforward onboarding processes for users. Similarly, stick with technology that is easy to manage and that does not require a particularly specialised skill set. Also bear in mind what deployment model suits your needs best – on premises, SaaS-hosted or perhaps a private cloud?
‘Legacy apps’ are software programmes that are outdated or obsolete. Such apps are part of the network and could be things like the mainframe or HR systems, which are too commonly left out from the ZTNA. With the proliferation in working from home (WFH), the use of remote desktop protocol (RDP) has gone through the roof, so check with your intended solutions provider exactly how support for RDP will be achieved.
Historically, many legacy apps throw up the challenge of being too expensive to re-architect the systems in which they exist. If, in that case, such legacy apps are ignored in the ZTNA approach, they can become the weakest link.
We have already touched on the impact that COVID has had on remote working. However, the truth is that this shift was already starting to happen before the pandemic, with firms planning on the cultural and technical changes that needed to be made. Though it remains unclear for most firms precisely how their people will be working moving forward, it is clear that some kind of flexible working arrangements will exist. Whether it is remote, WFH or hybrid, your people will still need secure access to any applications.
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To make things easier, your firm can protect access to apps by employing a management process known as conditional access. In this way, a single policy per user can provide access to an application, whether that person is working from home or at the firm’s HQ. Conditional access policies provide access only to authorised users and only to the apps that they specifically need.
Essentially, when we refer to ‘agentless’ we are describing an operating environment where no service or other process needs to run in the background on the machine. The use of an ‘agent’ typically ends up complicating the overall deployment, and it can also interfere with any VPN service or any other agents in use. At the end of the day, both agent-based and agentless monitoring are able to meet the needs of different users – it ultimately boils down to monitoring requirements. But agentless monitoring offers less complexity and works seamlessly with networks and storage devices.
The demand for accessing your firm’s networks from outside the ‘normal’ perimeters is going up. Your firm’s IT landscape has shifted - it now operates largely outside of the traditional centralised network. Cyber thieves now have a much larger attack surface to play with, so adopting a zero trust approach to your security offers up a truly robust defence.
Steve Whiter, Director
Clare Park Farm, Unit 2 The Courtyard Upper, Farnham GU10 5DT
Tel: +44 0330 660 0277
E: info@appurity.co.uk
Steve Whiter has been in the industry for 30 years and has extensive knowledge of secure mobile solutions. For over 10 years, Steve has worked with the team at Appurity to provide customers with secure mobile solutions and apps that enhance productivity but also meet regulations such as ISO and Cyber Essentials Plus.
Appurity is a UK-based company that offers mobile, cloud, data and cybersecurity solutions and applications to businesses. Its staff draw upon a wealth of in-depth knowledge in industry-leading technologies to aid their clients in developing secure and efficient mobile strategies. Working closely with its technology partners that include Lookout, NetMotion, Google, Apple, Samsung, BlackBerry and MobileIron/Ivanti, Appurity is delivering mobile initiatives to customers across multiple verticals such as legal, financial, retail and public sector.
Climate change is the biggest existential crisis facing us today. Unless urgent action is taken, it will devastate future generations and transform life on our planet. As lawyers and human beings, we have the responsibility to help to preserve our planet and to assist our clients in doing the same by helping them navigate the law.
Indeed, the Law Society’s recent – and very welcome – resolution urges solicitors to, “Engage in climate-conscious legal practice by… approaching any matter arising in the course of legal practice with regard to the likely impact of that matter upon the climate crisis.”
Preserving biodiversity has long been overlooked in efforts to tackle climate change, but, as stated by a recent landmark study by the Zoological Society of London, treating the global climate change and biodiversity crises separately is counterproductive and could even deepen the problem. Life on our planet is already disappearing, with 15 plants and animals declared extinct or extinct in the wild in 2020, while The International Union for Conservation of Nature’s Red List of Threatened Species, which assesses the level of threat to the more than 138,300 species of animals, plants and fungi currently in its database, warns more than 38,500 species are threatened with extinction.
Clearly, the Environment Act alone will not solve the UK's contribution to the climate and biodiversity crisis, but there are some hugely welcome measures that the Act introduces to assist lawyers in their efforts to use the law to protect our planet.
Treating the global climate change and biodiversity crises separately is counterproductive and could even deepen the problem.
The environmental credentials of a business’s supply chain will already be of concern to any company with an interest in sustainability and preserving the environment from a reputational standpoint. However, the Environment Act goes further, increasing due diligence requirements placed on businesses to ‘green’ their supply chains, including a duty to establish a system for identifying, assessing and mitigating the risk of illegally produced forest commodities entering their supply chains.
Lawyers can assist businesses in meeting new requirements by writing their due diligence policies, as well as working with the client to help them to ‘green’ supplier contracts. To protect clients and their reputations, ‘green clauses’ can require net-zero standards for suppliers, helping clients meet their own net-zero targets by reducing their Scope 3 emissions. They can use incentive-based models in agreements to ensure sustainability objectives are adhered to and maintained or use late payment mechanisms to support green causes or off-setting. There are also opportunities to introduce green execution protocols, which lawyers and their clients can collectively agree in heads of terms at the start of an execution, minimising the carbon footprint of deal execution.
Lawyers can make contracts and processes green in a multitude of ways, working with clients to ensure that their business partners are aligned with environmental goals.
The Government’s landmark Environment Bill introduced legislation for conservation covenant agreements, proving there is growing recognition of the importance of protecting the environment, wildlife and habitats.
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Conservation covenant agreements enable a landowner to enter a voluntary, but legally binding, contract with a responsible body, such as a charity or local authority, to preserve wildlife, habitat or heritage assets. Conservation covenants, binding agreements with remedies for breach including specific performance, damages and injunctions, are a tool where landowners can leave a lasting legacy and create ecological benefits for generations to come.
Whether the obligation is to preserve ancient woodland or to require a biodiversity net gain, it will be registered with the Land Registry as a local land charge – meaning if the actions of a subsequent owner circumvent the terms of the original agreement while the obligation is still binding, they may face prosecution, even 150 years later.
If landowners can be encouraged to support conservation covenants, they can be a key asset for preserving biodiversity. Lawyers may need to raise awareness of new legislation among clients and how conservation covenant agreements can help clients fulfil their environmentally friendly aims and wishes.
The Act also extends some protections for the natural environment, including a requirement for local highway authorities to consult with communities before felling street trees (unless the trees qualify for certain exemptions, as may be the case with trees infected with ash dieback).
Consultation must be in accordance with established principles and regard any guidance issued by the relevant Secretary of State for the present purpose, including that local authorities must give sufficient information to give ‘intelligent consideration’ – meaning that consultations must be available, accessible and easily understood so that consultees can provide an informed response.
Law firms can provide guidance to local authorities to ensure they are acting within both new and established principles, as well as assisting their clients with essential record-keeping and audits on decisions made. Lawyers will also be able to assist local authorities in the development of ‘tree felling’ policies, consultation and internal governance. For local authority clients, documenting decision-making and actions taken will prove critical in defending any challenge that consultation should have been undertaken in a given instance.
Local authorities may also need to consider how tree felling fits into an environmentally friendly agenda and ‘green’ decision-making, alongside any commitments around sustainability or to mitigate climate change. Tree felling – even when justified – may have greater implications for a local authority client’s reputation, now that the Act may increase scrutiny on decisions made, particularly for local authorities who have declared a ‘climate emergency’. Lawyers can of course assist in protecting the reputation of the client should a challenge arise.
Tree felling – even when justified – may have greater implications for a local authority client’s reputation.
Parts of the Environment Act have potentially huge implications for developers, including Schedule 14, which makes provision for a 10% biodiversity gain to be a condition of planning permission in England.
Coupled with the application of biodiversity net gain requirements to nationally significant infrastructure projects, such as major transport developments (the likes of HS2), the Act should put pressure on developers to become more environmentally aware and to consider developments and actions based on how they will affect an area’s biodiversity.
An example of this was seen last year, when the HS2 infrastructure project faced criticism for felling a 300-year-old tree near Leamington Spa with the justification that they are planting replacement trees and shrubs. The quality of HS2’s replanting programme was also criticised, with a claim that many of the saplings had died due to not being planted properly.
Lawyers can assist developers by helping them navigate new laws, assess any plans for biodiversity net gains to ensure they fit within legislation outlined in the Environment Act and avoid a ‘box-ticking’ exercise that may attract widespread criticism and scrutiny without fulfilling any obligations to preserve the environment.
While it is clear that some progress is being made, the Environment Act and other measures, including the recent creation of the Office for Environmental Protection (OEP), will not be enough to mitigate the climate emergency.
The OEP, which has been set up to provide independent oversight of the Government’s environmental progress, has been criticised for its limited role and powers. While the body will receive and validate complaints in relation to public authorities, it will not make any final decisions. The Environment Act, too, has faced criticism for some omissions, such as how biodiversity net gains will be measured, meaning challenges may lie ahead for legal professionals attempting to hold developers to account.
The Environment Act and other measures...will not be enough to mitigate the climate emergency.
Nevertheless, the Environment Act is certainly a step in the right direction, and should greatly assist lawyers in helping their clients protect our environment, as well as holding those who do damage to account.
Natalie Barbosa, Senior Associate
76 King Street, Manchester, M2 4NH, United Kingdom
Tel: +44 0161 470 0312
E: Natalie.barbosa@anthonycollins.com
Natalie Barbosa provides advice to charities and health and social care organisations, with a focus on fundraising regulation and advice, commercial/contractual partnerships and green projects. She also helps lead Anthony Collins Solicitors’ work in the green sector, assisting clients in achieving their sustainability goals, greening their procurement processes and working to improve biodiversity. She leads Anthony Collins Solicitors’ involvement with The Chancery Lane Project, a collaborative effort of UK lawyers using the law and contractual clauses to address the climate and ecological crisis.
Anthony Collins Solicitors is a specialist law firm with a focus on improving lives, communities and society. In the 45 years since its founding, the firm has pursued its social purpose through its work with clients across a range of sectors including health and social care, education, housing, local government and social business. Anthony Collins Solicitors has also been recognized as a top-five nationally leading charities practice.
Over 25 years ago, the seminal decision in South Australia Asset Management Corporation v York Montague Ltd (“SAAMCO”) set down the principle that a professional is not liable in negligence or in contract for loss that falls outside the scope of its duty of care. Whilst this so-called SAAMCo principle remained settled law until very recently, practitioners and the Courts have regularly grappled with its application in practice to the particular facts of each case and a wealth of case law followed in its wake. However, perhaps in recognition of the convoluted case law in this area, the scope of duty question was recently re-cast by the Supreme Court decisions in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 (“MBS”); and Khan v Meadows [2021] UKSC 21 (“Khan”) and a new test for determining the scope of duty of care of a negligent professional was set down.
Thanks to the recent Privy Council decision of Charles B Lawrence & Associates v Interco Commercial Bank Ltd (Trinidad and Tobago) [2021] UKPC 30, practitioners now have helpful guidance on how the Courts will apply the re-cast test for determining scope of duty of care. In particular, this decision shows a willingness by the Courts to depart from SAAMCo principles in favour of the new approach where the facts require it.
Intercommercial Bank Ltd (the “Bank”) received a request from a borrower for a loan, which was to be secured by way of a mortgage over a piece of land owned by Rafferty Development Limited (the “Guarantor”), who would also guarantee the loan. The Bank instructed Charles B Lawrence & Associates (“CBL”) to value the land for secured lending purposes. CBL valued the land on the basis that: (a) good marketable title could be shown; (b) planning permission would be obtained for the purposes of commercial development; and (c) that the land was unoccupied.
CBL negligently assessed the value of the land at $15 million and, in reliance on that valuation, the Bank loaned $3 million to the borrower. When the borrower defaulted on repayment of the loan it transpired that the Guarantor in fact had no legal title to the land, rendering the security meaningless. It also became apparent that CBL had overvalued the land, as it could only ever have been used for the purposes of residential development. The land was also occupied.
The Bank brought an action against its conveyancing lawyers (which settled prior to trial). The question before the Court was to what extent the loss suffered by the Bank fell within the scope of duty of CBL.
This decision shows a willingness by the Courts to depart from SAAMCo principles in favour of the new approach where the facts require it.
The Privy Council held that there were two distinct losses suffered by the Bank due to the overvaluation of the land on the one hand and the defective title on the other.
CBL contended that the loss suffered due to the defective title was outside the scope of its duty of care because a) the duty to investigate title fell to the Bank’s lawyers; and b) the valuer was not instructed, nor expected to, investigate title. CBL was not, it was argued, responsible for the security being worthless.
The Privy Council agreed, reiterating the need to consider the purpose of the advice or information when considering scope of duty by asking: ‘What was the risk that the advice or information was intended to address?’ The Privy Council found that it was not within the scope of CBL’s duty to give advice on legal title, and so the loss attributable to the defect in title should be deducted from the losses recoverable by the Bank.
In MBS, the Court suggested that there are six questions to ask in such claims, including that it was important to consider the purpose of the advice or information being given. The Court should ask itself: ‘What are the risks of harm to the claimant that the duty was supposed to guard against, and does the loss suffered represent the fruition of that risk?’
In applying this test, the Court noted that it was not the purpose of the valuer’s report to advise or give information about the title to the land. That was a matter for a lawyer, not a valuer, and the loss suffered due to the defective title was outside the scope of duty of the valuer.
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Of particular interest was the application by the Privy Council of the SAAMCo counterfactual test, i.e. would the Bank have suffered the same loss if the information or advice was correct? The MBS decision explained that the SAAMCo counterfactual test, which had been steadfastly applied by lawyers since that decision, should instead be regarded as a helpful cross-check for deciding on the scope of the duty of care. However, this would not be appropriate in each case.
The Court proved willing to depart from the SAAMCo counterfactual test in this case since it contradicted their conclusions on the basis of the test applied in MBS and Khan. Had the valuation been correct, the bank would not have suffered the same loss, as it would have had adequate security to cover the Guarantor’s default. This was, the Court concluded, one of the cases where the SAAMCo test was unhelpful.
The application by the Court of the principles in MBS and Khan provides useful guidance for practitioners on the Court’s approach to scope of duty of care in the post-MBS era. Whilst practitioners previously struggled to shoehorn a case into either an “advice case” or an “information case”, this decision demonstrates a much more fluid approach by the Courts and a move away from categorising cases as being ‘advice’ or ‘information’ cases, which is likely to be welcomed by claimants and lead to a greater proportion of liability apportioned to professional advisors. Professionals will also now find it much more difficult to escape liability on the basis that the claimant would have suffered a loss in any event.
As always, this case sounds a cautionary note to all professionals to ensure that the scope of duty of care is made clear and agreed at the outset of a retainer, and that the exact purpose of an instruction is understood and documented.
Laura Matthews, Partner
55 Ludgate Hill, London EC4M 7JW
Tel: +44 0207 246 8031
Laura Matthews is a partner in Rosling King’s Dispute Resolution Group. Laura has significant experience acting for lenders, financial institutions and loan servicers in the field of complex and high value professional negligence.
Rosling King LLP is a UK-based law firm specialising in serving the needs of financial institutions and private equity, real estate and construction clients.
In this article, health coach and former London lawyer Charlène Gisèle Bourliout illustrates the need for law firms to enshrine lawyer wellness in order to deliver sustainable high performance.
Sustainable high performance is about recognising that performance lives on a spectrum. On the one end, there is sustainable high performance, which is excelling at the work you do and delivering stellar results but doing so in a way that is sustainable, meaning you are able to continue to be successful in the long run without sacrificing your wellness.
At the other end of the spectrum, there is burnout, which is when chronic stress is not managed efficiently and there are not enough periods of rest between intense bouts of work. Over time, this stress begins to impact wellbeing at work. It can often be difficult to see it preventatively because of a culture of ‘stick it out or burn out’ that is prevalent in law.
Although outstanding lawyers have extraordinary lawyering skills, we do not necessarily learn about self-care either at law school or while working in a law firm. Lawyers are not taught how to factor in the most effective ways to rest and recover in between intense workloads and to factor in time to prime themselves for the next ‘round’ of intensity. Initiatives that help employees recognise and break down the stigma around stress are the most effective first step for building a sustainable high-performance culture.
The second step is to educate lawyers on how they can manage their stress levels with simple but effective self-care and recovery strategies that are optimised for the corporate environment. Building a culture where self-care and recovery become the norm after intense bouts of work means lawyers can effectively manage work stress and optimise their performance and wellbeing for the long run.
Although outstanding lawyers have extraordinary lawyering skills, we do not necessarily learn about self-care either at law school or while working in a law firm.
Firms are making a real effort (particularly post-pandemic) to be more proactive in looking after their lawyers’ health and wellness. The pandemic has put health at the forefront of everyone’s mind and, coupled with the remote working movement, has led to many law firms embracing digital solutions and searching for new and innovative approaches to ensure lawyer wellness.
What I believe has hindered previous attempts to ensure lawyer wellness is that they were not aimed at empowering lawyers with actionable behaviours that are suitable for the demands of their work. Law firms typically employ generic ‘one size fits all’ solutions. I believe there is a very strong individual element to wellness recommendations. It is about providing a variety of options that can be tailored to individuals and teams to meet their specific work-recovery needs.
For many lawyers the concept of self-care and wellness at work is novel; hence I recommend hands-on, interactive workshops, as these maximise engagement and help to break down barriers that may be there due to perceived ‘stigma’ around wellness. Wellness workshops are most effective when they are interactive, as this maximises attendees’ engagement and encourages a playful sense of curiosity, fostering camaraderie and helping to build a culture of wellness firm-wide that lasts. Above all, they work as well in person or when provided remotely.
How can these be implemented effectively across a firm?
The most powerful way I have found is to combine workshops with in-house coaching, which supports firm-wide initiatives but also allows me to give individual support to fee earners that may need it the most. These ‘burnout prevention interventions’ can be powerful preventative measures to support a lawyer currently struggling with work fatigue.
Since many lawyers are still reserved to open up about the stress they feel, having an in-house coach can be a very powerful way of changing culture quickly, as I am able to build relationships and deeply understand the work culture and work-life demands they face. I can then offer personalised self-care and performance coaching.
I believe there is a very strong individual element to wellness recommendations. It is about providing a variety of options that can be tailored to individuals and teams to meet their specific work-recovery needs.
I have seen dramatic positive outcomes from my sustainable high performance methods. I have seen ‘physically visible’ improvements (such as a reduction in panic attacks, anxiety or various aches, pains and tensions). However, I find the most long-lasting and powerful outcomes are the ones where I begin to notice a mindset shift around wellness at work – when I hear clients start to regain motivation and drive and re-kindle the passion for the law they once felt so strongly, whereas before I would get comments like: “I feel like I am constantly battling against a current”. It is gratifying to hear feedback where lawyers feel as though they are empowered and can take action against work stress, and where they now feel that the law firm is proactive in ensuring their wellness and performance. Another example is hearing clients say they feel more ‘health-confident’ when returning to the offices after long periods of remote working.
At a firm level, it encourages a culture that understands the needed balance between wellness and performance. This is the balance required for sustainability, and the industry leaders of the future are those investing in sustainability.
High levels of burnout, employee turnover and sick days within a workforce impact performance. It is therefore crucial to build a resilient, inclusive and diverse workforce for a sustainable future and to align the firms with ESG frameworks. Put simply, happy and healthy employees are more productive, performant and effective.
By 2029, the Millennial and Gen Z generations will make up 72% of the world’s workforce. These generations place a greater importance on sustainability concerns and will expect more from employers on these issues. A company's wellness strategy is becoming increasingly important to attracting and retaining talent, as well as cultivating a sense of ‘belonging’ and ‘loyalty’ to the firm to avoid turnover.
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At the individual level, it sets in an understanding and expectation in the lawyer that ‘burnout’ is not inevitable and one’s health and wellness does not need to be sacrificed for career success. By understanding how we need to balance work stress with recovery, lawyers can take proactive steps to perform self-care practices which are supported and understood by their law firm and team.
Corporate wellness is a two-way street. Law firms have to play their part in fostering a culture of wellness, but so too do individual lawyers have to champion their own wellness. It is this negotiation that I am actively engaged in and one that I believe is going to have a powerful and lasting impact on the health, wellness and performance of lawyers.
Charlène Gisèle Bourliout is a health coach, wellness consultant and burnout prevention adviser dubbed the “Soulicitor” by her clients. A former London lawyer, Charlène coaches her clients on personal and professional life optimisation through a combination of high-performance coaching, burnout prevention and mindset optimisation.
We hear from Martyn Bowie, director of Streetwise Safety Training and a use-of-force expert witness, on the laws that govern the use of force in the UK and the friction between these laws and real-world events.
The current laws that govern the use of force are as follows:
Common Law. Any force used is unlawful unless it is used to:
Sect 3 Criminal Law Act 1967. This is used to determine if the amount of force used was “reasonable” in the circumstances. This can be broken down further, as a person’s actions would have to be seen as “proportionate and necessary”. Having attended and given evidence as an expert witness in court, those two words are often debated at some length.
Section 76 Criminal Justice and Immigration Act 2008. This law was introduced to try and bring together the human factor in relation to the use of force. However, in its usual way, the judicial language used can be difficult to put into language that people understand. In essence, the Act provides clarification of the operation of the existing common law and statutory defences. It neither abolishes the common law and statutory defences, nor does it change the current test that allows the use of reasonable force.
There are two things that should be considered when deciding whether the force used was reasonable. These are adopted from existing case law.
They are:
In essence, the Act provides clarification of the operation of the existing common law and statutory defences.
The words of Lord Morris in (Palmer v R [1971] AC 814) emphasise the difficulties often facing someone confronted by an intruder or defending himself against attack: “If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken”.
Under certain circumstances, another law applies:
Police and Criminal Evidence Act 1984. These powers relate to warranted officers only when conducting certain activities under PACE, such as stop and search, fingerprints, taking of DNA and search powers whilst in custody (England & Wales only).
The National Decision Model was introduced to update the conflict resolution model, which emergency services and a wider range of companies now use to assess the risk when dealing with incidents. This model also allows those who have been involved in an incident to review their actions and decisions in a logical order and help them with report or statement writing or, indeed, giving evidence. This model also provides further information on subject profile behaviour as well as impact factors that will affect the way in which individuals would deal with an incident and those involved.
The model itself is designed for any incident where action is taken to deal with an event. As with all models, it provides limited guidance. The actions of those involved will always be different, as we all deal with events in our own way due to numerous factors – some of which the National Decision Model highlights, but a lot of which it does not.
Some of the most common tensions when any use of force is questioned are those of a person’s actions. We are all different and, as discussed earlier, will all deal with an event in our own way.
A lot of this is due to our personal perceptions based around the individuals we are dealing with. These are commonly known as impact factors. To a certain extent, they will dictate how we will respond and act, working at the same time are our own personal experiences which shape us as individuals. There is also the “chemical cocktail” which the body uses when we are under a perceived threat or are in danger; this cannot be controlled and is commonly referred to as the “fight or flight” effect. These responses are the real-world actions of someone dealing with an event.
We are all different and, as discussed earlier, will all deal with an event in our own way.
Impact factors affect everyone who is dealing with an event. The National Decision Model shows several of these impact factors, but there are many more. These factors influence how we as individuals weigh up our own options when dealing with a traumatic event and revolves around both what we see and our own psychology. These together will always affect how we deal with individuals. Some common impact factors include drink and drugs, weapons, numbers, gender, environmental factors, age and skill level (if known). There are many others. All of these will affect a person’s decision-making ability.
Through years of training and providing advice to countless recruits and serving officers, I would always discuss the way in which witness statements, pocketbook entries and reports were provided when dealing with the use of force. As discussed earlier, the National Decision Model would provide the means to write a chronological account of the incident. However, it is sometimes the case that whilst those involved in an incident can write a detailed account of their actions, it is just as important to complete a detailed account of what they considered but did not do. It is the omission of such details that usually takes up time to explain during any legal investigation and is the cause of many debates between prosecution and defence.
My job as an expert witness is to advise counsel on all matters relating to the use of force – using the National Decision Model and all its components, looking at the event from a personal angle as their client may have seen it. From this, counsel can look at the legal side to form their defence or prosecution, depending on who is asking for my opinion.
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Whilst the law would make us believe the use of force is straightforward, it is in fact nowhere near. Each use of force is not the same, so each time force is used by a different person, it must be judged while taking into account all the facts relating to their actions on an individual basis.
Martyn Bowie, Director
21 Somerley Dr, Crawley RH10 3SU
Tel: +44 01293 922119
E: info@streetwise-safetytraining.co.uk
Martyn Bowie
I am a military veteran and a retired police officer with 30 years of service. I own Streetwise Safety Training Ltd. With an exemplary military and home office career, this provided me with the foundation and experience to deliver relevant and enjoyable courses in all aspects of conflict resolution. I am a registered use of force expert witness and have provided my services to both Crown and Magistrates Courts as well as tribunals and professional standards departments. Streetwise Safety Training are proud to have signed the Armed Forces Covenant and have been awarded Bronze status.
Thursday’s claim came in a lawsuit against app store fees and payment tools between the tech giant and game maker Epic Games. The US states, led by Utah and including Texas, Indiana, and Colorado, argued that “Apple's conduct has harmed and is harming mobile app-developers and millions of citizens.”
"Meanwhile, Apple continues to monopolize app distribution and in-app payment solutions for iPhones, stifle competition, and amass supracompetitive profits within the almost trillion-dollar-a-year smartphone industry,” the states said.
The Utah-led action follows a US district judge in California ruling mostly against Epic Games last year. The judge found that antitrust law was not violated by the 15% to 30% commissions which Apple charges some app makers for the use of an in-app payment system.
Epic Games challenged the ruling in the 9th US Circuit Court of Appeals. The 34 US states, as well as activist groups and academics, delivered supporting legal arguments through court filings.
"Paradoxically, firms with enough market power to unilaterally impose contracts would be protected from antitrust scrutiny — precisely the firms whose activities give the most cause for antitrust concern," said the US states.
On Thursday, Apple commented that it was confident that Epic Games’ challenge would fail.
Ruslan Ughrelidze, solicitor and managing director at Lawlex Solicitors, explains the features of UK courts that could make them uniquely suited to handling dispute resolution following Brexit.
The Commercial Court attracts a huge amount of business to the City of London. Many non-British companies use English law in their contracts and favour the London Commercial Court because of its expertise and legal tradition. They can be sure that they are going to get a fair hearing for business, that contracts will be enforced and rights upheld, and that the highly respected and independent judiciary will not be afraid of deciding cases against the government. Businesses coming to the United Kingdom for dispute resolution can be absolutely certain that they are going to get a fair trial, which obviously boosts business confidence.
Post-Brexit, many have expressed views about the role the UK will have in the world legal stage. This has stirred a great deal of debate, both sides of the argument having valid points – albeit speculative and unprecedented. It will be some time until braced onlookers feel the impact of the event. As ever, optimists only envisage prosperity and the remaining fraction predict gloomier prospects. Because of Brexit, some multinational corporations have also moved their European offices out of the UK, potentially taking their litigation with them.
The UK has a leading legal system aspired to by most of the world. Its strong legal traditions stretch back centuries, impossible to replicate without considerable effort and, most significantly, time. An influential aspect of the UK’s legal system – apart from the independence of the judiciary, the competence of the lawyers, and their training and qualifications – has been its stability, expertise and concept of precedent.
Businesses coming to the United Kingdom for dispute resolution can be absolutely certain that they are going to get a fair trial, which obviously boosts business confidence.
Further to the court system, another noteworthy feature of the UK legal sector is the London Court of International Arbitration (LCIA), which enjoys the reputation amongst its rival arbitration courts of being one of the best in the world for settling disputes. After Brexit, it is predicted that the LCIA’s popularity and attractiveness will rise. One of the reasons for this predicted increase in popularity – aside from the features attributed generally to the English court system – may be its ability to depart from the jurisdiction of the Court of Justice of the European Union. Unlike litigation in English courts, the LCIA offers much more freedom to the parties involved in the dispute, granting them the ability to adopt a procedural framework regulating the arbitral proceedings.
Similar to the commercial courts of the land, the LCIA is benefiting from features that are long-established and arguably unparalleled elsewhere in the world: autonomy of international arbitration; independent, competent and efficient judiciary with expertise in international arbitration; competence and routes to qualification for solicitors, counsels, arbitrators, judges and experts, and ethical and professional regulations that bind professional participants. Each of these can be named as some of the prime features enjoyed by the LCIA which enrich its reputation and fame on the world dispute resolution stage.
Other remarkable opportunities available during LCIA proceedings include Interim measures and the possibility to challenge the award on prescribed grounds. With such procedural safeguards in LCIA proceedings, participants can have full confidence in the court from its proceedings to its conclusion. The only remaining part after the determination of LCIA proceedings is an enforcement of the arbitral judgment or award, which is subject to mandatory laws of where the arbitral seat is located (LCIA). With these measures in place, it is easy to envisage the LCIA – and, by extension, the UK courts – rising to even greater prominence post-Brexit.
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Ruslan Ughrelidze, Managing Director
Level 30, The Leadenhall Building, 122 Leadenhall St, London, EC3V 4AB
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Ruslan Ughrelidze is a practising solicitor in England and Wales and managing director of Lawlex Solicitors. His practice varies and includes civil litigation and human rights.
Lawlex Solicitors is a multidisciplinary practice based in the City of London specialising in litigation, dispute resolution, arbitration and some aspects of administrative law such as immigration and extradition law practice.
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US District Judge William Alsup said that he would tentatively approve the deal, which would see Pinterest commit $50 million to diversity, equity and inclusion (DEI) initiatives over a decade-long period. However, Alsup said he believes other shareholders should have the opportunity to decide whether it requires an enforcement mechanism.
In 2020, a lawsuit, filed after former employees went public about alleged mistreatment, accused Pinterest executives and directors of contributing to a culture of race and sex discrimination. Last November, the parties reached a tentative settlement, though the company’s executives and directors denied any wrongdoing. The settlement was the first of its kind to require DEI audits and incorporate DEI goals for Pinterest’s business and its workplace.
However, Alsup has queried the $50 million deal, stating that requiring the directors of the company, some of whom were the ones sued, to oversee reforms was like handling “the chicken coop over to the wolves.”
As the financial world sees renewed speculation that the world’s largest private equity firms may soon float on the public market, in A v M [2021] EWFC 89 a High Court judge has given what is only the court’s second-ever detailed ruling on how private equity partners will need to share carried interest payouts with their former spouse following divorce.
It is well-established in English law that, on divorce, the court’s starting point will be that the financial fruits of the marital partnership - including resources generated by the parties’ efforts during the marriage - should be shared equally, but that there is no right to share in the product of work carried out after the divorce. (Ongoing spousal maintenance payments from future income are frequently ordered in cases of need, where the recipient is unable to meet their outgoings from other resources).
Applying these principles to carried-interest is not straightforward. Carried-interest (or “carry”) is paid to private equity partners where a fund’s performance exceeds a pre-determined return; typically the partners retain 20% of the profits, divided between them in accordance with a partnership agreement. Carry is often their most significant form of remuneration.
A private equity fund might have a five to ten-year life. As carry payments tend to be paid out in a fund’s later years, but reflect the fund’s performance throughout its life, it is not possible simply to say that payments received after divorce only reflect the product of post-divorce labour and so should not be shared. So, what approach does the court take?
In the 2013 case of B v B [2013] EWHC 1232 (Fam) (in which the author represented the wife), the judge took a broad discretionary view. The husband had provided detailed schedules weighing the work required at each stage of a fund’s life, illustrating how much of the work had taken place prior to separation, and converting that into a percentage figure showing the proportion of carry proceeds said to be “marital”. By contrast, the wife argued for a broader approach that recognised carry receipts as a product of the husband’s efforts which were part of a continuum stretching back into the marriage. The judge did not adopt the husband’s mathematical approach, but went with an instinctive approach to fairness, and awarded the wife 50% of the husband’s carry in a fund nearing the end of its life, 20% of the husband’s carry in a fund around the middle of its life, and none of the carry in a fund begun shortly before the parties’ separation.
Departing from this, the judge in A v M, Mr Justice Mostyn, took a formulaic approach. In this case, the husband had interests in two funds. Fund 1 had been established in October 2016; investment of €187m had been raised, almost all of which was now invested, with the fund’s term likely to end in March 2026. Fund 2 was established in October 2018; this was a bigger fund with investment commitments of around €323m, of which around half had been invested, and had a term likely to end in June 2028.
The judge held that the marital element of the carry (i.e. the proportion which would be shared) should be calculated linearly over time; there would be no weighting of the work required at different stages of the fund’s life. The judge essentially provided, by way of a formula, that the proportion of the fund’s anticipated life, starting from its establishment, which fell prior to the date of trial would be the proportion of the husband’s carry which would be considered marital and shared equally. Note that it is the date of trial, rather than the date on which the parties separated, which marks the endpoint of the receiving party’s sharing entitlement.
In this case, this resulted in 53% of the husband’s Fund 1 carry being marital and 31% of his Fund 2 carry; the wife would therefore have been entitled to these proportions of the husband’s future receipts. However, the judge was sympathetic to the husband’s desire to limit the period over which he would need to transfer a proportion of his carry receipts to the wife, and so he “relocated” the wife’s interest in the husband’s Fund 2 carry to his Fund 1 carry. To do this, the judge had to estimate the future value of the husband’s carry from both funds and did so using the husband’s evidence that he had expressed the hope to investors that a factor of 2.5 would be achieved. On that basis, the wife was awarded 48.53% of the husband’s carry in Fund 1 and none of his Fund 2 carry.
On the projected figures used by the judge, the wife’s carry receipts would be €5.5m and the husband’s €21.7m. The “relocation” meant that if Fund 1 performed worse than expected, and Fund 2 better, the wife would lose out, and vice versa - but this was a price the judge considered worth paying to limit the duration of the financial nexus between the parties.
Additionally, the wife had argued that because she would continue to contribute to the family as the primary carer of their 12-year-old child, she should receive an enhanced share of the husband’s carry, essentially arguing that because her childcare contributions would continue, the period during which she should be entitled to share in the husband’s remuneration should also continue. The judge “emphatically” rejected this argument, describing it (perhaps controversially) as “completely unprincipled”.
The judgement brings welcome clarification to the approach to be taken to the division of carry following divorce. The mathematical approach adopted generates more predictable outcomes than the previous, discretionary approach, which should assist parties in reducing their legal costs. Furthermore, with the growing use of nuptial agreements, couples are increasingly taking control of how they would wish their assets and income to be divided in the event of separation, including for resources such as carried interest, reducing the prospects of litigation on divorce.
About the author: Richard Kershaw has been a partner at Hunters Law since 2003, and advises on a wide range of financial and child related disputes arising on the breakdown of a relationship.
On Wednesday, US District Judge Valerie Caproni in Manhattan said convicted murderer Henry Franklin could pursue a proposed class action after he was turned down from a grocery delivery position at Cornucopia Logistics, which serves Amazon and Whole Foods.
After a background check, Amazon determined that Franklin had lied on a 2019 job application by answering “no” when asked if he had a criminal record. However, New York law prohibits employers from rejecting job applicants based on their criminal histories. There is only an exception if the crime relates directly to the job in question or if hiring the candidate would pose an unreasonable risk to members of the public.
Judge Caproni said that Amazon and Whole Foods failed to demonstrate that either exception applied. She added that Franklin no longer poses a threat to the public following his rehabilitation, though said she was “sympathetic” to the defendants and understood that they do not want a convicted murderer making deliveries to their customers’ homes.
Franklin was convicted of second-degree murder in June 1995, according to court papers.
