Author: Edgar

With the media sensation surrounding Paradise Papers tempering, talk has turned to the legal and financial consequences of the leak – but what about the longer-term reputational fallout for those embroiled?

One of the first to be publicly named and shamed was Lewis Hamilton – four-time Formula One World Champion, who allegedly avoided paying £3.1 million in tax on a private jet he had imported to the UK. Hamilton has since chosen to remain silent, perhaps recognising that winning the public’s hearts and minds, in relation to his personal financial affairs, is unnecessary in his pursuit of distinction on the track. His position as Britain’s greatest Formula One driver is cemented, with or without passing the general public’s somewhat arbitrary, moral character test.
Similarly, will viewers stop watching Mrs Brown’s Boys because its actors were outed as allegedly having diverted more than £2 million through an offshore tax-avoidance scheme? At its peak, the show was adored by over 11 million viewers – will fans refuse to purchase boxsets, calendars, t-shirts and other sitcom memorabilia in economic protest? Brendon O’Carroll, the creator of the show, rushed to defend his co-stars claiming that “every penny [of tax] was paid”. Apart from the increasing media interest in the actors’ broader financial affairs (a recent report claims the O’Carroll family owns £3.4 million in Floridian real estate), time is yet to tell whether the leaks will have any real impact on the sitcom stars’ careers.

By the same token, half a million tourists are unlikely to stop flocking to Buckingham Palace every year because the Queen’s estate was found to have invested millions offshore. The news may have caused a temporary spike in anti-royalist sentiment – but who could hold a 91-year old lady, who happens to be the world’s longest reigning head of state with an exemplary record of public service, accountable for what was essentially the work of accountants working on behalf of the royal purse?
It’s still early days but the criticism faced by the accused has, so far, been less scathing than that heaped upon those implicated in the Panama Papers.

This somewhat muted, post-publication reaction could be result of several explanations. Either the general public is applying some level of reason to the highly-charged, reputation-slaying, media headlines and recognises that tax avoidance is essentially “tax efficiency” in the eyes of those who commit the deed.

Or maybe leaks of this kind are a hostage to fortune by those seeking to wreak reputational damage, serving, in the long-term, only to cement the public’s complacency, as celebrities, politicians and the super-rich hiding their wealth offshore becomes a disappointing and repetitious norm. Perhaps the punch is diluted because we suspect that some of the most vociferous critics are doing the same…

23 November 2017

Reading this research commissioned by the Legal Ombudsman, Bell Yard firmly concurs that an early, simple, but genuine “sorry” can do wonders for limiting the damage to one’s reputation following a dispute – but be sure to be clear what you’re saying sorry for, and why. We’ve heard lawyers (but not exclusively this profession) who are reluctant to apologise for matters where they can see a technical get out. Failing to put oneself into the shoes of the complainant in an effort to understand their view, is likely to escalate what might be resolved before positions become entrenched. Language does matter. Paraphrasing the infamous Ms Rice-Davies, we would say that wouldn’t we…

11 November 2017

Reports that Appleby’s office in the Isle of Man may have been hacked in the Paradise Papers scandal, in addition to the firm’s office in Bermuda, will no doubt have sent shivers down the spines of various law firms, family offices and wealth managers based in the Channel Islands. Offshore centres like Bermuda, the Cayman Islands and BVA may all be fair game when it comes to the drive for transparency of the tax affairs of multinationals and the mega-rich, but the risk of data-attack closer to home is somewhat scarier.

For any firms concerned they may be vulnerable to data-breach, it is essential not only to work with your IT advisors to ensure encryption of sensitive documents and bolster your defences, as well as to educate all staff on appropriate email and internet use, prepare IT wise but also to have a communications crisis plan in place in case the worst happens. 

Bell Yard’s top communications tips for being ready for dreaded data-breach situations include:

1. Have a multi-disciplinary team of experts ready to mobilise in the event of a hack. PRs, lawyers, compliance and IT professionals will need to work in concert if a problem arises. The role of the PR expert is designed to avoid the firm hiding behind overly legalistic answers and to craft statements that will best resonate with the firm’s key audiences.

2. Be factual at the outset when confirming any attack and what is being done about it (e.g. are the police/NCA investigating?). Ensure all media and public calls are dealt with by a tight-knit team. It is best to avoid commenting on individual clients’ affairs or being drawn into speculation on the perpetrator.

3. Communicate with clients as swiftly as possible, directly and not just through the media. Website FAQs may not be the best way to go for HNW customers. Consider instead personal calls from the lead partner. It will be necessary to warn clients their financial data may end up in journalists’ hands and possibly you may need to recommend they use defamation and privacy lawyers too.

4. Don’t overplay the victim card: clients and the media will have little sympathy that IT systems weren’t sufficiently robust to keep hackers out, especially at a time when the public mood on tax transparency regards HNW financial data booty as in the public interest. 

5. Have a generic statement ready about the legitimacy and strength of your business to which you can add the context of the hack. 

6. Early, proactive engagement with your firm’s regulatory and professional bodies (such as the FCA, SRA and ICO) is imperative, and their breach guidelines followed. It may be appropriate to publicly demonstrate such engagement by way of demonstrating swift action and efforts to control the fall-out.

7. Keep updating your public responses, and ensure messages are consistent between recipients, as the situation evolves.

How a firm handles a crisis and re-establishes control will likely determine how quickly your reputation recovers. A defensive no-comment stance is unrealistic, even in a climate where you feel you can only be criticised. There is a tricky tightrope to walk between the right level of humility and robustness to emerge as unscathed as possible and to protect clients’ best interests. The key will be focusing on what your clients expect from you, by way of retaining their support. Clearly the risk of follow-on litigation could be present, so aim to move forward with clients on board.
Bell Yard has worked on various breach situations both in a front-line capacity and by guiding behind the scenes. We also have experience of working with clients in the Channel Islands. 

11 November 2017

A tainted reputation is like a bad cold. It’s contagious and spreads rapidly by association – as the Harvey Weinstein case has so poignantly demonstrated. Weinstein was married for ten years to London-born fashion designer, Georgina Chapman, in a relationship which outstripped the length of your typical Hollywood marriage.

The recent allegations of sexual harassment and more saw Weinstein’s personal and professional reputation spiral out of control in a spectacular fashion – a stark contrast to the authority he’s used to commanding in the producer’s chair.

Only days after the first allegations Weinstein’s wife announced she was leaving him despite his previous assurances that his wife “stands 100 percent behind” him. In a brave act of solidarity with the complainants, she revealed, “My heart breaks for all the women who have suffered tremendous pain because of these unforgivable actions. I have chosen to leave my husband.”

Denouncing his actions and distancing herself from his tainted reputation should surely help protect hers? Not so far. Outraged fans of the complainants have called for a boycott of Mrs Weinstein’s company, Marchesa. The fashion brand, which designs bridalwear, handbags and jewellery has already been dropped by Helzberg Diamonds. US Weekly stylists decided not to use Marchesa gowns unless Chapman left her husband or donated to a women’s charity. Chapman’s business has found itself at the mercy of a moral debate.

It’s unlikely that the mother-of-two would have turned a blind-eye to her husband’s misdemeanours. If she were unaware of his unwelcome sexual advances towards other women surely her reputation, and that of her company, deserve to be spared? It seems Weinstein agrees. In a recent statement following their split, Weinstein claimed, “I fully support her decision. […] I know she has to do what is best for the children, for herself and her business, she employs 130 people.” In spite of his bawdy machismo, it seems Weinstein has an astute eye for reputational matters, aware that his tainted reputation was likely to spread, encompassing his wife, her business and affecting her 130 employees.

For anyone, anywhere, embroiled in a reputation crisis, the first step is to appraise the situation and try to take back control. There needs to be a foolproof, honest public statement about what went wrong. Only in rare cases will a “no comment” approach suffice. Once the eye of the storm has abated, the PR strategy should be reappraised. Any fight back strategy for Marchesa, for example, should encompass how the business plans to disassociate itself from Weinstein. It must emphasise the brand’s credibility away from purely its success on the movie red carpet and demonstrate the leadership team is broader than Mrs Weinstein. Only then can the company begin to move forward from the damage inflicted on its reputation.

As the allegations against the movie mogul continue to mount, who will the reputation contagion claim as its next victim?

13 October 2017

First Published by PR Week 9 October 2017 (http://www.prweek.com/article/1446826/top-pr-industry-mans-game)

As an industry, PR is highly inclusive of women. Or so it seems. Women comprise 64 percent of the total workforce, yet only 13 percent inhabit board-level and partner positions. In an age where women occupy positions such as President of the Supreme Court, Police Commissioner and Prime Minister, why are the upper echelons of PR still perceived as unreachable for many?

Recently Spear’s published its ranking of Top Ten Reputation Managers for those who identify as High Net Worth Individuals (HNWIs).  Remarkably, female PR advisors failed to feature at all – not only absent from the Top Ten but also from the subsequent list of 16 notable names.

In marked contrast, Spear’s featured two women in its ranking of Top Ten Wealth Managers, and scores of leading female lawyers across various legal disciplines. Yet the financial sector is notorious for its underrepresentation of women though the legal services profession has cottoned on to the value of women in law.

Perhaps the absence of Spear’s-rated women in PR results less from Spear’s own unconscious bias, but more from the conduct of female leaders in the PR industry.

I know many talented, savvy and highly commercial women who manage others’ reputations.  I don’t know if they specifically advise those of high net worth. Which reminds me of that old tease – how do you know if someone’s a vegan?  They tell you.  Perhaps the reason I haven’t learned whether my contemporaries are also up to their eyes in advising the spectacularly wealthy is that my female friends haven’t felt the need to flash their big swinging handbags to say so.  They get on with the job at hand, often too self-effacingly, and hope their efforts are respected.

It would be more worrying were the rankings to imply that HNWIs prefer to seek counsel from male PRs.  Is there a level of trust, man-to-man, that may not be as prevalent between a drippingly wealthy male and a female PR?  Do the less enlightened believe girly PRs are good for some things but when the serious stuff happens, it’s time to call in the boys?

I actually believe men and women are naturally less willing to show their vulnerabilities to the opposite sex in the work environment – the understanding of which is necessary to build the most watertight and appropriate argument in defence of reputation.

Undoubtedly, though, we women are accountable for our reticence to acknowledge our place in the higher echelons of PR.  After all, Spear’s compiled its rankings through recommendations of HNWIs and self-nomination. Studies indicate that the biggest career hurdles women in C-suite positions face, is self-promotion and expressing our talents. Or to put it more poignantly, women’s self-advocacy is seen as excessive in comparison to men’s. Women who self-promote or indeed achieve recognition are less likely to be liked. The dreadful trolling of Laura Kuenssberg is a case in point.

As with any industry, there are obvious hurdles for women in PR to overcome – company culture, avoidance of work-place conflict, stigma in discussing salaries, unconscious biases and lack of transparency. But come on girls, let’s channel our inner vegan: ditch the reticence and speak proudly of what we do, or the big jobs will forever be perceived as belonging to the boys!

Melanie Riley, carnivore & Bell Yard Founding Director

10 October 2017

MEDIA RELEASE

For immediate release

Issued by:  Bell Yard Communications, London

O: +44 (0)207 936 2021

M: +44 77755 91244

8 February 2017, London:  Christopher Guest, Michael McKean and Rob Reiner, co-creators of the cult-classic film This is Spinal Tap, have today formally joined fellow creator, Harry Shearer, as plaintiffs in his lawsuit against French conglomerate Vivendi S.A..

Guest starred as the band Spinal Tap’s lead guitarist Nigel Tufnel; McKean as lead vocalist and rhythm guitarist David St Hubbins and Shearer as bassist Derek Smalls. Reiner directed the film and starred as its narrator.

The original complaint, by Shearer’s service company Century of Progress Productions, [Case No.  2:16-cv-07733], was filed on 17 October 2016 in the Central District of California USA. The lawsuit alleges Vivendi S.A. engaged in anti-competitive and unfair business practices, as well as fraudulent accounting, directly related to its management of This Is Spinal Tap.

With Guest, McKean and Reiner’s participation, the revised filed and served complaint now seeks US$400 (four hundred) million in compensatory and punitive damages from Vivendi, up from the US$125 million originally claimed.

Commenting on the lawsuit, Guest said: “The deliberate obfuscation by Vivendi and its subsidiaries is an outrage. It is vital that such behavior is challenged in the strongest way possible.”

Reiner adds:   “Fair reward for artistic endeavor has long been raised by those on the wrong end of the equation.  What makes this case so egregious is the prolonged and deliberate concealment of profit and the purposeful manipulation of revenue allocation between various Vivendi subsidiaries – to the detriment of the creative talent behind the band and film. Such anti-competitive practices need to be exposed. I am hoping this lawsuit goes to 11.”

“This is Spinal Tap was the result of four very stubborn guys working very hard to create something new under the sun. The movie’s influence on the last three decades of film comedy is something we are very proud of. But the buck always stopped somewhere short of Rob, Harry, Chris and myself. It’s time for a reckoning. It’s only right.” commented McKean.

Shearer welcomed his co-creators’ decision to join: “Their participation will help demonstrate the opaque and misleading conduct at the heart of this case. We’re even louder now.”

The amended complaint, which also incorporates Spinal Tap Productions (owned in equal share by all for co-creators), as a joint plaintiff alongside the co-creators and their service companies, details Vivendi’s alleged manipulation of certain accounting data, while ignoring contractually obligated accounting and reporting processes, to deny the plaintiffs their rightful stake in the production’s profits.

ENDS

A COPY OF THE AMENDED COMPLAINT AND PHOTOS OF ALL PLAINTIFFS ARE AVAILABLE FOR DOWNLOAD FROM www.fairnessrocks.com

Issued by Harry Shearer’s litigation PRs:

Paris:                          London:                                        New York/Washington:        Los Angeles:

Jean de Belot          Melanie Riley                              Ian McCaleb                                Seth Jacobson

Alexandre Levy      Louise Beeson                            Mona Amin

Violaine Naud         Sarah Peters                               Bryant Madden

Aria Partners              Bell Yard Communications          LEVICK                                                                    

O: +33 1563 37064       O: +44 (0)207 936 2021                   O: +1 202 973 5303

M: +33 607 415852      M: +44 (0)7775 591244                   C: +1 202 779 0587                          C: +1 310 592 3900

NOTES TO EDITORS

**ADDITIONAL INFORMATION AVAILABLE AT WWW.FAIRNESSROCKS.COM **

In 1982, Reiner, Shearer, Guest, and McKean signed an agreement with Embassy Pictures, Inc. for the production, financing and distribution of This Is Spinal Tap. The agreement ensured profit participation payments, at the rate of 40 percent of net receipts, to the creators based on all sources of revenue, including merchandise and music.

After two years of production, the film was released in 1984. It soon became a cult favourite, and its reputation as one of the 20^th Century’s most enduring comedies has increased exponentially in the ensuing years. The film’s accolades include being named in the New York TimesGuide to the Best 1,000 Greatest Movies Ever Made list, Total Film’s 100 Greatest Movies of All Time list, and achieving the coveted Number One spot on Time Out London’s 100 Best Comedy Movies list. In 2002, the film’s lasting appeal led the U.S. Library of Congress to designate it as a culturally, historically, or aesthetically significant film.

The film’s ongoing critical success was likewise matched by its financial success. It was produced on a shoestring budget of $2.25 million. The complaint alleges that This Is Spinal Tapgenerated millions of dollars across various revenue streams for Vivendi, its subsidiary companies, and their licensees. The music and merchandise that the film and band have spawned, earned tens of millions of dollars in revenue through re-releases, album and singles sales, merchandise sales, and distribution of the film in various formats across the globe over the course of the last 32 years.  However, these profits were not fairly shared with the four co-creators, cast, or crew.

The French conglomerate claims that the four creators’ share of total worldwide merchandising income between 1984 and 2006 was a mere $81 dollars. Likewise, total income from soundtrack music sales between 1989 and 2006 was reported by Vivendi as only $98 dollars/

Band & Movie Background

Although This Is Spinal Tap was first released in 1984 in US and UK (in 2000 in France) the band “Spinal Tap” was actually created in the late 1970s. The band’s rock musician characters “Nigel Tufnel” and “David St. Hubbins” were created by Christopher Guest and Michael McKean with Harry Shearer creating bassist “Derek Smalls”.  Spinal Tap’s comedic sole claim to fame was as “one of England’s loudest bands”.

Phrasing from the film’s script has entered the general lexicon (“it goes to 11”).  The film continues to be shown regularly on TV home viewing around the world, is available on multiple video formats and has been supported by several album/singles releases and band tours.

Litigation Background

Harry Shearer’s determination to highlight the principle of fair rights to creators led him to launch the original suit.  He is unafraid to take on vested interests in the entertainment industry in his pursuit of equitable treatment between the industry and its talent.  He is today joined by all of his co-creators of Spinal Tap the band, and the film.

This lawsuit will determine several key matters in respect of the exploitation rights to This Is Spinal Tap, including breach of contract, fraud and fraudulent concealment, breach of an implied covenant of good faith and fair dealings and intellectual property rights.    The lawsuit raises particular concerns over the anti-competitive effects of non-arms’ length transactions among Vivendi subsidiaries in managing This Is Spinal Tap. These issues are further outlined in the Complaint.

Advisors

Lead Litigator:                                    Peter Haviland, Ballard Spahr (Los Angeles, CA.)

Lead Counsel:                                    Amanda Harcourt, Intellectual Property Consultant (UK)

8 February 2017

18 October 2016, London – Harry Shearer, renowned worldwide for his voicing of 23 characters on the long-running animated television series ‘The Simpsons’, has filed a comprehensive legal action in Los Angeles, California, USA.

The lawsuit alleges French conglomerate, Vivendi S.A., engaged in anti-competitive and unfair business practices, as well as fraudulent accounting, directly related to its management of the cult-classic film, This Is Spinal Tap. Shearer co-created the film, co-wrote the soundtrack and starred as the Spinal Tap band’s bassist, Derek Smalls.

According to the complaint, Vivendi and its agents, including StudioCanal and Universal Music Group, wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny Shearer and his fellow co-creators their rightful stake in the production’s profits. The action seeks US$125,000,000 in compensatory and punitive damages.

As a StudioCanal executive with personal responsibility for exploitation of the film and band, Ron Halpern is named as a co-defendant in the claim. Halpern is based in Paris.

“Almost 40 years ago, Christopher Guest, Michael McKean, Rob Reiner and I created the somewhat legendary band Spinal Tap,” said Shearer. “We thought there was something real and really funny about the characters, and between that inception and the theatrical release of This Is Spinal Tap in 1984, we poured ourselves into nurturing and perfecting the paean to rock loudness that has entertained so many people, even today. But despite the widespread success of the film and its music, we’ve fallen victim to the same sort of fuzzy and falsified entertainment industry accounting schemes that have bedevilled so many other creators. In this instance, the fraud and negligence were just too egregious to ignore. Also, this time, it was personal.”

In 1982, Reiner, Shearer, Guest, and McKean – signed an agreement with Embassy Pictures, Inc. for the production, financing and distribution of This Is Spinal Tap. The agreement ensured profit participation payments, at the rate of 40 percent of net receipts, to the creators based on all sources of revenue, including merchandise and music.

After two years of production, the film was released in 1984. It soon became a cult favourite and its reputation as one of the 20th Century’s most enduring comedies has increased exponentially in the ensuing years. The film’s accolades include being named in the New York Times Guide to the Best 1,000 Greatest Movies Ever Made list, Total Film’s 100 Greatest Movies of All Time list, and achieving the coveted Number One spot on Time Out London’s 100 Best Comedy Movies list. In 2002, the film’s lasting appeal led the US Library of Congress (the world’s largest cultural collection), to designate it as a culturally, historically or aesthetically significant film.

The film’s ongoing critical success was likewise matched by its financial success. It was produced on a shoestring budget of US$2.25 million. Yet This Is Spinal Tap and the music and merchandise that it and the band have spawned, earned tens of millions of dollars in revenue, according to the complaint – through re-releases, album and singles sales, merchandise sales, and distribution of the film in various formats, across the globe over the course of the last 32 years. However, these profits were not fairly shared with the four co-creators, cast or crew.

When Vivendi acquired the rights to This Is Spinal Tap in 1989, through its subsidiary Canal, the lawsuit alleges it began a concerted and fraudulent campaign to hide, or grossly underreport, the film’s revenues in order to avoid its profit participation obligations. Vivendi’s financial reporting of income has been woefully inconsistent at best. Performance of its duties to the film’s creators dropped off entirely from 2014, the 30th anniversary of the film’s initial theatrical release. In the past two years, Vivendi has altogether failed to produce an account of any Tap revenue, according to the complaint.

The complaint alleges that This Is Spinal Tap has generated millions of dollars, across various revenue streams, for Vivendi, its subsidiary companies and their licensees. The French conglomerate asserts that the four creators’ share of total worldwide merchandising income between 1984 and 2006 was US$81 dollars. Between 1989 and 2006, total income from soundtrack music sales was reported by Vivendi as US$98 dollars, according to the complaint.

“This is a simple issue of artists’ rights,” added Shearer. “It is stunning that after all this time, two cinema releases, all the various home video format releases, all the records and CDs, and all the band-themed merchandise still widely available worldwide, the only people who haven’t shared Spinal Tap’s success are those who formed the band and created the film in the first place.”
“Vivendi and its subsidiaries – which own the rights to thousands and thousands of creative works – have, at least in our case, conducted blatantly unfair business practices,” Shearer continued. “But I wouldn’t be surprised if our example were the tip of the iceberg. Though I’ve launched this lawsuit on my own, it is in reality a challenge to the company on behalf of all creators of popular films whose talent has not been fairly remunerated. I am just one person seeking redress for blatant injustice, but I hope this lawsuit will, in its own way, help set a new precedent for faithful and transparent accounting practices, and fair artistic compensation, industry-wide.”

ENDS

A COPY OF THE COMPLAINT CAN BE DOWNLOADED FROM www.fairnessrocks.com

Hear Harry in his own words on Twitter movie clip: @theharryshearer

Issued by Bell Yard Communications, Harry Shearer’s litigation PRs:

NOTES TO EDITORS

Band & Movie Background

Although This Is Spinal Tap was first released in 1984 in US and UK (in 2000 in France) the band “Spinal Tap” was actually created in the late 1970s. The band’s rock musician characters “Nigel Tufnel” and “David St. Hubbins” were created by Christopher Guest and Michael McKean with Harry Shearer creating bassist “Derek Smalls”. Spinal Tap’s comedic sole claim to fame was as “one of England’s loudest bands”.

Phrasing from the film’s script has entered the general lexicon (“it goes to 11”) as exemplified by the Tesla car, whose audio system’s volume control goes to 11, as does that of the BBC’s iPlayer.
The film continues to be shown regularly on TV home viewing around the world, is available on multiple video formats and has been supported by several album/ singles releases and band tours. Yet, apparently, the film took 27 years to recoup.

Litigation Background

Mr Shearer has been frustrated by the difficulty in receiving a clear picture from the Vivendi group as to the revenues due from each of the various income streams – including merchandising and music sales – and by the Group’s accounting methods. He is determined to highlight the principle of fair rights to creators. He is unafraid to take on vested interests in the entertainment industry in his pursuit of equitable treatment between the industry and its talent.

This lawsuit will determine several key matters in respect of the exploitation rights to This Is Spinal Tap, including breach of contract, fraud and fraudulent concealment, breach of an implied covenant of good faith and fair dealings and the lawfulness or otherwise of practices indulged in by a media player with market dominance. The lawsuit raises particular concerns over the anti-competitive effects of non-arms’ length transactions among Vivendi subsidiaries in managing This Is Spinal Tap. These issues are further outlined in the Complaint.

Mr Shearer has filed his litigation in the U.S. District Court for the Central District of California, through his trial counsel, Peter Haviland, Managing Partner of the Los Angeles office of U.S. firm Ballard Spahr.

Advisors

Lead Litigator: Peter Haviland, Ballard Spahr (Los Angeles, CA.)

Management Company: John Power and Anna Derperseghian, Power Twersky & Deperseghian (Los Angeles, CA.)

Lead Counsel: Amanda Harcourt, Intellectual Property Consultant (UK)

18 October 2016

MEDIA RELEASE  

For immediate release 2 May 2017

Kingsley Napley announces three new partners taking its female partnership ratio to over 50%.

Kingsley Napley LLP is pleased to announce its new partner round promotes three female lawyers at the firm, meaning women now make up 52% of its partnership. The promotions, effective this week, include:
Brandusa Tataru-Marinescu who has been promoted to Partner in the Real Estate team. Brandusa specialises in non-contentious construction work and has acted for both domestic and international clients (developers, contractors, high-net worth individuals, investors, lenders and real estate funds) on a variety of projects (residential, commercial and mixed use schemes). She joined the firm from Taylor Wessing in 2015.

Rebecca Niblock who becomes a Partner in the Criminal Litigation team. Rebecca is a specialist white collar and extradition lawyer with significant experience in both domestic criminal litigation and cases involving cross-jurisdictional elements. She has acted for defendants in a range of criminal matters from serious fraud, money laundering and corruption, and in SFO and FCA investigations. She has successfully defended a large number of persons requested by other states both inside and outside the EU in extradition proceedings at all levels. Rebecca has co-written one of the leading practitioner texts on extradition law, now in its second edition. Rebecca joined the firm in 2012.

Johanna Walsh who also becomes a Partner in the Criminal Litigation team. Johanna joined Kingsley Napley from DLA Piper in 2014. Johanna’s focus is fraud and corruption cases where she has acted for individuals and corporates being prosecuted by the SFO, FCA and CPS. She also has experience of corporate internal investigations some of which resulted in self-reports to regulators and prosecutors. She was part of the Kingsley Napley team recently advising Tesco on its case with the SFO.

Separately the firm has appointed Joanne Stephens as a Senior Associate in the Criminal Litigation team. Joanne joins from Northern Trust Corporation where she held a compliance role. From 2011-216 she worked in the Enforcement Division of the Financial Conduct Authority (FCA). She brings rich experience of regulatory compliance in the banking sector and business crime to Kingsley Napley’s criminal defence team and Financial Services practice.

Linda Woolley, Managing Partner of Kingsley Napley, comments,
“Our three new partners are thoroughly deserving of their success. Each has grown in stature and experience in their roles and respective practice areas and are highly regarded by peers and the firm’s clients. Their promotions continue to strengthen the firm’s record for recognising talented women in the law. I am also delighted to welcome Joanne Stephens to the firm. Her skill set and experience makes her a good-fit hire for us and will help our increasingly busy financial services practice.

ENDS

For press enquiries, please contact Bell Yard Communications 020 7936 2021 or email BellYard@Bell-Yard.com

For more information about Kingsley Napley, please visit: http://www.kingsleynapley.co.uk/

Today’s announcement brings the total number of Kingsley Napley partners to 52. The firm can now boast that 52% of its partners are female and of the firm’s qualified fee earners (incl partners) 69% are female.

HM Courts and Tribunals Service (HMCTS) recently announced that new employment tribunal decisions will be available online from Autumn 2016. Employment Appeal Tribunal decisions and Court of Appeal decisions on employment law are already available via online services, so this new database will simply be extending the ability to search online for first instance judgments.

Discussions with employment lawyers suggest the profession is pretty underwhelmed by this development since first instance decisions are rarely useful as they are not strictly binding. Some have also expressed surprised this is happening given well-rehearsed concerns of the risk of employers blacklisting employees known to have bought claims in the past.

For us the interesting question is how the added transparency will change the way parties think about reputational aspects of an employment dispute.

If respondent employers know their cases are easily traceable, compared to the inefficient paper service to which they are used, will it enhance their appetite for swift settlements in order to avoid (further) publicity or to prevent existing employees from accessing the details? Clearly some parties are particularly publicity-sensitive and others more prepared to take things on the chin. Perhaps settlement decisions will purely be evidence-dependent, but in our view this enhanced transparency is definitely an additional consideration in the litigation mix.

Will this new service dampen the enthusiasm of prospective litigants?  Most probably.  Some claimants will still be convinced they have nothing to lose reputationally or remain only too happy to have their public day in the sun. Others are likely to be more circumspect. Just like someone’s social media profile, a litigation history, irrespective of result, may prove off-putting for prospective employers as well as to other parties with whom the claimant hopes to establish a business relationship.

In recent years, fewer reporters have been assigned to the courts, being increasingly tied to their desks. Unless litigation PRs were instructed to push a particular story, the odds were that interesting cases would not always get aired. When the new search facility becomes available, both staffers and freelance journalists may more readily find themselves a rich and regular source of material with “winner” and “loser” already assigned. As a result, more parties will have their public reputations to manage and may be unprepared for the exposure. That’s where expert PRs come into the fray.  One man’s meat is another man’s poison, as they say.

The Government has introduced various reforms in recent years to reduce the number of claims going before Employment Tribunals – with notable success. The attempt to improve transparency in the justice system may have a contributing effect on this litigation minimisation policy.  Enterprising employment lawyers may now look to find novel ways of keeping certain information confidential, to shield against the transparency of the new database.  On a practical note, the profession is actually interested to see how cost and time efficient the new service will be. We are told to expect more details in November….watch this space.

20 September 2016

Having originally lost a lawsuit against Citigroup in New York 6 years ago for fraudulent misrepresentation in relation to his disaster purchase of EMI, Guy Hands was  putting that reputational blot behind him when up popped news of the London-based retrial, where he hoped for a markedly different outcome. It soon became clear all Mr Hands’ good reputation restoration work between trials would be forgotten.

As the London case opened we were reminded Hands lost $230m on the EMI acquisition and that he has failed to raise a new fund since. The Daily Telegraph headline “Guy Hands‘ record remains stuck on EMI” aptly summed up his predicament.

For investors and the business world to now know Guy persisted with this legal battle when his memory of events was ‘hazy’ (according to Mark Howard QC) and his testimony ‘confused’, leaves the impression of someone prepared to gamble both time and money in the process of doggedly pursuing an unconvincing case.

It was so different back in 2010. Then, in the wake of the financial crisis, Mr Hands was perceived as a brave man prepared to take on powerful names at a venerable financial institution.  Now, David Wormsley, Michael Klein and Chad Leat now look positively hero-like against the diminished figure of their opponent.

On withdrawing his claim in London today, Mr Hands maintained in his statement: ““The matter is now closed. Terra Firma is looking to the future. We have an exciting portfolio of companies, a talented and experienced team, supportive and loyal investors and one billion euros of capital to invest.”

Perhaps. Yes, Terra Firma recently took a positive step of recruiting former Sainsbury’s Chief Executive Justin King and has acquired and improved solid businesses like Wyevale. However isn’t it a little naive to think this Citi matter can be swept so easily under the carpet?

Mr Hands now has two choices – keep a low personal profile for a while to let the dust settle and allow Terra Firma to speak for itself, taking to the airwaves only once he has business success to promote. Or demonstrate some real bravura, do a reflective profile interview, explain the reasons behind bringing the London case, whilst accepting the defeat with grace (even if Oscar-worth acting skills are needed) admitting the lessons learned from a bruising experience, but crucially, ending the profile with a positive focus on his current successes and future ambitions.

Whatever his preference, he should not enter the Brexit debate as he has done of late. No need to remind people of his offshore status at a time of public disquiet over perceived different tax rules for the rich. He should create a narrative to explain ownership of his businesses on a lifeline like Four Seasons and not be tempted to give Michelin-star or equivalent restaurant reviews to the likes of the FT’s ‘How to spend it’ magazine column. He must be aware that the media vultures are circling, looking for every sign of trouble such as cracks in Terra Firma’s team, company failings and fund redemptions.

Mr Hands almost recovered from his New York debacle. Even by curbing any tendency towards hubris, it’s now doubly challenging for the once ‘star financier’ truly to put this litigation behind him and shine once more.

10 June 2016

It takes a brave, or perhaps admirably thick-skinned, person to bring legal action against a former employer, particularly one that attracts incredible publicity and in an industry known for its heightened egos, celebrity and eye-boggling wealth.   Yet Dr Eva Carneiro’s determination to achieve a fulsome public apology from Chelsea Football Club, and high-profile recognition for her medical talents, appears to have succeeded.

Dr Carneiro and CFC settled their differences. However, the longed-for statement extracted from the Club well after the 11^th hour, has not come without a price.  The (presumably) tactical reference in the Respondent’s filings to a previous financial offer of £1.2m to settle the case, attracted the overnight headlines, thus providing a rather different hue on proceedings.  This is what can happen when a case formally opens, allowing journalists to read-in, at the back of the courtroom and, in some circumstances, be spoon-fed the relevant passages of a Respondent’s Opening.  The gloves tend to come off in a PR war that runs parallel to proceedings inside the Tribunal, and the reputational blows can have longer-lasting effect.

Interesting, for some time the public has been led to believe that Dr Carneiro wanted a public apology from Mr Mourinho above all – yet noticeably this settlement announcement does not provide one.  The ‘Special One’ was forced to a South London employment tribunal to be put on the spot to settle or face the consequences. An appearance in Croydon probably wasn’t high on Mourinho’s wish list, but he had little choice.

Dr Carneiro may believe she needed recognition for her medical judgment in order to secure meaningful employment elsewhere.  Yet is she any more employable as a sports medic now, following Chelsea’s climbdown, than she would have been had she saved herself the exacerbation of ‘distressing and difficult times’ during the past 10 months, by not issuing proceedings?  Negotiating a severance package rather than litigating may have allowed her to have moved on more smoothly, without the enduring attention she will attract as she takes up any new employment. Perhaps though, maximizing attention became part of the game plan, thereby expanding her employment opportunities beyond the sports medicine sphere.  Pure speculation, but an interesting thought.

Of course, no one should have to put up with discriminatory or derogatory treatment in the course of doing their job – but many in less well paid circumstances do take the view that rushing to court is not the only way to put an end to inappropriate, and possibly unlawful, conduct.   There could well be a potential employer who decides to resile from taking on the extremely competent sports doctor in these circumstances because they fear attracting the spotlight of publicity that may follow after a high-profile bust-up with a former boss and employer.  This would never be publicly acknowledged as a reason against hiring, but I’d not bet against it featuring in future considerations – unless the new role would be enhanced by the increased publicity she will attract.

Employment rights are vital in any mature economy, but choosing how and when to rely on them is a practice not always best just left to lawyers.  There is often a reputation aspect to litigation that should not be underestimated. Hard working season ticket holders, having suffered years of ticket price inflation (until the price freeze), may well be wondering what language they’d each put up with for an annual salary of purportedly £280,000 + pitch side attendance at matches, before demanding a 40% salary increase.  Harsh, but true.

7 June 2016

https://www.citywealthmag.com/news/we-use-pr-agency-bell-yard-specialist-litigation-pr-agency-help-us-proactively-identify?utm_source=Sign-Up.to&utm_medium=email&utm_campaign=37085-154175-Brand%20and%20reputation%20email%201-Preview

31 May 2016

An individual’s right to privacy versus the public’s right to information is a tussle that recently came to the fore once more. The UK media got over-excited about two “private life” stories and indulged in some rather disproportionate reporting.  First we learnt a celebrity won a ban to stop press revelations of his extramarital threesome in England & Wales only to find his identity blown in the US media, and shortly thereafter in Scotland, as well as on social media. This served to highlight the limitations of UK privacy laws in a global media age, whilst reinforcing the value, in certain circumstances, of PR practices over litigation.

Subsequent newspaper revelations over MP John Whittingdale’s liaisons with a sex worker, prior to his appointment as Culture Minister, and his relationship with a former model, caused a similar media furore.

In both cases the newspapers argued public interest gives them the right to publish.  The Sun on Sunday contended that wealthy public figures who use PR agencies to promote favourable personal and family reputations should not be allowed, in the face of negative stories, to use their resources to prevent the unwanted coverage. The paper remonstrates that it is a matter of public interest for such hypocrisy to be disclosed, and an injunction wholly unjustified when the information is already in the public domain.

In the second case, it was argued that some sections of the media had suppressed news of Whittingdale’s relationships so as to leverage control over his handling of press regulation. Once this theory was debunked, there came a public interest spat over Whittingdale’s alleged conflict of interest for not declaring to the PM the ‘sword of Damocles’ was hanging over him as the press had the story of his dominatrix liaison at a time he accepted the role of press muzzler-in-chief. It gave rise to the perception of compromising his public role capacity.

Regardless of the legal issues involved, there are three salient PR lessons:

1. Internationally-recognised celebrities seeking privacy injunctions invariably end up ensuring their action has the opposite effect in news terms. The media cry foul and give the story more attention than it would ordinarily merit. The story gets greater traction and more members of the public end up knowing about a story than might have been the case if one of the tabloids had just given it the “one-hit wonder” treatment and the PRs had provided an alternative narrative.

Privacy lawyers argue that preventing publication in English media has been important in halting the tide of press intrusion and that most ordinary people don’t care about such stories. However, on this point lawyers and PR professionals diverge.  The PR that can successfully dissuade both client and lawyer from litigation is one that deserves her pay.

• These story-types are generally triggered by background players with their own agendas. The BBC and Hacked off are accused of overblowing the Whittingdale news. Fleet Street, still reeling from Leveson, will forever resent the ‘straight jacket’ of a privacy injunction. Identification of the story drivers helps PRs assess reputation management briefs.
• The Court of Appeal’s judgment overturning the injunction in the celebrity case demonstrates the inability of our laws to cope with a fast-paced global media age. We await the Supreme Court’s final decision. Yet the overriding PR lesson is there is no such thing as local any more. Reputation management is now a multi media and cross jurisdictional game.

Yet it is no victory for the world of PR that UK privacy laws may no longer be fit for purpose. The conflicting rights of privacy and public interest remain as nuanced as ever.  In the end, it’s the message crafted in the face of uncomfortable truths that determines the lasting impact of unhelpful reporting.

28 April 2016

It can’t have come as a big surprise that an overwhelming majority of the public supports an independent regulator of solicitors. A ComRes poll published last week showed 82% backing for solicitors being independently regulated. This will bolster the Solicitors Regulation Authority’s (SRA’s) ongoing bid for independence which, its Chief Executive says, will make regulation cheaper and fairer.

People would trust an independent regulator more than one linked to the professional body. Under the current regime, the SRA is funded by the Law Society, the body that represents lawyers and law firms. Currently some 40% of the annual fees paid for a practising certificate issued by the SRA goes to the Law Society.

Other professions are already regulated by independent disciplinary bodies – eg the General Medical Council (GMC) deals with complaints against medics and is independent of the British Medical Association (BMA). Medical professionals pay fees to the GMC but paid membership to the BMA is voluntary.

Similar principles apply among accountants and actuaries where the Financial Reporting Council is their independent disciplinary body in the UK.  Its disciplinary schemes operate independently of the various professional bodies it covers, such as the Institute of Chartered Accountants in England and Wales, the Chartered Institute of Management Accountants, and the Institute and Faculty of Actuaries.

It is said that an independent complaints and disciplinary body would result in more lawyers and firms being referred, whether by the public or other members of the profession.

The SRA has authority to issue warnings and levy fines of up to £2,000 but alleged misconduct assessed to be of risk to the public is referred to the independent Solicitors Disciplinary Tribunal (SDT). The SDT can impose greater penalties such as suspension, striking off and fines on which there is no limit.

In the fourth quarter of 2014, the last year for which records of complaints against solicitors are publicly available, the SRA carried out 3,259 risk assessments, including self-referrals, of which 42% warranted further action.

In the whole of 2014, the SRA referred 168 matters to the SDT. The SDT made 103 orders, 50 relating to solicitors being struck off, 14 to suspensions and 10 to fines, one of £75,000 being the highest recorded to date.

The SRA itself has been pushing for some time to increase the level of fines it can impose on solicitors and law firms beyond the current £2,000 limit which, it argues, is lamentably inconsequential for top-ranked law firms with annual turnovers in excess of a £1 billion. This level contrasts starkly with fines it can impose on Alternative Business Structures and their members – up to £250 million and £50 million respectively.

However it is the reputational impact that can cause the most lasting and public damage. Gone are the days when partnerships comprised partners who knew each other well and could consequently keep any issues among themselves. Firms now have a regulatory responsibility to investigate causes for concern and to report such matters swiftly and comprehensively.  The traditional “no comment” to inevitable media enquiries is unlikely to contain such a story.

The first question for any law firm then is whether they will publicly stand behind the partner or seek to gently distance themselves from errant behaviour.  Is the matter explainable as a breach of policies or trust where the firm can demonstrate it was a victim too?  Was trust in a client instruction misplaced?

In some cases, an issue emanates from a wider “corporate” failing: poor oversight, incorrect advice albeit innocently given and signed off by COLPs or COFAs, not just the individual in the spotlight. Reputationally, these are more tricky scenarios requiring nuanced responses in which to convey lessons have been learned, processes tightened and that similar problems will not arise in future.

There is no ‘one size fits all’ approach. An incident involving partner fraud is a very different scenario to a client matter that simply didn’t tick all the right boxes.  For a local law firm a breach may be reputationally and financially devastating which a larger City firm could weather more easily.

The key PR-wise is to plan ahead as far as possible taking into account all relevant audiences and media arenas and a realistic view of how serious the outcome could get.

• Don’t forget your fellow partners and employees are your biggest asset – give them the tools to manage negative enquiries and sources to whom they can defer.
• Do ensure clients don’t learn about a problem through the media.
• Don’t give too involved a response to a speculative media enquiry or too clipped a response to an important well-informed journalist’s questioning.
• Don’t ignore social media complaints – mud can stick before a regulatory decision is known.
• Do show loyalty to employees whose conduct is being overblown by an overzealous complainant.

At Bell Yard we have assisted a number of law firms where partners and/or firms face investigation and disciplinary action.  If the SRA continues along its chosen path, more firms may find themselves under regulatory and media scrutiny for which timely and experienced advice and support is invaluable.

12 February 2016

• Results from survey on “doctors.net” of almost 1500 doctors from across medical practice
• 85% of medics believe bringing criminal prosecutions into post-death investigations encourages a culture of secrecy and cover-up
• 90% of doctors admit to practising more defensive medicine techniques, in light of increased culture of fear, subjecting patients to additional, often intrinsically risky and intrusive tests, sending costs per patient soaring
• Fewer than half considered they were delivering safer care as a result of increasingly defensive medical practice

A survey of 1443 doctors, conducted by ‘Doctors and Manslaughter’ a campaign group working to raise awareness of the effects of the recent trend towards the criminalisation of healthcare, has uncovered alarming findings in light of the increased involvement of criminal process following unexpected hospital deaths and complications.

Police investigations into healthcare has escalated in recent years following the conviction of respected surgeon David Sellu (now the subject of an appeal).  In the past year alone, 9* healthcare professionals have either been charged, prosecuted or convicted for Gross Negligence Manslaughter.  These recent prosecutions, with the prospect of jail sentences for doctors when patients die, has alarmed many in the profession who say there is no evidence that a ‘blame’ culture actually makes patients safer. There is also a growing body of opinion that the charge of gross negligence manslaughter is being used inappropriately to prosecute doctors in some specialties who, in their daily lives, work in an inherently high risk environment.

Of the 1443 UK doctors responding to the survey, nearly 90% of doctors admitted to being more defensive (ordering more tests for patients than they might need, as a result of the fear of litigation), but less than half admitted that they felt they were delivering safer care as a result. 85% agreed, or strongly agreed, that being open about mistakes was less likely with increasing involvement of the law.

Most health-care professionals accept deaths and complications are best discussed in a transparent, no-blame environment. This allows lessons to be learned and future care to be improved in much the same way that pilots analyse aviation incidents. The threat of criminal sanctions leads to the practice of defensive medicine in which healthcare professionals order more investigations than necessary and the patient may be exposed to harmful procedures they do not actually need. Surgeons are circumspect about operating on high risk patients in case they end up accused of manslaughter if the outcome results in death of a patient – this results in those patients with other underlying health problems potentially losing out on operations from which they have a chance of recovery.

Defensive medicine provides no benefit, other than perhaps to the doctor, and in contrast may cause actual patient harm as well as significantly increasing costs at a time when NHS budgets are under massive pressure. The survey also shows a growing concern that the brightest doctors will not choose to enter high risk specialties such as anaesthetics, obstetrics or emergency surgery as they risk future jail sentences if they do. This could mean that a future generation of patients are made even less safe.

Mr Ian Franklin, consultant vascular surgeon, said:

“Transparency and openness are threatened once the criminal courts become involved. All parties seek to minimise their involvement with a bad outcome case for fear of police investigation, arrest, and prison. Cover-ups will become the norm. This is not good for the wellbeing of future patients.”

ENDS

For more information and requests for interview, please contact:

Co-founders of www.doctorsand manslaughter.org.uk

Mr Ian Franklin      ian.franklin@londonvascularclinic.com

Professor Roger Kirby    rkirby@theprostatecentre.com

Dr Jenny Vaughan   jvaughan@doctors.org.uk

Notes to Editors:

*GNM PROSECUTIONS:   Between December 2014 & December 2015, 9 healthcare professionals plus one hospital Trust have been brought before the criminal courts on charges of gross negligence manslaughter.  This follows the conviction of respected surgeon David Sellu, albeit his conviction is now subject to appeal.

• Vincent Barker death: optometrist locum charged with GNM
• Frances Cappucini. Tunbridge Wells: 2 doctors (incl 1 ethnic minority anaesthetist) charged with GMN & first NHS Hospital Trust on corporate manslaughter charge
• Jack Adcock Death: Ethnic minority Doctor and 2 Nurses
• Phoebe Willis Death: 1 Nurse
• Marie stopes abortion clinic death
• Joshua Gaffney death: 1 nurse

Quotes from the 1443 doctors surveyed anonymously www.doctors.net.uk , the UK’s largest online network of doctors:

“There is absolutely no incentive for me to take on the higher risk case since if it goes badly then not only will I be castigated by my colleagues (who decline such cases) but I will be unsupported by my hospital management. “

“If we are to be prosecuted for errors then every doctor will have to face this – none of us are perfect. If we behave recklessly then prosecution may bejustified but the context of the actions is vital. Reckless to one may be an appropriate and measured response in a given situation to another.”

“Feel constantly under siege, expected to deliver high quality but with less time. Situation is unsustainable and quality will suffer and safety will be compromised in the system as a whole if doctors are held ‘to gunpoint’ by fear of litigation but at the same time expected to see more patients, do more operations, but not given the proper time to see the patients, the proper well managed, designed and run systems with proper competent staff to support them.”

“There is no question the increasing threat of medicolegal consequences directly impacts on patient care choices.”

“I may be less inclined to offer major surgery to less fit patients in future.”

“I am a retired practitioner (Thank goodness)”

“I have been qualified as a doctor for 30 years. I spend a much greater proportion of my time on [administration] and much less time face to face with patients. Yet I feel less confident and safe now than then partly because I am more aware of what can go wrong but also because I am so busy with the above tasks that I have less time to take good care of patients and have proportionately less time gaining actual clinical experience.”

28 January 2016

For immediate release   Friday 11 December 2015

The Criminal Appeal Court has this week granted experienced surgeon, David Sellu, leave to appeal his criminal conviction for gross negligence manslaughter following the death, in February 2011, of a patient at the BMI Clementine Churchill Hospital.

Three Lady Justices, led by the Vice President of the Criminal Appeal Court Division, Lady Justice Hallet, have granted Mr Sellu leave to appeal his November 2013 conviction despite the Appeal coming out of time.

Mr Sellu’s Counsel, Mark Ellison QC was given permission to appeal on the ground of new evidence showing firstly that the patient’s risk of death at the time Mr Sellu first saw him was much higher than the 2.6% put forward by the prosecution and secondly, that the significance of the fact that Hughes had been given dabigatran, a new generation oral anticoagulant, was not fully appreciated at the time. An additional point of appeal is the argument that three of the judge’s directions to the jury were legally flawed.

In February 2010 David Sellu, a highly-respected Consultant Colorectal Surgeon, operated on a patient with a perforated bowel at the private hospital in Harrow, Middlesex (BMI Clementine Churchill). Despite Mr Sellu’s efforts, the patient died two days later.  There followed a sequence of extraordinary events that led to Mr Sellu being tried and convicted of Gross Negligence Manslaughter in November 2013.

Professor Peter Taylor FRCS, retired Vascular Surgeon and representative of the Friends of David Sellu Campaign says:

“David Sellu, FRCS, tirelessly served his patients for 40 years. This case was tragic for both patient and surgeon.  It is very important that the medical complexity of this case is now seen in the light of the fresh evidence.”

In the wake of Mr Sellu’s conviction, many senior medical colleagues have expressed concerns that, despite the passage of time since this tragic incident, hospitals’ systemic failings are not being properly addressed.   Instead there appears to be a rising number of prosecutions against individual healthcare workers over the last year, following Serious Untoward Incidents (SUIs) in hospitals, which do not address patient safety issues.

Research suggests the average Briton may go through 7 surgeries during his/her lifetime[1].  Complications are said to arise in 8-13% of cases, half of which are believed to be preventable through systemic improvements.  Instead, the criminal prosecution of doctors and nurses encourages a culture of cover-up and obfuscation rather than transparent reviews of the full circumstances that led up to the SUI.

Mr Ian Franklin, Consultant Vascular Surgeon and another representative of the Friends of David Sellu Campaign, says:

“Potentially avoidable deaths in hospital are rarely the result of the actions of one person but invariably due to an unfortunate combination of circumstances.  Charging individual doctors with manslaughter does not result in a thorough analysis of what happened nor permit lessons to be learned to protect patients in the future.”

Professor Roger Kirby, Medical Director at The Prostate Centre says:

“If surgeons become paranoid about taking on risky cases under the prospect of personal prosecution should the patient die, more lives, not less, will be put at risk as fewer patients will receive the operations they urgently need.”

In the wake of David Sellu’s conviction almost 2000 concerned members of the public (mostly medical professionals who recognise the complexity of emergency post-operative care in the private sector), signed a petition to have Mr Sellu’s appeal upheld.  Their support paved the way to this week’s successful permission hearing.

Responsible doctors are calling for a review of the way private & NHS hospitals investigate and report unexpected deaths and Serious Untoward Incidents (SUIs) as it is woefully inconsistent.

ENDS

Please contact Bell Yard Communications for further information, including interviews with some of the medics supporting Mr Sellu or on some of the issues raised above:

• Mr Ian Franklin, Consultant Vascular Surgeon
• Professor Roger Kirby, Medical Director, The Prostate Centre
• Colin Leys, Author of Patient Safety in Private Hospitals and How Safe Are NHS Patients in Private Hospitals

Bell Yard Communications:

Melanie Riley, melanie@d2932816.u700.pipeten.co.uk  M:+44 (0) 77755 91244   O: +44 (0)20 7936 2021

[1] http://chpi.org.uk/wp-content/uploads/2014/08/CHPI-PatientSafety-Aug2014.pdf  (para 47)

11 December 2015

Black Friday may be a bonanza for retailers in revenue terms but it also represents a key risk day for them and their customers, in the guise of the heightened threat of a cyber-attack, according to the consultancy ThreatMetrix. It has warned that online criminals will be super-active over the festive period, starting from today and is predicting hacks will double this year compared to the data-breach levels it measured last year.

Of course, data-breach causes crisis for a company whatever the time of the year. The IT and reputational challenges are considerable. But now in the wake of Ashley Madison and Talk-Talk, victim companies are likely to be more in the spotlight than ever as the media look for further examples of data-hacking and to assess how the company concerned is handling their crisis.

There are various PR lessons to be learned from recent high-profile cyber-events which we summarise here:

1. Dont speculate on the perpetrator:  it’s fine to say the police or NCA are investigating so it would be inappropriate to comment.
2. Don’t overplay the victim card: customers will have little sympathy that IT systems weren’t robust enough to keep hackers out.
3. Do be clear, honest and transparent on the data accessed and the implications – identity only, bank details, photos or whatever. Trying to hide the true extent will only come back to bite you. However it may be possible to take some heat out of the problem, if you can relativise it or talk of active customers or whatever.
4. Do give logical advice and assistance about password changes required.
5. Do try to communicate with customers directly and not just through the media – post FAQs on your website, have extra phonelines manned 24/7, respond rapidly to tweets and social media posts. A customer back-lash on twitter for example can fast become a traditional media story the next day if not swiftly dealt with.
6. Do judge when the CEO should front-up to media enquiries to show you are taking the issue seriously.
7. Do apologise to customers: don’t let the lawyers talk you out of that one, regardless of the class action lawsuits in the wings. You can ask for patience and understanding in the eye of the storm as you fix things but sorry is important to say.
8. Don’t be afraid to be transparent about some of the IT fixes being put in place. It can hopefully be done without opening the company to further risk. However the tech and financial community will judge you wisely if you are investing in the right upgrade.
9. Do offer customers compensation of some kind after the event: this can go a long way to take any bad taste away for the fact their data has been stolen, even if the threat was notional and not in fact hugely impactful.
10. Do be prepared to talk about your experience after the event. For customers and stakeholders to know you have learnt from the experience can be hugely reassuring and it helps draw a line in the sand to be able to move on.

Bell Yard has worked on various breach situations both in the background giving objective advice away from the fray, and in the front-line handling media on a client’s behalf. The crisis typically lasts 3-5 days and then the calm comes…until any fine from the ICO resurrects the issue.

26 November 2015

There’s something truly sad, and rather depressing, about the media appearances by the disconsolate father and stepmother of Becky Watts, the Bristol teenager brutally killed by her step-brother, aided by his girlfriend, in the wake of their convictions.  As consultants to individuals facing the most tumultuous of times, there are moments when compassionate advice is all about saving clients from themselves.    Of course there’s huge media interest in such a despicable tale, and I’m sure they have handled the family with as much sensitivity as individuals, working for large media organisations in a highly competitive environment, ever can.

Does the public really need to watch first-hand a family ripped, but fortunately not (yet) broken, by such tragedy?  Is there not something more powerful about leaving us to only imagine the difficulties they are having to face and overcome, amidst the grief, guilt, anger and betrayal they must feel.   There were words in the family’s statement alluding to the distaste among the extended family at the fact of people making money out of murder, presumably referring to those within the fold being paid to tell their tales.

If there were ever a need to exert greater control over our media, I would venture to suggest it is in times of tragedy.  I hope time away from the exhausting and relentless media spotlight eventually brings this family healing and at least a modicum of peace that anyone in their ghastly situation truly deserves.

13 November 2015

Given London’s credentials as a highly cosmopolitan city, it is well known that our court system attracts family disputes involving international parties, providing they can prove some nexus to the UK.  Pauline Chai continues to fight her husband, Laura Ashley chairman Mr Peng, to have her divorce heard here, on the basis of her residency in Hertfordshire. Anastasia Goncharova had a minor victory recently in her High Court battle to have her alleged father’s DNA tested in her bid to prove she is oligarch Mr Bendukidze’s “secret daughter” with a claim to part of his $1billion fortune. This week we learnt that Ms Janan Harb, a former wife of the late King Fahd of Saudi Arabia, has succeeded in her claim for a £15million payout as well as two luxury flats in Chelsea because the King promised to look after her for life, yet his son reneged on the deal.

One interesting aspect of this case was the refusal of the defendant, Prince Abdul Aziz, to attend the High Court hearing, despite Mr Justice Peter Smith ordering him to give evidence in person. Apparently the Prince’s advisers feared his appearance would result in “a media circus” and was concerned how the case would be viewed by the Saudi public. He has since been ordered to pay £25,000 to charity for this contempt of court by non-appearance.

Clearly to someone like Prince Abdul Aziz this sum is a drop in the ocean. No doubt he feared adding credibility to the claim by facing it (literally) and wanted to avoid the risks of oral cross-examination.

Yet the media circus has happened anyway, in part fuelled by his failure to attend. Mrs Harb’s story is not simply on Daily Mail.com and in a raft of UK media but has also been reported by global publications including Arabian Business, New York Times and AFP.

International parties litigating in London need to understand that media interest in their disputes can be managed. Hiding is rarely a wise option. Our courts are transparent and our media cannot be muzzled as some may be accustomed to at home. Often the reputational aspects of a case endure and tend to outweigh any short-term legal or financial pain. No doubt social media across the Arab world is abuzz, currently illustrating this point all too well. Perhaps in this instance Prince Abdul Aziz would have been better off settling with Ms Harb in advance of this week’s judgment to avoid his much-feared moment in the spotlight? That’s one way to buy Ms Harb’s continued silence whilst muting the airwaves to boot.

4 November 2015

The new ‘TripAdvisor’ style website for lawyers – ReviewSolicitors – should come with a series of warnings both for disgruntled customers looking to take pot shots at their lawyers and for solicitors wanting to protect their reputation by stamping out any criticism considered harsh or unfair.

ReviewSolicitors allows people to rate their solicitor whether or not that law firm is registered with the site but, unlike the infamous ‘Solicitors from Hell’ website which was closed down following legal action from the Law Society, the new platform is intended to be a productive resource for lawyers and the public alike.

This is unlikely to stop angry clients having a rant and some lawyers rushing to threaten, or even launch, defamation proceedings – after all speed is often of the essence especially when dealing with potential online libels.

Seriously damaging and defamatory allegations can and are made on websites. This was illustrated in the recent case of Brett Wilson LLP v Persons Unknown where Judge Warby ruled that words posted on a new website calling itself ‘Solicitors from Hell UK’ and suggesting that the claimant firm was corrupt, incompetent and oppressive were ‘clearly defamatory.’

In that case there was no attempt by the site nor its unknown operators to defend the claim but there may well be instances where allegations of incompetence or negligence, for example, may be warranted and can be successfully defended.

“Whether these allegations would give rise to an actionable claim in defamation by the lawyer concerned will largely depend on whether the allegations are true, could be defended as honest opinion or could be protected under qualified privilege,” said Amber Melville-Brown, Media and Reputation Management partner at Withers LLP.

In other words lawyers should think twice before starting a legal action that may end up damaging rather than protecting their reputation. Words do hurt and can cause significant damage but libel litigation may not be the best way to remedy a damaged reputation, said Ms. Melville-Brown.

“Careful consideration needs to be given to whether the downside of allowing the allegation to remain online, is worse than the time, energy, costs and publicity of taking the opponent on,”she said.

Indeed, a negative post might be the perfect opportunity for a law firm to beef-up or launch a ‘best practice’ for dealing with customer complaints. There are also a number of communications tools to rebut unfair and inaccurate reporting, without resorting to legal remedies, though with ongoing client confidentiality restrictions, being too open about the facts in mitigation, may be tricky.

Many solicitors already operate under the Law Society’s quality mark for excellence, Lexcel, which involves managing an effective complaints procedure but the possibility of being attacked online should serve as a timely reminder to any lawyer that clients and their feedback matter.

For their part, angry or disappointed clients should think twice before venting online. Being a defendant in a libel action in the UK is notoriously difficult because the onus of proof lies on the defence. It is the opposite in the US where the burden is on the plaintiff to show that the allegations are untrue and where, not surprisingly, there are already a number of well-established lawyer-rating sites.

It is also not always obvious to a client, and potential defendant, the precise extent or details of the work done by a solicitor on his/her behalf. For example, the solicitor is likely to have a record on file of checks made and work done which could catch out an unwary client. And, perhaps most importantly, along with the complex law and difficulties with factual evidence, potential defendants are likely to be up against well-heeled and insured lawyers.

2 October 2015

The Consumer Rights Act, which came into effect today, 1 October, is unlikely to herald a deluge of class actions despite the implementation of an ‘opt-out’ system for collective litigation that will enable as-yet unidentified individuals to be included in competition law cases.

The Act reverses the current system which requires all claimants in a collective action to expressly ‘opt-in.’ The rationale in the past had been to avoid unmeritorious litigation and US-style class actions but more recent thinking has come down in favour of making it easier for private individuals and businesses to take enforcement action.

However, the new legislation is not a bonanza for consumers looking to hold businesses to account – it only applies to infringements of EU or UK competition law and to claims brought on or after 1 October 2015.

The Competition Appeal Tribunal (CAT) will now have jurisdiction to hear cases in all competition infringement actions not, as now, just those subsequent to a previous decision by the relevant competition authority – so-called ‘follow-on’ actions.

In order to safeguard against frivolous and vexatious litigation, the CAT will have to certify that the collective action meets a number of criteria before allowing the claim to go ahead. These include:

• The adequacy of the representative bringing the action – the CAT will only authorise a person to act as a representative if it is ‘just and reasonable’ to do so.
• The collective claims raise the same, similar or related issues of fact or laws.
• The standard costs rules will apply such that the losing party is required to pay the successful party’s costs.
• Exemplary damages cannot be awarded and damages-based agreements, where the acting law firm receives a percentage of the damages if the claim is successful, are unenforceable.
• The opt-out procedure does not extend to foreign claimants who will still need to expressly opt-in.

The new system will primarily apply to price-rigging claims such as the illegal cartel operated by Virgin Atlantic and British Airways some ten years ago in which the airlines colluded to fix air passenger fuel surcharge prices and the current freight cartel action involving BA and eleven other airlines.

It won’t apply to the vast majority of main consumer claims, says David Greene, senior partner at Edwin Coe and expert in Competition Law. “It is unlikely to benefit the very people it was brought in to assist because it only applies to anti-trust actions.”

Mr Greene says that funding is also a big issue because in the opt-out system it is impossible to know the number of potential and actual claimants. He said this could deter third party funders.

Louis Young of third-party funder Augusta Ventures disagrees. “Costs can often dwarf the size of damages especially if they aren’t managed properly. With an opt-out system adverse costs risks are minimal because you only run one claim. This is certainly not a deal-breaker,” he said.

Businesses are understandably nervous about their increased level of potential exposure under the new regime which allows the CAT to assess damages on an aggregated group basis rather than limit an award to the amount of damages claimed by each opted-in claimant and quantified on an individual basis.

This means that the damages paid by defendants could often represent more than that which is actually claimed by members of the claimant group. If this happens, the unclaimed portion doesn’t revert to the defendant – instead the new system enables the CAT to allocate any unclaimed portion of the damages to a prescribed charity or to pay these to the representative in respect of costs incurred.

Whilst the Consumer Rights Act is unlikely to make an enormous difference to competition claims, it will give consumers and small businesses more options in competition infringement cases. If the new system is successful it could have a knock-on effect with product liability cases being the next in line for opt-out collective actions.  The recent VW scandal could well mark the first big test of this new regime.

1 October 2015

Former Prime Minister Tony Blair has laid into the UK’s press regulator for rejecting his complaint against the Daily Mail over an article suggesting he tried to wriggle out of giving evidence to a parliamentary inquiry.

Blair’s attack against the Independent Press Standards Organisation (IPSO) comes as the regulator celebrates its first year of operation having been set up last September in the wake of Lord Justice Leveson’s Inquiry into press standards.

IPSO replaced the discredited Press Complaints Commission, widely criticised for its lack of action in the News of the World phone hacking affair. The main criticism of the PCC was its total lack of independence.

“The PCC has proved itself to be aligned with the interests of the press, effectively championing its interests,” Leveson wrote in his November 2012 Report. “The Editors’ Code Committee which sets the rules is wholly made up of serving editors. Its members are appointed by the Press Standards Board of Finance, itself entirely made up of senior industry figures.”

IPSO, on the other hand, is peopled with the great and good from across legal and business sectors as well as the fourth estate and comes complete with a Chairman and board, a full executive, and a Complaints Committee and Editors’ Code of Practice Committee appointed by an Appointments Panel. It is shortly to add a Head of Standards.

Independence doesn’t seem to be an issue, according to media experts. “Sir Alan Moses [IPSO’s Chairman] took the word ‘independent’ literally a year ago and so far IPSO seems to have been strikingly independent,” said Dan Tench, media partner at London-based law firm Olswang.

However the eclectic mix of IPSO’s personnel comes with its own problems – beyond the journalists on the board and complaints committee, there is a lack of obvious understanding of media and freedom of expression, which could be a challenge for the organisation. Also, and unlike its predecessor, IPSO hasn’t been proactive so far – for example the PCC took on its own and anonymous cases, carried out research and ran training courses for journalists and editors.

Blair’s complaint, like the overwhelming majority of IPSO cases, was brought under Clause 1 of the Editor’s Code of Practice, ‘Accuracy’ and the former prime minister said that the regulator’s decision amounted to a major failure.

Other politicians have been more successful. The Daily Telegraph was held to be in breach of the Editors’ Code because it failed to contact Nicola Sturgeon before a front page story reporting a leaked memo claiming Nicola Sturgeon secretly supported David Cameron in the General Election. IPSO required the paper to make a reference to the adjudication upholding the complaint on page 1 and print the adjudication and background in full on page 2.

Similarly significant rulings include one against The Times in relation to its 24 April article headline “Labour’s £1,000 tax on families’ which IPSO adjudicated had a misleading headline and first sentence: “Ed Miliband would saddle every working family with extra taxes equivalent to more than £1,000.”

In its first year IPSO has upheld 48 complaints, while 169 have not been upheld.

9 September 2015

UNPRECEDENTED CONCESSIONS BY INTERPOL OVER UNLAWFUL RED NOTICES FOR BUSINESSMEN RIZVI AND AL-WARRAQ

• Red Notice cancellations and public announcements success for British businessman, Mr Rafat Ali Rizvi, and Saudi National, Mr Hesham Al-Warraq
• Indonesia now faces increased difficulty in demanding enforcement abroad of its unlawfully-obtained domestic convictions of Rizvi and Al-Warraq
• Former interpol chief lawyer, Dr Rutsel Martha, helps to deliver unprecedented remedies for his clients, Rizvi & Al-Warraq

London:   INTERPOL has cancelled the hotly-disputed Red Notices issued against Mr Rafat Ali Rizvi and Mr Hesham al-Warraq. INTERPOL has also taken the unusual step of announcing the cancellations on its public website [http://www.interpol.int/News-and-media/News/2015/N2015-115] and highlighting the Organisation of Islamic Cooperation (OIC) Arbitral Award in favour of Al-Warraq.

Advised by Dr. Rutsel Martha of Lindeborg Ltd (London) and Mr. George Burn of Vinson & Elkins LLP (London), Interpol’s concession is a long-overdue but highly welcomed result for Mr Rizvi and Mr Al-Warraq.

Dr Martha brought to bear his intimate and unique perspective and unrivalled expertise on INTERPOL matters to secure:

• The cancellation of the Red Notices against al-Warraq and Rizvi, as well as the deletion of all information concerning them from INTERPOL’s police files;
• Confirmation letters signed and send by INTERPOL to risk profiling agencies, such as World-Check, Lexis Nexis, specified due diligence companies etc.
• Formal letters addressed to Mr Rizvi and Mr al-Warraq certifying their status in relation to INTERPOL;
• Cancellation letters to specified law enforcement agencies of all 190 INTERPOL member countries; and,
• A public statement to remain on INTERPOL’s public website confirming the foregoing.

Such results have never been obtained before from INTERPOL.

The Red Notices cancellations and announcements mark the second major success for Dr. Martha and Mr. Burn acting as co-counsels, the first being to procure the OIC Award in Al-Warraq v Indonesia (15 December 2014)[1], rendering Indonesia’s proclaimed international repatriation of ‘their’ assets a major uphill battle[2].

The Red Notices were first issued by INTERPOL at the request of National Central Bureau of Jakarta when Mr. Rizvi and Mr. Al-Warraq were embroiled in the politically controversial Bank Century bailout in Indonesia. The Red Notices have severely affected the lives and businesses of Rizvi and Al Warraq and of some people very close to them. INTERPOL’s concessions betray its acknowledgement that mere cancellation of the Red Notices would not have sufficed to undo the consequences suffered by Rizvi and Al Warraaq,.

According to the Tribunal in the OIC Award, Indonesia’s conduct in the prosecution and criminal conviction of Mr. Al-Warraq breached the fair and equitable treatment standard.

Further background:

Indonesia owed fair and equitable treatment to Mr Al-Warraq under the OIC Agreement by virtue of the most-favoured-nations treatment clause in the said treaty. Mr Al-Warraq challenged Indonesia’s treatment of him at the OIC Tribunal which found Indonesia breached this fair and equitable treatment standard and was therefore responsible for an internationally wrongful act. The Tribunal also aligned itself with the view that the fair and equitable treatment in international investment law imply a respect of human rights norms and, in particular, those concerning fair trial and due process. The Tribunal declared Indonesia culpable for a “[f]ailure to comply with the most basic elements of justice when conducting a criminal proceedings” against Mr. Al-Warraq.

These findings of the Tribunal have a number of implications in international law. Firstly, by virtue of Article 17.2(d) of the OIC Agreement, the Tribunal’s ruling renders Mr. Al Warraq’s conviction null and void. Article 17.2(d) provides that awards are “…final and cannot be contested. They are binding on both parties who must respect and implement them. They shall have the force of judicial decisions…The contracting parties are under an obligation to implement them… as if it were a final and enforceable decision of its national courts.” As a result of the OIC award therefore, the criminal convictions of Mr. Al Warraq and Mr. Rizvi in Indonesia can be considered as having been de facto overruled.

Secondly, it means that no state should render any aid or assistance to Indonesia’s internationally wrongful act. All states therefore have an obligation to decline mutual assistance and cooperation in relation to the criminal convictions.

Thirdly, it implies that no international organization, including INTERPOL, should render any aid or assistance to an internationally wrongful act. By issuing a Red Notice based on Indonesia’s unlawful criminal convictions, INTERPOL aided and assisted Indonesia’s wrongful conduct. By aiding and assisting, INTERPOL itself committed a wrongful act, which triggers the obligation to cease the wrongful act and to offer assurances and guarantees of non-repetition, by cancelling the Red Notices.

Lastly, according to INTERPOL’s own internal rules, the determinations of the OIC Tribunal have a direct consequence on whether the Red Notices continue to meet INTERPOL’s internal standards for publication of Red Notices.

Given that, according to the INTERPOL’s Rules on the Processing of Data, the requesting country should not be acting in breach of any of its international obligations, and also that the request should be of interest for the purposes of international police cooperation, the Red Notices published against Mr. Rizvi and Mr. Al- Warraq cannot be considered to have satisfied the conditions

The Red Notices against Mr. Rizvi and Mr. Al- Warraq were provisionally blocked in October 2014. After intense intervention by Dr Martha and Mr Burn, on 18 August 2015 they were, finally, permanently cancelled and deleted by INTERPOL.

This means that no National Central Bureau can use INTERPOL’s channels with respect to the matters raised in the Red Notices, that all internal and public databases are be updated to reflect these cancellations, and that the National Central Bureaux of the UK, Saudi Arabia, Hong Kong, Singapore, and Indonesia in particular have been notified of this outcome. As a result, Mr. Rizvi and Mr. Al-Warraq will be able to travel and conduct business without restriction

Dr. Rutsel Martha is a London based international legal consultant since 2014. Dr Martha is the former General Counsel of INTERPOL and author of, among others, “The Legal Foundations of INTERPOL” (Hart Publishing, 2010) and “The Financial Obligation in International Law” (OUP, 2015). He has held academic posts in National University of Singapore Law School and Washington College of Law of the American University, and has published extensively on this subject matter. His works on international law include: “Challenging Acts of INTERPOL in Domestic Courts” (In: Challenging Acts of International Organizations Before National Courts, Ed. A. Reinisch, OUP, 2010), and “Remedies Against INTERPOL” (Online: 2007). 
He has handled cases before a wide variety of international courts, tribunals and quasi-judicial bodies, including the ILOAT, ICJ, INTERPOL’s CCF etc.

The firm’s (Lindeborg LLP) clients include former heads of State, former senior government officials, industrialists and business executives facing adversity at the hands of governments and international bodies, or business disputes converted into criminal allegations. Typically, clients seek the firm’s assistance with challenging INTERPOL, fighting extradition requests in domestic courts, challenging UN, EU and US sanctions, supporting asylum requests, and opposing Mutual Legal Assistance requests regarding assets freezes and confiscations or addressing the consequences of inaccurate and negative publication and reporting.

The successful result for Messers Rizvi and Al-Warraq is testament to Dr Martha’s unique experience, knowledge and skills acquired as a member of the select group of public international lawyers. It seems safe to say that those frustrated by INTERPOL’s actions now have, in Dr Martha, someone uniquely experienced to turn to who can overcome INTERPOL’s opaque ways of dealing with complainants.

Mr. George Burn is a partner in the Vinson & Elkins International Dispute Resolution Group. His practice covers both Investor-State arbitration and commercial arbitration.  He has a wealth of experience in cases that involve issues of public international law, private international law, and complex or novel issues of jurisdiction. As well as acting as counsel, he regularly sits as an arbitrator. His cases to date have been under the rules of the ICC, the LCIA, UNCITRAL, the CRCICA, the LCIA India and the OIC Investment Agreement, and under the default rules in England’s Arbitration Act of 1996.

[1] “Convictions overturned in Bank Century arbitration”, CDR News, 7 January 2015 (http://www.cdr-news.com/categories/arbitration-and-adr/convictions-overturned-in-bank-century-arbitration)

[2] “OIC ruling postpones asset repatriation” Haeril Halim, The Jakarta Post, Jakarta | National | Mon, April 27 2015, 6:06 AM (http://www.thejakartapost.com/news/2015/04/27/oic-ruling-postpones-asset-repatriation.html)

24 August 2015

I can’t help but feel that gender difference has indeed played a role in the Chelsea FC doctor saga propelling the story to newspaper front pages – but perhaps not just simply down to the display of apparent sexism by an emotional male manager.  It strikes me that the mild, but meaningful, Facebook posting by Dr Eva Carneiro was the emotional reaction of a woman feeling hard-done-by.

Such gentle, but determined, defiance shown by a woman against a perceived unfairness is what I think marks out one of the key difference between the sexes.  I have been deeply fortunate in recent months to meet several incredible women who, having long abided the male-dominated structure in which they operate, have each had cause to show remarkable strength of character to defy the system when injustice has reared its ugly head. They’ve bravely, and rightly, ignored the ‘don’t make a fuss’ mantra of predominantly male lawyers, doctors, politicians, establishment bigwigs (and their advisors), police officers, professors and the like, to succeed in highlighting some very different, but equally troubling, issues.

I have never been a bra-waving, unshaven member of the feminist club – if such a set exists.  I’m of the view that the glass ceiling can be readily shattered if you are sufficiently determined, energetic, resourceful and smart.  However I am beginning to realise that if there’s a wrong that needs righting, a moral convention that needs challenging, or a societal system that needs rebalancing, it’s the female of the species that more often than not bravely puts her head above the parapet and coalesces her community to create beneficial change.  It’s true these women are often supported in their endeavours by many a courageous man, blessed as many males are with analytical function and a deep-rooted sense of probity.  But if there’s a cause to be fought for, I’ll join those ranks led by a woman inspired any day.

When I consider the ‘religious’ problems of sections of the Middle East with their patriarchal systems and cruel brutality, I am confident it will be the women of the region who will eschew violence and instead demonstrate the strength needed to bring equality and fairness where it is yet to exist.

Men show their power, bravery, determination and quest for success in different ways.  There will always be male achievers whose accomplishments we can joyously celebrate.  But where less-applauded but important challenges exist, I back women to succeed.

Dr Carneiro, already a rare woman in a male-dominated field, may have inadvertently started a chain of soul-searching to find an acceptable balance between safety and success on a pitch.  Women tend to call it cheating if grown men, uninjured, are left rolling around on the ground.

In my view, Dr Carneiro should avoid the phalanx of lawyers advising her she’s got a watertight claim for constructive dismissal, discrimination and the like.  Her long term reputation will likely be better served by moving to an environment that fully recognises her talents and where she can spearhead the discussion of wealth versus welfare. Rugby has considered the issue during its incidents of concussion, and grand tour cycling is getting there, in its own way.  The injustice is less about the side-lining meted out to Dr Carneiro, and more about the pressure placed on medics to turn a blind eye to illness or injury for the sake of the sport.  Dr Carneiro should run into the arena once more.

14 August 2015

London has recently been reaffirmed as the libel capital of the world following the case of Russian businessman and former senator, Vladimir Sloutsker, who has been awarded £110,000 in defamation damages by the High Court for allegations published in the Russian media.  However for cases arising post the introduction of the Defamation Act 2013, establishing English jurisdiction may prove somewhat trickier.

In this latest case, crucially predating the Defamation Act 2013, Mr. Sloutsker sued campaigning Russian journalist Olga Romanova over allegations that he put out a contract for the murder of her husband Alexei Kozlov and was also instrumental in Kozlov’s criminal prosecution and imprisonment.

Ms Romanov’s claims were made on the website of Moscow-based radio station Echo Moscow, in two articles on the website of Russian newspaper gazeta.ru and on a programme on Radio Liberty, which broadcasts to Central and Eastern Europe.

This ruling comes fifteen years after the House of Lords stunned publishers by letting the late Russian oligarch Boris Berezovsky sue American magazine Forbes in the English courts over an article concerned with matters that took place exclusively in Russia but which was published in England via a small distribution of Forbes magazine in print and on the internet.

Mr. Justice Warby ruled in February this year that the facts of Mr. Sloukster’s case were “not as striking as those of Berezovsky” and his “links not as strong” but said he has “a persuasive case that he had and has a substantial and widespread reputation in this jurisdiction.”

In English law there is no ‘single publication rule’ and each communication constitutes a separate libel so that each visit to a website by a person in England constitutes a publication in the same way that a single copy of a magazine carrying the offending article would. In both the Berezovsky and Sloutsker cases the courts ruled that the distribution of the offending publications in England was significant even though small compared to worldwide distribution.

There had been some cause for optimism among media defence lawyers that the chilling effect on free speech of the UK’s libel law was losing its bite after the dismissal in 2013 of two defamation cases brought by foreign nationals on the basis that they had no real reputation in England to defend.

The Defamation Act has fuelled that optimism by providing, under Section 9, that that non-European claimants would have to show England was the most appropriate jurisdiction to bring an action here. However, the Sloutsker case was decided on law existing before the Act came into force at the beginning of 2014.

“If section 9 were in play, I think it would have been harder, although the terms of Mark Warby’s judgment perhaps leave the door somewhat more ajar than we might have expected,” says Dan Tench, media partner at Olswang.

So until Section 9 gets properly tested in our courts, it seems that foreign claimants with sufficiently deep pockets can launch libel actions in London with every chance of success and despite having questionable links with England.

“The most significant point [in the Sloutsker case] is that libel tourism wasn’t argued and the defendant (for the most part) didn’t turn up,” says Mark Stephens, specialist media lawyer at Howard Kennedy.

“It is a worryingly high award as it’s over 10x the defendant’s annual salary and way beyond anything needed for vindication,” he adds.

3 August 2015

Crowdfunding gives retail investors a chance to back projects close to their heart and it’s no surprise that early successes have been in consumer-facing sectors such as clean technology, the arts and wine and beer ventures. Now the emotional pull is being used to attract funds to social justice litigation and fill an increasingly large hole in the availability of public money for these cases.

CrowdJustice, a website that crowdfunds public interest cases, has just launched its first action in the UK High Court. Gilberto Torres, a Colombian trade unionist, alleges that BP subsidiary Ocensa employed paramilitaries to kidnap and torture him. Torres’ has lawyers acting for him on a no win, no fee basis and he hopes to raise money via CrowdJustice to pay for court fees, translation of documents and a Colombian legal expert.

It is a timely breakthrough for CrowdJustice as the UK government moves to scrap the Human Rights Act and continues to make swingeing cuts to legal aid but it is difficult to see who the platform aims to target and how it might be used as a model for a wider range of litigation.

Unlike traditional crowdfunding that offers investors rewards, shares or the chance to share in any profit, CrowdJustice states that it gives backers the chance to have an “impact on a specific issue or even contribute to changing the law.”

In other words, CrowdJustice operates like a charity.

“It will work best where a group of people want an issue resolved, for example in the Human Rights arena or for a community dealing with a planning application,” says Harry Spendlove, a solicitor in the commercial litigation department at London-based Stewarts Law.

But could crowdfunding provide an alternative model for third party litigation funding which has evolved into the mainstream and is generally viewed as a mature, professional and increasingly popular resource for commercial cases.

Litigation involves risk – not only the risk of winning or losing but. in the UK, the risk that the loser will be responsible for the winner’s costs. For this reason crowdfunding is unlikely to be appropriate for complex commercial cases without some form of compulsory regulation.

It is over a year since the Financial Conduct Authority implemented regulation for crowdfunding, both loan-based and investment-based, and it has been applauded for providing a simple authorisation and verification process.

However, the FCA clearly distinguishes between protecting the investor against the credit risk of the borrower, in loan-based crowdfunding, and managing the more complicated risk in investment-based crowdfunding where consumers buy debt securities or shares, often in start-up companies. In the latter, FCA rules require that investors must be sophisticated or high-net worth individuals, have received advice or are investing no more than 10% of their net assets.

Crowdfunding litigation, which isn’t covered in the FCA rules, is more akin to investment-based crowdfunding in complexity because of the risk of litigation, in particular the costs implications. The chances are that the FCA would require safeguards to ensure that an investor fully understood the risks and that only cases with a decent chance of success, straightforward issues and a clear budget analysis were taken on.

Even then the costs implications would require special considerations.

“There are models recently launched in the US, such as LexShares, that allow investors to invest in litigation but the US doesn’t have a ‘loser pays’ protocol,” says Mr. Spendlove.

One way around this would be for investors to put in more than their contribution to cover an adverse order or otherwise provide some pool of money for an after the event insurance policy, suggests Mr Spendlove.

Again, some form of oversight would be required to analyse costs risks adding another layer of complexity and perhaps even triggering a contingency funding arrangement, rather like a solicitor’s conditional fee agreement.

In these circumstances it may be too early to introduce a crowdfunding model into the current third party funding market that is markedly different to existing third party funders.

27 May 2015

So the boss of Thomas Cook has finally said sorry to the parents of Christi and Bobby Sheppard, the children killed by a leaky boiler during their holiday in Corfu.

Whether this is a case of ‘too little, too late’ only time will tell.  The company claims their sales have not been impacted by the furore over how they have behaved since the tragedy and in particular around last week’s inquest. However the power of the consumer should not be underestimated, particularly when we know thousands have already criticised and called for a boycott of the company on social media.

Thomas Cook has experienced a media battering this week and not without cause. By all reports it has handled this issue like an automaton from the outset, primarily concerned about liability and the bottom line with no humanity shown to the family. Then responding clumsily and woodenly when faced with a public outcry.

This will no doubt become the case study PR gurus point to in future when they preach the 5 golden rules of a crisis:

• Don’t let lawyers dictate the strategy. Admissions of responsibility and the financial cost of such should always be weighed against public and reputational considerations.
• Always involve outside counsel to avoid the danger of group-think in decisions, words and deeds.
• Don’t dance on a pin-head to avoid saying sorry by offering a multitude of platitudes instead. Sometimes only sorry will do.
• Apologies made after a media pounding lack authenticity. Better done early on as a genuine gesture and by a spokeperson who can convey some sense of humility and emotion.
• Take all stakeholders into account. The media are just one constituency but a dialogue with them should come after direct and personal communication with any victims and those involved.

Bell Yard’s observation is that you will be judged as much by how you handle a problem as on the problem itself.   Thomas Cook will now surely join the ranks of BP and RBS as masters in how to turn a crisis into an even bigger reputational disaster.

20 May 2015

“If the UK really wants to be its own boss it would have to formally withdraw from the ECHR” Marietta Cauchi, Senior Consultant

The Bill of Rights proposed by the new Conservative government is intended to replace the Human Rights Act introduced by the then Labour government in 1998. It is due to incorporate into UK legislation the rights contained in the original European Convention of Human Rights (ECHR) but without the body of law created by cases brought under the European Court of Human Rights (ECtHR) in Strasbourg over the years, some of which have caused particular political unease in the UK.

The idea is that judgments from Strasbourg will be advisory only and the UK’s Supreme Court will be the final arbiter. The architects of the Bill of Rights believe that, in this way, the UK Parliament will have control and won’t be answerable to “Europe”. But will it really achieve this through a Bill that can be interpreted by UK judges just as the ECHR has been interpreted by European judges?

It is impossible to be certain of how any new legislation might work until the government publishes detailed proposals and in particular reveals the extent of rights covered and how prescriptive the legislation will be. Indeed it is hard to imagine which of the convention rights the government could exclude if it is to be faithful to the basic principles of human rights.   Constitutional lawyers are already arguing the point.

The government has said that it has no intention of diluting the basic rights set out in the convention but argues with what it has referred to as the ‘warped, arbitrary, extension of those rights’ by Strasbourg. It says the UK Parliament ought to have the final say over British legislation.

Some critics of a proposed Bill of Rights argue that Parliament already has this power because even though the UK has promised, in signing the ECHR, to abide by decisions of the Court in accordance with international law, if it doesn’t want to keep that promise, nobody can force it to do so and to change UK law. –

In these circumstances, any new legislation may only serve to highlight tension between the UK Parliament and its own judiciary if the Supreme Court delivers judgments in human rights cases that the government considers undesirable.

If the UK really wants to be its own boss it would have to formally withdraw from the ECHR, something the Conservatives have, so far, ruled out. Withdrawal would prevent UK nationals from taking human rights’ complaints to Europe.  It would also have consequences, too convoluted to resolve, on the devolution settlements in Scotland, Wales and Northern Ireland which presuppose Britain’s membership of the Convention.

The Bill of Rights seems an unnecessary complication because it won’t prevent the subjugation of Britain to arbitrary ECtHR judgments – the alternative, withdrawal from the ECHR, is surely a step too far?

One thing is certain, the new Justice Minister, Michael Gove, and his euro-sceptic junior minister, Dominic Raab, have a challenging task ahead of them.

13 May 2015

Communicators lose credibility when the audience thinks of the messenger and not the message… All people want is natural honesty, alongside some realism

Ours is the art of communication so I am always intrigued why people say so much, so often, how they choose to say it and why to so little effect.  Perhaps it’s the proliferation of social media giving us all a platform that few of us truly use wisely.

Conversely, great communication is a gift to the senses – think Churchill (“we will fight on the beaches”), Kennedy (“ich bin ein Berliner”), Nye Bevan (“I stuffed their mouths with gold”) among many others.  Despite Bevan’s stammer he was, by all accounts, a natural orator.  Tony Blair had a talent for communicating too only regrettably, in this day and age, political speeches often appear formulaic, over-prepared and unnatural.

Watching Ed Miliband and David Cameron grasping for votes on the election trail and you could spot the coached language a mile off – Ed dropping his ‘t’s when talking to ‘ordinary people’ (Iike Russell Brand?), ‘Call Me Dave’ adding the odd obscenity, supposedly to inject passion into his campaign.

They both like to recount anecdotes from times spent with the likes of Harry in Huddersfield and Mary from Manchester to illustrate their understanding of the ordinary British voter. Yet none of it really rings true.  Instead it’s at the rare moment when you hear Miliband wishing he’d spent more time with his father or Cameron speaking of his personal experience with the NHS that they actually sound like they’re speaking from the heart, whether or not speechwriters have busily crafted their lines.  And that’s the trick – delivering in your tone of voice.

This week I read an article by singer Charlotte Church. She was defending her right to be heard campaigning on the streets bearing a placard denouncing the new Tory government (presumably for being elected).  She, along with any other individual, is entitled to have her views published though, given her celebrity status, she is likely to receive a bigger platform than most.  I applaud anyone who acts on their beliefs, not just speaks. Yet instead of subjecting her analysis to scrutiny, I found myself doubting she’d written the lines attributed to her when explaining her efforts to “further political discourse in my community” rather than sitting in a “cosy leftie bubble with my baja-sporting friends, spending our free time attending vegan popup barbecues” and encouraging others to carry on campaigning “just because the piratical Conservative party now have a majority doesn’t mean that we’ve lost”.  I’d love to believe Charlotte naturally speaks of furthering discourse, her “leftie bubble” while dubbing opponents “piratical”.  It’s just that I sense the hand of someone else working hard to pen an admittedly amusingly-worded diatribe to silence her critics and defend her reputation.  I’m not saying Ms Church doesn’t believe wholeheartedly in what’s written under her byline – but I would have taken it more seriously had I believed it was by her, not for her. Tone of voice matters.

I’m all for getting the professionals in – but there is a point at which their work loses credibility when the audience thinks of the messenger and not the message. Perception matters.

Chuka Umunna’s deliberately amateurish leader candidacy video, shakily shot in Swindon, was similarly unconvincing – if you make these efforts to avoid being seen as a slick London-centric metro type, why wear an expensive suit and silk tie for the recording? Visuals matter too.

Sometimes an experienced guiding hand is needed. I watched Brian May, an amazing musician, hold sway on BBC’s Question Time. When he spoke gently about needing a new form of political discourse and voting system, he sounded genuine and plausible.  But soon afterwards, when implicating that a referendum on fox hunting was just as important as one on EU membership, you began to question the point of his place on the panel. I got distracted by the messenger and his message (I forgave the hair – it’s been around a while).

The problem for politicians, business leaders and those with positions of responsibility in the public eye is that really all people want is natural honesty alongside some realism.  Say when you don’t know, opine on subjects you really do understand, apologise when you get it wrong,  but above all speak genuinely if you want to convince.

Here’s a thought, paraphrasing Mr Keating, perhaps some do say it best when they say nothing at all…

12 May 2015

Melanie Riley is quoted in an article by The Evening Standard on the extradition of David McIntyre following the Secretary of State’s refusal to reconsider her decision.

View full story

15 July 2013

Melanie Riley and Michael Caplan QC, Criminal Law Partner at Kingsley Napley LLP, discuss the benefits of attending a live trial rather than watching an edited broadcast of one, in an article by Solicitors Journal.

View full story

12 July 2013

Melanie Riley is quoted in an article by the Daily Telegraph on the US government’s agreement to negotiate with the Home Office and Ministry of Justice to allow more Britons to face trial in this country.

View full story

15 March 2012

Melanie Riley is quoted in an article by PR Week discussing how legal action against those on Twitter is likely to grow, if the individuals behind tweets are identifiable.

View full story

26 May 2011

Melanie Riley features in an article by PR Week on televising court trials.

View full story

5 October 2011

Melanie Riley talks to Russia Today about the UK government’s decision to adjourn Gary McKinnon’s hearing and reconsider the case for a UK trial.

View full interview

21 May 2010