The Times - UK (2020-12-03)

the times | Thursday December 3 2020 1GM 63

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thetimes.co.uk

In conversation

Malvika Jaganmohan

on managing mental

health as well as a

barrister’s caseload

thetimes.co.uk

As negotiators engage in a final round
of head-banging to nail down the big
issues in a post-Brexit relationship
between the UK and the EU, lawyers
are focused on their own sideshow.
Named after a town in Italian-speak-
ing Switzerland where the deal was
struck in 1988, the Lugano Convention
was never an element of the Brexit
debate that fired passionate rows
between Leavers and Remainers.
Yet lawyers point out that its provi-
sions for cross-border dispute resolu-
tion are critical and even more so in
the modern international commercial
world. Brexit puts the UK’s position in
the treaty under threat and within the
past few days the law societies in
England and Wales, Scotland and
Northern Ireland have combined with
City representatives to plead with
Charles Michel, the president of the EU
council, to allow the UK to remain part
of the Lugano club.
“It must be recognised that trade
across the channel will continue,” says
the joint letter, adding: “It is critical that
the legal status of these transactions
and contractual relationships is sound
and enforceable, regardless of the
terms of the underlying trade.”
Speaking as the letter was made
public, David Greene, the president of
the England and Wales society, pointed
to the practical benefits of the conven-
tion. “Lugano means that a consumer
in Germany who is let down by goods
sent from the UK — and vice versa —
will be able to seek redress in their local
court rather than having to raise multi-
ple legal cases in different jurisdic-
tions,” he said.
But Greene adds that the convention
was “much more than that”, saying that
it provides protection where one party
is deemed to be in a weaker position

than its opposition in litigation. And the

deal contains specific provisions for

employment, insurance and consumer

contracts, and maintenance orders.

“It therefore makes dispute resolu-

tion more accessible whether you are an

employee with a grievance, a consumer

let down by a goods or service provider,

or a parent trying to enforce a mainte-

nance order,” Greene says. “It is not

about the pre-eminence about one legal

jurisdiction over another — it is about

ordinary people, with ordinary budgets

being able to enforce their rights.”

City lawyers agree, claiming that

under the various updates to Lugano,

businesses have been able to rely on

a European regime of civil judicial co-

operation, which has ensured that dis-

putes are heard by the court the parties

choose and that enforcement of rulings

is seamless across member state

boundaries. But, as Paul Chaplin at

Hogan Lovells points out, from the new

year “that regime will no longer apply

to the UK. “This means that an English

judgment will have the same status in

an EU member state as a judgment

from, for example, a New York court,”

he explains.

Joining the Lugano Convention as an

independent state “would be the obvi-

ous way for the UK to maintain the

status quo”, says Richard Dickman at

Pinsent Masons. He describes that

tactic as an “off-the-shelf solution”,

which is why the UK government, with

the support of the countries in the

European Free Trade Association, has

applied to join Lugano. “Whether the

EU will agree remains to be seen, but it

is, on any view, now too late for the UK

to join Lugano immediately following

the end of the transition period.”

Hugh Mercer, QC, of Essex Court

Chambers is the Bar Council’s Brexit

expert. He argues that Brussels may be

misplaying its hand over Lugano. He

The Queen’s
Counsel Official
Lawyers’
Handbook,
Biteback, £14.99

AFP/GETTY IMAGES

Lawyer of the week Oliver Studdert

Oliver Studdert, a partner at Irwin

Mitchell, acted for Article 39, a

children’s rights charity, in the Court

of Appeal. The court ruled

unanimously that the education

secretary acted unlawfully in

scrapping 65 safeguards for

children in care without

consulting the children’s

commissioner for England

and children’s rights

organisations.

What were the main

issues in this case?

Gavin Williamson’s

introduction in April of

regulations overnight that

made “substantial and

wide-ranging changes”

— including to

timescales for social worker visits to

children in care — involved informal

consultation over a number of weeks,

but on a one-sided basis.

What is the best decision you have

taken? To follow my heart into

public law, representing people

facing personal challenges.

I see what a life-changing

difference the law can make.

Who has inspired you?

At university I studied the

anti-Nazi activist Sophie

Scholl who, with her brother

and friends, formed

the White Rose

resistance group.

She never

stopped fighting

for what she believed in and paid with

her life.

What is the funniest thing that has

happened to you in the law? Visiting

an elderly client in a care home, a

carer asked if I’d prefer she got me

a seat to sit on as opposed to my

client’s commode.

What is the best advice you have

received? A barrister once told me:

“If you know you’re right, never give

up.” Early in my career I was refused

permission in a judicial review on the

basis that it lacked merit. We lost in

the Court of Appeal, but the House

of Lords unanimously allowed the

appeal. I’ve lived by that ever since

— other than at home where my

children are always right.

Which three qualities should

a lawyer have? Being tenacious

and positive are key. Being

surrounded by fantastic colleagues

keeps me passionate.

What law would you enact?

One that supports those leaving

care to transition from care

when they are actually ready to

do so.

How would you like to be

remembered? As someone who

fought for the rights of those in

need, loved his family and was

passionate about Brentford FC

and mediocre football.

Linda Tsang

[email protected]

Queen’s

Counsel

Alex

Steuart

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thetimes.co.uk

A Brexit plea: don’t kick us out

It is too late for the UK to join the Lugano Convention immediately after Brexit

points out that whatever rules are in

place after Brexit, there will be trade

because the EU is by far the UK’s big-

gest trading partner. “There are likely

to be more disputes as people unravel

who is contractually responsible for

delays in shipments and new tariffs on

imports,” he says. “So the EU’s use of the

Lugano issue as a bargaining chip in the

trade negotiations is a significant own

goal so far as EU citizens and its smaller

businesses are concerned.”

Mercer says that the position of

Brussels appears to be based on the idea

that the London commercial court

lures a significant amount of inter-

national litigants — and EU countries

would like to increase legal business in

their home jurisdiction by opening

English language commercial courts.

“The problem is that that argument is

about big business which is not touched

anyway,” he says. “The big losers here in

addition to EU/UK citizens are EU and

UK small and medium-sized business-

es, which often take limited legal advice

and need clear rules of law on what

happens in case of dispute.”

Despite the flurry from the law socie-

ties over Lugano, some lawyers main-

tain that it will not be disastrous if the

convention disappears from the UK’s

legal landscape. “The absence of Lu-

gano won’t be an issue where a contract

contains an exclusive English jurisdic-

tion clause if that is entered into from

January 1,” says Anna Pertoldi, a part-

ner at Herbert Smith Freehills.

She says that in that case the 2005

Hague convention on choice of court

agreements will apply, so UK judg-

ments will be enforced in the EU in a

similar way to now. It is possible, she

adds, that the Hague provisions will

apply even where the clause was en-

tered into before the beginning of next

year, but she acknowledges that “there

is some uncertainty over that”.

Jonathan Ames
Wit of the

one of a kind

The announcement on Tuesday

of the death of Lord Kerr of

Tonaghmore, who retired only

two months ago after 11 years as a

Supreme Court judge, reminded

us of what a charmingly modest

and witty chap he was. As well as

being the representative on the

court from Northern Ireland, Lord

Kerr brought another element

of diversity to the elite bench.

He told Justice, the law reform

charity, in an interview in 2014,

that he was regularly introduced

at conferences as “the only justice

who hasn’t gone to Oxbridge”.

At which point, Lord Kerr said:

“I usually issue a gentle correction:

I’m the only justice who has the

great good fortune to be educated

at Queen’s University, Belfast.”

Pecking order

With Covid vaccines suddenly

behaving like buses, trundling

along in threes, there is much

speculation over who should be

front of the queue for jabs. In a

briefing to reporters, the lord chief

justice, Lord Burnett of Maldon,

resisted the temptation to suggest

that judges and even lawyers

should be in poll position.

“Keeping the courts going is an

important matter,” he agreed, but

added: “Being quite blunt about it,

I can think of groups who would

have a better call for priority.

NHS workers, for example; care

workers in homes looking after

the elderly and disabled.”

By the book

Two large corporate law practices

seen to be doing the right thing

are Burges Salmon and Herbert

Smith Freehills. Bristolian Burges

Salmon announced this week that

its partners will repay furlough

cash to the Treasury. Roger Bull,

the managing partner, said: “As we

are in a better position than we

anticipated, we are pleased to be

able to repay it.”

In the City, Herbert Smith

Freehills, the Anglo-Australian

giant, said that it would make

“net-zero” carbon emissions by

the start of the next decade, to be

independently verified by the

Science Based Targets Initiative,

operated by the UN and others.

Needing instruction

Suella Braverman, QC, took a lot

of heat for being inexperienced

before she was promoted to

attorney-general, the government’s

senior law officer. That has not

stopped her from leading in

person in the Court of Appeal as

the government appeals against

the sentences handed down in the

killing of PC Andrew Harper. Our

court spy confirms that she is not

very much at home in the Royal

Courts of Justice, because she

was overheard asking where the

female barristers’ robing room was.

OUT OF COURT

The cases, the chatter, the chaos:

what’s really going on in the law