Central London Lawyer August 2024

It's Getting Hot In Here: Let's Talk About Climate Law

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MEDIA No. 2053

PUBLISHED

Summer 2024 © Benham Publishing Ltd.

LEGAL NOTICE

© Benham Publishing Limited.

None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

DISCLAIMER

All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COVER INFORMATION

Photo: Mohammed Nohassi @Unsplash.com

25th October 2024

For the Winter 2024 edition

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Editorial

Members wishing to submit editorial please send to:

Editor in Chief: Kene Onyeka Allison. Editorial Board: Anamitra Mukhopadhyay, Anita Winsome, Sarah Bradd and Emma Webb

dyedurham.co.uk

The President’s Foreword

AUGUST 2024

Iwant to start by thanking everyone who attended our summer drinks. What a fabulous night. Cold drinks, great company, and more food and cake that we could imagine. It was an opportunity to welcome new members and potential new members, and to welcome in the summer. Now we look to future events.

We want to provide a safe and encouraging place for our Junior Lawyers Division (JLD) members to ask the questions of more senior members, and volunteers. So, we are keen to arrange a speed mentoring event. Would you be interested in attending?

Potential comedy club night out – If we have time before the House of Lords dinner, and our AGM, we would like to organize an event where we can go out and have a laugh. Would you be interested in coming out for a comedy night?

Our black-tie dinner will take place at the House of Lords of Thursday 3 October. I am delighted to confirm that the Right Honourable, The Lord Dubs, has agreed to address us in the evening. We are greatly honoured and I am looking forward to hearing his words of wisdom. To add further value

Climate change is one of the biggest issues facing our global community.

As a result, the law is now grappling with the impacts of climate change in many diverse areas.

Thank you to the Westminster and Holborn Law Society for providing the opportunity to speak about these developments on a topic which impacts lawyers across the entire profession 

for our members, we are also in discussions with potential sponsors for the House of Lords dinner and I hope to make an announcement regarding that shortly.

Our AGM will also take place in October – the date is to be confirmed and announcements will be sent in due course. Our AGM is when we present key information to our members, and also present our annual proposals for a new board. It is also the opportunity for our new President to present their vision of what they aim to achieve in the coming year. All members are encouraged to attend and to take part. We really value your input, and we have several vacancies on our committees which are a great way to contribute and provide excellent development opportunities. I encourage you to get involved.

Thank you. 

Phil Henson President Westminster & Holborn Law Society

Riley Forson Guest Editor Associate, Litigation and Dispute Resolution Macfarlanes LLP

Phil Henson

WHLS OFFICERS

Philip Henson President

Philip Henson is a Partner and the Head of Employment at ebl miller rosenfalck. He, and their growing team of employment lawyers at the firm, represent employers and senior executives. He is a Council Member of the Law Society of England and Wales.

Outside of a busy work and active family life, Phil also produces award winning short films. He has recently finished a script for a dark comedy called Viking Funeral which is in pre-production. He is also a jury member of the British Short Film awards, and is also developing several children’s story books which are at various stages of development.

Nicola Wainwright Vice President

Nicola Wainwright is a specialist clinical negligence solicitor with more than 20 years’ experience. She is a Partner and Head of Clinical Negligence-London at JMW Solicitors LLP. Nicola specialises exclusively in clinical negligence claims for patients arising from medical treatment that has gone wrong, or from a failure to provide medical treatment. She has expertise in a wide range of claims, but particularly those that are complex or that result in severe, life changing injuries.

Nicola has been ranked in Chambers & Partners legal directory for 14 years and has been described as a ‘highly experienced lawyer who achieves great results’ for clients. Clients describe her as ‘incredibly empathetic and understanding’ and as ‘having great communication skills’. Nicola qualified as a solicitor in 1997 after training with Pictons. She specialised in personal injury and clinical negligence at Davies & Partners, Birmingham before joining Leigh Day in 2000, since when she has specialised exclusively in clinical negligence. She was at Leigh Day for 20 years before joining JMW.

Nicola is a member of the Law Society Clinical Negligence Accreditation Panel and an Association of Personal Injury (APIL) Senior Litigator. Nicola sits on the Westminster & Holborn Law Society CSR and Pro-Bono Committee. She is also a member of FOCIS (Forum of Complex Injury Solicitors), and the Association of Women Solicitors, London (AWSL).

Suzanna Eames Deputy Vice President

Suzanne is an Associate at Farrer & Co specialising in a broad range of private family law matters, including divorce, complex financial remedy cases, children matters, financial claims to support a child, jurisdictional disputes and pre-nuptial agreements. Suzanna was previously DVP of WHLS in 2020/2021 and is looking forward to getting stuck back into the Society again. In 2021 – 2022, Suzanna was the Chair of the Junior Lawyers Division of the Law Society.

Kene Onyeka Allison Editor in Chief

Kene is an in-house solicitor at Mizuho International plc, a Japanese investment bank. She is dual-qualified in England & Wales and Nigeria. Her areas of specialisation are Debt Capital Markets and Derivatives. She volunteers in different capacities with different organisations with the aim of improving ethnic and minority diversity.

Nicola Rubbert Immediate Past President

Nicola qualified as a solicitor in 2013 with a boutique firm in the City that specialised in advising Japanese corporate clients. She has experience in-house and in private practice, focussing on employment, data protection and commercial law. Nicola is a Council Member of The Law Society of England & Wales, representing the constituency of City of Westminster and a member (and former Chair) of Westminster & Holborn Law Society’s Education & Training Committee. She is also a former Chair of London Young Lawyers Group, a Liveryman of The City of London Solicitors’ Company and a Freeman of the City of London.

WHLS EDITORIAL TEAM

Kene Onyeka Allison

Kene is an in-house solicitor at Mizuho International plc, a Japanese investment bank. She is dual-qualified in England & Wales and Nigeria. Her areas of specialisation are Debt Capital Markets and Derivatives. She volunteers in different capacities with different organisations with the aim of improving ethnic and minority diversity.

Sarah Bradd

Sarah is a current trainee at Charles Russell Speechlys and has been a member of CWHLS since 2019. She enjoys contributing to the Central London Lawyer magazine and assisting the editorial team. In her free time, Sarah enjoys going on holiday to explore new places, eating at restaurants and watching films at the cinema.

Anamitra Mukhopadhyay

Anamitra is a solicitor within JMW Solicitors LLP’s Commercial Litigation and IP departments. Anamitra advises clients across various sectors on a variety of matters including IP infringement issues, contractual breaches and civil fraud. Prior to entering the world of law, Anamitra completed a History degree and has a passion for the subject. Aside from History, Anamitra’s other love in life is music. She is a keen singer and enjoys performing.

Anita Winsome

Anita is an LLM student specialising in Comparative & International Dispute Resolution at Queen Mary University of London. Her interests include domestic & international arbitration, competition law and intellectual property rights. She is a qualified lawyer in India and is a licensed member of the Bar Council. Her favourite pastime activity includes exploring the beautiful cafes, museums or the parks at South Kensington.

Emma Webb

Emma Webb is a recent first class LLB Graduate and Editorial Assistant. Emma is embarking on a career in the legal and media industry. Currently, she serves as a Communications Executive for Small Business Britain and an Editorial Assistant at Legal Women Magazine where she combines her passion for law and her talent for communication.

MEMBERSHIP

About Us

The Westminster & Holborn Law Society is a vibrant, diverse and welcoming organisation representing approximately 20,000 solicitors and legal professionals across Westminster, Holborn and Central London.

Our Society is an ideal forum for local and international networking with a variety of professional development, networking and social events. Our annual black tie dinner at the House of Lords is one of the highlights. Our Society’s magazine, Central London Lawyer, keeps members up-to-date with the latest legal developments, and we welcome contributions from our membership.

What sets us apart from other societies is our strong links to regional and influential international legal organisations. We are a part of the Fédération des Barreaux d’Europe (FBE) and are twinned with the Paris, Berlin, Milan, Barcelona, Palermo, Krakow and Cluj-Napoca bar associations, among others. We also have long standing informal associations with other respected legal organisations internationally.

Membership is the cornerstone of our Society and all members have a vital role to play. There are many opportunities to get involved and we hope you will join us!

Membership Benefits

• Being part of an inclusive and active law society with links to, and events with, regional and international legal organisations, including membership in the Fédération des Barreaux d'Europe (FBE).

• Numerous educational and social networking events, including updates on important legal and practice developments.

• Reduced price attendance for members at Society events.

• Free subscription to the Society's quarterly magazine, Central London Lawyer, and the opportunity to contribute articles to showcase your legal expertise and promote issues important to you.

• An opportunity to develop leadership skills through involvement in our subcommittees and to comment on, and influence, law reform and legal developments on behalf of our members.

• Promotion of members' achievements in our magazine and through our social media.

• A Junior Lawyers' Division (JLD), with membership open to trainee solicitors and other junior lawyers, law students, barristers and pupils.

• Welcome reception for new members.

• Opportunity to apply for the Rising Star Award open to newly qualified solicitors.

• A voice on the national Law Society's Council through the election of local Council members.

• Invitations to prestigious events with other law Societies and legal organisations across London, Europe and internationally.

For membership enquiries, please contact our Membership Chair Joanne Skolnick at cwhlawsoc@gmail.com

To join our Society, please fill out the membership form on our website at https://www.cwhls.org.uk/ We look forward to seeing you soon! 

International Committee Twinning with Cluj Napoco in Romania

We had a fantastic trip to the second largest city in Romania to sign a twinning agreement. WHLS first met Calin Iuga from this Bar Association through the Federation of European Bar Associations (www.FBE.org) and have been developing this link for some years. Calin and a group of his colleagues visited London pre -pandemic when we arranged legal interest trips and talks in and around central London.

2024 was the turn of London WHLS members to visit. Coral Hill and Sara Chandler, Chair and Vice Chair of the International Committee attended together with members, Gillian Fielden, Remus Robu and Maria-Larisa Lancu.

A twinning agreement was signed and gifts duly exchanged. The beautiful painting of Cluj Napoco was presented to our committee and it will be hung in the offices of Dawson Cornwell, who regularly support our evening events.

The theme of the event was to provide an insight to the artistic world of Cluj Napoco and to reflect and discuss the importance of human rights and justice are for the arts. This was particularly relevant as many artists had felt unable to express themselves during the time of Ceausescu. We had a range of talks from artists on this topic and heard about initiatives in Romania. We had a historical walk through the city which included visiting the sculpture in memory of the people shot in the Square in 1989. We visited the national theatre and saw an excellent performance of Twelve Angry Men

The Bar Association also emphasized the creativity of its lawyers by holding an art exhibition displaying work from its members as well as books, poetry and photographs We also were able to enjoy the huge variety of excellent food and wine available. This included a wonderful gala dinner where we were able to hear from opera singers and some contemporary singers. The final evening we dined with traditional Romanian music and dancing. We even joined in for some of it!

All the members of the Bar Association were incredibly welcoming and keen to maintain links. We will ensure we arrange a trip to London next year and hope as many members as possible come to meet them. 

WHLS Success at the 31st Annual Willem C. Vis International Commercial Arbitration Moot

This March, numerous members of the WHLS participated both as competitors and as arbitrators at the Willem C. Vis International Commercial Arbitration Moot, the highly prestigious mooting competition held annually in Vienna. It is a “grand slam” moot, attracting 365 different teams from around the world. Simply being able to complete both in the written and oral rounds of the competition is a tremendous achievement. This is why it is informally called the “Olympics for law students”.

My team from the University of Law at Bloomsbury successfully competed in the two written rounds, and in four rounds of oral arguments against universities from Italy, Mexico, Canada, and Bulgaria. Our panel of three arbitrators in each round consisted of academics, judges, and practitioners from Pakistan, Canada, Austria, Saudi Arabia, Denmark, the USA, Germany, Brazil, and Switzerland. We also had the privilege of having a WHLS member as an arbitrator in our first oral round.

The Vis Moot is not only designed as a competition, but as a forum to foster cross border ties between national legal systems. Within the competition, there is an emphasis on placing common law teams against ones from civil law jurisdictions. As a member of the international committee, my participation at Vis allowed me to start building bridges with members from similar regional law societies and bar associations.

In addition, WHLS members participated in a series of workshops and conferences related to ADR at the Vienna offices of a variety of international law firms. I had the privilege of attending a workshop at Baker McKenzie

on disability inclusion in arbitration. In this workshop, participants were asked to make judgement calls on a variety of disability related scenarios pursuant to ICC rules.

Finally, our team had the difficult task of not only being representative of both our university and the UK, but also the host country of Austria.

In September 2020 I became one of the first individuals in Canada to have their Austrian citizenship restored as a grandchild of Holocaust survivors who fled Vienna in 1939. This made our participation at Vis incredibly important for the country’s efforts to re-integrate the descendants of victims of National Socialism into the Austrian legal system.

It was a wonderful yet surreal feeling to be competing against American, Canadian, and British participants as an “Austrian.” Legally speaking, we were a home team in Vienna. Participants treated us like locals, and continuously asked us for directions, things to do, and even how to use the Vienna tram system.

In the future, it would be wonderful if more WHLS members participate in the Vis moot either as competitors or as arbitrators. It is an invaluable experience for anyone interested in alternative dispute resolution. 

Wildon Rutherford Kaplan

WHLS International Committee Member

Polish Advocates and the Advocate Bear visited London

In May 2024, the International Committee of the Westminster and Holborn Law Society hosted a visit of advocates from the Pomeranian Bar Association, Poland. Aleksandra Kowalska, a member of the WHLS International Committee and the Committee for International Relations and Human Rights of the Pomeranian Bar Association hosted the visit and organised a number of activities for the guests.

The lawyers' trip was intended to strengthen ties and discuss cooperation with English lawyers and to introduce the educational project of the Polish Bar ‘Advocate Bear’ to Polish children living in London.

The visit was a joint initiative of two Committees of the Pomeranian Bar - the Committee for Education and the Committee for International Relations.

Lawyers visited two Polish schools and gave four presentations to over 200 Polish children living in London. They spoke about the legal profession, students’ rights, online hate and cyberbullying. The children also had an opportunity to take a photo in a Polish advocate’s gown.

The lawyers visited the Law Society, Royal Courts of Justice and the Inns of Court. The Advocate Bear also had a chance to meet the President of WHLS Phil Henson. Advocates visited East European Resource Centre, a charity providing help and support to vulnerable migrants from Central and Eastern Europe and discussed the challenges migrants face when they move abroad. Lawyers left some gifts for the children: teddy bears, puzzles and colouring books donated by the Polish Bar Association.

The Pomeranian Bar Association has a lot of interest in international cooperation and educational projects abroad. Alex has recently visited Poland to attend the ‘Advocate’s Day’ - an event for students interested in the legal profession and spoke about the legal professions in England and Wales to an audience of 500 students. The legal attire, a wig in particular, generated quite a lot of interest amongst students.

We are already planning the next visit of Pomeranian Advocates and working on strengthening the relationship. Advocate Bear is still resting after the trip, but he will be ready to travel again soon. 

Aleksandra Kowalska Legal Counsel for East European Resource Centre

The nexus between employment law and climate change should be granted greater attention by employers, lawyers and HR professionals. Just as the climate crisis is vast and complex, its effects are being felt across the global workforce. When looking at climate change through the lens of employment law, we must recognise how it affects the individual worker at a base level, expanding outwards to influence entire industries. Employers must be alive to the risks and opportunities that climate change presents if they are to remain an employer of choice.

The just transition

Few employment laws in the UK require employers to take account of the climate crisis, but the regulatory landscape is shifting. At a global level, courts are starting to incorporate international standards (such as the United Nations Guiding Principles on Business and Human Rights) into the duty of care of businesses, drawing significant links between human rights and climate change. The people impact of climate change and sustainability practice is something that must be taken account of at board level within business. It is also of significant interest to HR professionals and legal advisers.

Crucially for workforces, we are at a stage where a just transition towards a green society has taken on increased political and societal significance. The term just transition refers to a framework which was developed to secure workers' rights and livelihoods within shifting economies, gaining momentum in recent years especially in the context of climate change. It aims to avoid trade-offs between the human right to work and the human right to a healthy environment.

In 'The Global Risks Report 2024', the World Economic Forum identified extreme weather events to be the top risk most likely to present a material crisis on a global scale in 2024, with AI-generated misinformation and disinformation and societal and/or political polarisation following in second and third place. This is a risk to industries and individual workers. As water levels rise and weather events become more extreme, the physical impact on employees, including on their livelihoods and health, will only expand. Some areas of work are likely to see a growth in recruitment, for example renewables, but other industries are facing unnerving job insecurity due to energy transitions and weather changes. Employers must stay mindful of these changes and boards should consider the effects on employment as it looks to address the wider just transition.

As climate change impacts people, it impacts the global workforce. In October 2021, the UN Human Rights Council recognised that access to a healthy and sustainable environment is a universal right. This is relevant when we consider how the climate crisis is likely to affect the health and safety landscape of workplaces. Experts writing for the European Respiratory Journal editorial last year advised that high temperatures and changing weather patterns are likely to exacerbate lung health problems, adding that the climate crisis and human health had become interlinked and "irreversible". Both the World Health Organisation and the Intergovernmental Panel on Climate Change (IPCC) have also recognised the serious risks to mental health and well-being that climate change poses, including a higher likelihood of anxiety, depression and grief. Employers have a duty of care to their employees, which covers both physical and mental health. As part of its wider duty of care and overall risk assessment, businesses spanning multiple locations are likely to consider the long-term future of offices which are more vulnerable to extreme weather events, including flooding or high temperatures. This is operationally significant, but ultimately extreme weather risk drills down to the livelihoods and wellbeing of individual staff.

Employment law and climate change: the developing legal landscape

Workforce risk

Employee demand with regards to climate and sustainability has presented a range of employment law issues for in-house legal teams and HR professionals. With a greater number of employees taking a more activist approach in this space, climate commitments are being scrutinised and employers are facing greater employment law risk.

In the UK, climate-related whistleblowing issues are emerging as employees have the legal right to 'blow the whistle' if they disclose information which shows, in their reasonable belief, that "the environment has been, is being or is likely to be damaged." Whistleblowing charity Protect found that only 36% of workers in the UK last year believed they could be protected under whistleblowing law if they raised environmental issues, but this number is expected to rise as awareness and interest in climate change grows. There is also a good basis in the UK for arguing that strong views on the environment may be protected under section 10 of the Equality Act 2010: Religion or Belief. This understanding was supported by the landmark EAT case Grainger v Nicholson in 2010. It is unclear whether a lack of belief in climate change could also be protected, but an argument could be made for this under the legislation. Instances of environmental whistleblowing are more likely in the UK as opposed to claims from employees of discrimination based on a belief in climate change. But employers should be aware of both risks as the legal landscape continues to develop.

Workforce engagement

Climate change also presents an opportunity for employers to get ahead of the curve when it comes to matters of sustainability and internal procedure. A key challenge for HR professionals in developing internal policies and practices is getting the workforce on board, particularly when that workforce will represent a range of views and personal circumstances. But if businesses are to realise their sustainability and climate-related ambitions they must effectively engage their employees.

Employers wishing to implement internal change regarding climate and sustainability can take various steps, including (i) considering greenhouse gas emissions as part of a travel/expenses policy, (ii) embedding climate change considerations such as training or incentives into employment contracts, or (iii) examine occupations pension scheme climate risk and responsibility. Employers should clarify and consult their workforce on procedural changes if they are to bring them on board, especially any employees who may be more sceptical about climate change.

What is clear is that the climate crisis looks set to become one of the most important drivers for corporate change in coming years. Businesses are under intense scrutiny to adapt to a changing world with a future-focused lens, ensuring that their business models and service-offerings will remain sustainable in the coming decades. This is why it is crucial for employers to consider these issues as part of their wider corporate planning if they are to both mitigate the associated risks and better realise their ambitions to become a responsible business.■

Author Charis Fergusson Associate – DLA Piper UK LLP (Birmingham)

Second co-author:

Jonathan Exten-Wright Partner – DLA Piper UK (London)

Charis Fergusson Jonathan Exten-Wright

Green policies of New Labour

Labour's landslide victory in the 2024 general election has ushered in a new era of political and legal change for the UK, especially on the issues of climate and sustainability.

Green policies of New Labour

a. Wind energy

One of the first and most significant steps that Labour has taken is to lift the de facto ban on new onshore wind farms in England, which was imposed by the previous Conservative government in 2015.

Labour is revising the planning policy to place onshore wind on the same footing as other energy development in the National Planning Policy Framework (NPPF), and has also announced that it will consult on whether to bring large wind farms back into the Nationally Significant Infrastructure Projects regime, meaning that the Secretary of State for Energy Security and Net Zero (Ed Miliband) would have sign off, keeping the decision on large developments at a national rather than local level. As Rachel Reeves noted in her first speech as Chancellor, the Secretaries of State for Transport and Energy Security and Net Zero should prioritise decisions on infrastructure projects that have been sitting unresolved for too long. This policy change reflects Labour's commitment to doubling onshore wind energy by 2030, and is expected to boost renewable energy generation, create jobs, and reduce energy bills and emissions.

However, it also raises some legal challenges and opportunities for developers, local authorities, communities, and environmental groups, who will have to navigate the new planning regime and its implications for local democracy, environmental impact assessment, and community benefits.

b. Industrial decarbonisation

Another major policy area that Labour has focused on is industrial decarbonisation, which is seen as a key driver for economic growth, regional development and green jobs.

Labour has allocated £7.3 billion through a new National Wealth Fund (NWF) to invest in ports, green hydrogen, green steel, industrial clusters and gigafactories, with the aim of attracting at least £3 of private sector funding for every £1 of public sector investment.

Labour has pledged to establish a new publicly owned clean power company, Great British Energy (GBE), with an initial investment of £8.3 billion to fund renewable energy projects, support community energy schemes, and help scale up new low carbon technologies, such as floating offshore wind, tidal power and hydrogen. This is a key priority for the new government,

expected to be introduced via a new Energy Independence Bill. Unlike the Électricité de France SA (EDF, the French multinational electric utility company owned by the French government) it is intended to enter the market as a smaller player investing in clean energy projects, and not to re-nationalise the energy sector. Labour's broader objectives include transforming GBE into a major player akin to state-owned energy behemoths like Norway's Equinor, Denmark's Ørsted, or Sweden's Vattenfall. Despite being government-owned, these entities maintain autonomy in the market.

These initiatives are likely to create new legal frameworks and incentives for businesses to participate in the green industrial transition, as well as new obligations and standards to ensure alignment with the 1.5 degree Celsius goal of the Paris Agreement.

c. Nature and biodiversity

Labour has also made some important commitments on nature and biodiversity, which are often overlooked or side-lined in the climate debate. Labour has pledged to reverse the decline in biodiversity and natural habitats, by planting millions of trees, creating three new national forests and nine new national river walks, and ensuring that all new developments contribute to biodiversity net gain.

These policies will require new legislations and enforcement mechanisms which will implement - human rights, a healthy environment, hold UK companies accountable for environmental harm in the UK or overseas, and prevent countries from dumping lower-quality goods into the British markets.

They will also create new opportunities and challenges for businesses, NGOs, and communities to engage in nature-based solutions, environmental justice and green finance.

Conclusion

In conclusion, Labour's green transition agenda represents a radical and ambitious shift in the UK's climate and sustainability policy, which will have profound legal implications for businesses and society. Labour has already taken some bold and decisive actions to deliver on its promises, but it also faces some complex and contentious issues that will require careful balancing of interests, trade-offs, and compromises. The legal profession has a crucial role to play in supporting and scrutinising Labour's green transition, and ensuring that it is fair, effective, and inclusive. 

Alex Taylor Trainee and Macfarlanes LLP

Alex Taylor

A new era of Worker Power Employment law under a new Labour Government

Ageneral election will take place in England and Wales on 4 July 2024. It is seen as almost inevitable that a Labour government will replace the current Conservative government.

In this briefing note we take a look at what a Labour government means for employers, and how profound changes may be made to the workplace. These changes will require detailed consideration by employers, the creation of new policies, and training.

What does the Labour party stand for?

The Labour party has declared that they are “pro-worker and probusiness, and we will work in partnership with trade unions and business to deliver our New Deal”.

The Labour party says that: Labour’s plan to make work pay will ensure more people stay in work, make work more family-friendly and improve living standards, putting more money in working people’s pockets to spend, boosting economic growth, resilience and conditions for innovation. Stronger trade unions and collective bargaining will be key to tackling problems of insecurity, inequality, discrimination, enforcement and low pay.

How will the Labour party change employment law?

Labour’s manifesto confirms that a Labour government would implement Labour's Plan to Make Work Pay: Delivering a New Deal for Working People in full and that it will introduce legislation reforming employment law within 100 days of entering office.

Consultation documents for proposed changes could be published as soon as next month. It is widely expected, for example, that the Labour Party will publish an Employment Rights Bill, with the aim of creating a single enforcement body and/or removing the lower earnings limit on statutory sick pay.

Some of the most complicated aspects of the New Deal will take time to implement – such as the proposal to move towards a single status of worker. In the UK we have a three-tier system for employment status, with people classified as employees, selfemployed or ‘workers.’ This has led to workers finding it difficult to get a clear picture of where they sit and what protections they are owed.

Other changes will take place in the background. For example, it is also expected that Labour would ask the Low Pay Commission to update its remit to take into account the cost of living.

Key manifesto pledges

The Labour manifesto confirms that the Labour party intend to

• End ‘one sided’ flexibility to ensure all jobs provide a baseline level of security and predictability, by banning “exploitative” zerohour contracts, with a plan to ensure that everyone has the right to a contract which reflects that number of hours that they regularly work over a 12-week reference period. Also to ensure that workers are given reasonable notice of any changes in shifts.

• End fire and rehire, which is the practice of an employer making an employee redundant and then re-engaging them on reduced terms and conditions.

• Introduce basic day one rights to: Parental leave Sick pay protection from unfair dismissal strengthening the collective voice of workers, including through their trade unions, and creating a Single Enforcement Body.

A Labour government intends to make the following key changes

• Increase protections for pregnant women - Strengthen protections for pregnant women by making it unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances.

• Help carers - Helping more carers in the workplace to modernise the world of work, ensuring that there are good jobs for carers, and a skilled workforce for employers.

• Clarify bereavement leave - Clarify the law and entitlement, introducing the right to bereavement leave for all workers.

• Introduce the right to switch off - Bring in the ‘right to switch off’, so working from home does not result in homes turning into 24/7 offices. Labour will follow similar models to those that are already in place in Ireland and Belgium, giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.

• Review Surveillance - At a minimum, Labour will ensure that proposals to introduce surveillance technologies would be subject to consultation and negotiation, with a view to seeking the

Philip Henson

agreement of trade unions; or elected staff representatives where there is no trade union.

• Ban unpaid internships - Ban unpaid internships except when they are part of an education or training course.

• Strengthen SSP - Strengthen statutory sick pay, remove the lower earnings limit to make it available to all workers and remove the waiting period, and ensure the new system provides fair earnings replacement for people earning below the current rate of statutory sick pay.

• Reduce gender pay gap - Take action to reduce the gender pay gap.

• Strengthen protections from maternity and menopause discrimination and sexual harassment. Labour will require large employers with more than 250 employees to produce Menopause Action Plans, setting out how they will support employees through the menopause, much like gender pay gap action plans. In addition, they will publish guidance, including for small employers, on measures to consider relating to uniform and temperature, flexible working and recording menopause-related leave and absence.

• Strengthen redundancy rights - Strengthen redundancy rights and protections, for example by ensuring the right to redundancy consultation is determined by the number of people impacted across the business rather than in one workplace.

• Increase Whistleblower protections - Strengthen protections for whistleblowers including by updating protections for women who report sexual harassment at work.

• Introduce a new Race Equality Act - Introduce a Race Equality Act to address equal pay, strengthen protections against dual discrimination and "root out other racial inequalities".

• Introduce ethnicity pay gap reporting - Introduce ethnicity pay gap reporting for large employers.

• Champion Disabled people - Champion the rights of disabled people by introducing "the full right to equal pay for disabled people", and require large employers to report on their disability pay gap.

• Increase Trade Union recognition - Simplify the process of union recognition and the law around statutory recognition thresholds, so that working people have a meaningful right to organise through trade unions.

• Introduce a duty to inform new employees of right to join a Union - Introduce a new duty on employers to inform all new employees of their right to join a union, and to inform all staff of this on a regular basis.

• Introduce requirement to provide sufficient facilities for trade union reps - Labour will ensure there is sufficient facilities time for all trade union reps so that they have capacity to represent and defend workers, negotiate with employers and conduct training.

• Ensure workers with Terminal Illnesses are treated with respect - Labour encourages employers and trade unions to negotiate signing up to the Dying To Work Charter – a charter with best practice for employing workers with terminal illness, and

we will work with trade unions and others to ensure that workers diagnosed with a terminal illness are treated with respect, dignity and supported at work.

• Introduce a new Socioeconomic duty - Labour will enact the socioeconomic duty under Section 1 of the Equality Act. The socioeconomic duty will apply to public bodies.

• Ensure fair tips - Labour will strengthen the law to ensure hospitality workers receive their tips in full and workers decide how tips are allocated.

• Introduce collective grievances - Labour will make it easier for workers to raise grievances about conduct at work. Labour will enable employees to collectively raise grievances about conduct in their place of work, to ACAS. This will be in line with the existing code for individual grievances.

• Extend of Freedom of Information Act - Extend the Freedom of Information Act to apply to private companies that hold contracts to provide public services, exclusively with regard to information relevant to those contracts, to ensure any outsourced contracts are transparent and accountable for delivery. 

For further information and advice please contact:

Philip Henson Partner EBL Miller Rosenfalck

ANALYSIS

SPECIALISTS IN THE ANALYSIS OF ROAD TRAFFIC COLLISIONS

Providing tailored solutions for the investigation of incidents involving road users of all types

IBetween a rock and a hard place: The chilling effect of “anti-ESG” litigation

n 2015, the then Bank of England Governor Mark Carney gave a landmark speech at Lloyd’s of London, warning of the “catastrophic” impacts of climate change on global financial stability.1

Climate change has been gradually rising up the agendas of regulators and corporations since then. New regulation have been introduced across the globe which require companies to take climate-related action, for example:

- Germany’s Act on Corporate Due Diligence Obligations in Supply Chains, which came into effect on 1 January 2023, requires in-scope companies to undertake environmental due diligence in their supply chain;

- The Vermont “Climate Superfund Act”, passed in May 2024, will require fossil fuel companies responsible for emitting a certain level of greenhouse gas (GHG) emissions in the state to pay into a fund which provides funding for climate change adaptive or resilience infrastructure projects in Vermont;2 and

- The EU’s Corporate Sustainability Due Diligence Directive (CS3D), which was published in the EU Journal on 5 July 2024, will require in-scope companies to prepare transition plans for climate change mitigation once it is transposed into national legislation.3

However, the “anti-ESG movement” has also been building, which pushes back against this regulation (‘ESG’ refers ‘environmental, social and governance’ considerations, which includes climate issues). It is centred in the US, and is led by Republican states with support from oil and gas majors, as well as lobbying groups.

These organisations have deep pockets and are not afraid to oppose proclimate policies in the courts, in lengthy legal battles. The number of such cases, categorised as “non-climate-aligned cases” by LSE’s Grantham Research Institute in their ‘Global trends in climate change litigation: 2024 snapshot’ report, is increasing in the US.4 At the same time, regulators are also being criticised for not doing enough on climate change: they are ‘stuck between a rock and a hard place’.

A striking illustration of this is the issuance of the US Securities and Exchange Commission’s (SEC) climate change disclosure rule, ‘The Enhancement and Standardization of Climate-Related Disclosures for Investors’.5 The final rule, published on 6 March 2024, will require public companies to disclose climate-related risks that have materially impacted, or are reasonably likely to have a material impact on the company’s business strategy, results of operations, or financial condition.

Finalisation of this rule took some time, after a draft was first published in March 2022. Its scope has also been reduced – for example, the SEC initially proposed to require disclosure of Scope 3 emissions (which refers to the emissions a company is indirectly responsible for, up and

down its value chain, including suppliers and consumers) but dropped this requirement after substantial criticism, for example from SEC Commissioner Hester M. Peirce.6

Nevertheless, even after the rule was watered down, the SEC has faced significant challenge for going too far: on the same day it was published, 10 Republican states issued a petition for its review, arguing that the new rule “exceeds the SEC’s statutory authority and otherwise is arbitrary, capricious, an abuse of discretion, and not in accordance with law”.7 Energy suppliers Liberty Energy Inc and Nomad Proppant Services LLC also issued a petition on 6 March 2024,8 and other Republican states and lobby groups followed suit throughout March.9

Meanwhile, environmental groups have challenged the SEC on the basis that it “needs to do much more”:10 the Natural Resources Defense Council issued a petition against the rule on 12 March 2024,11 and the Sierra Club did the same on 13 March 2024.12 While these two organisations have now withdrawn their petitions, they will focus their attention on advocating for better investor protections outside of court.13 The remaining claims have been consolidated and will be heard by the St. Louis-based Eighth Circuit Court of Appeals.14

This position between a ‘rock’ (those who criticise the SEC for going too far) and a ‘hard place’ (those who say the SEC does not go far enough on climate change) leaves the regulator in a state of paralysis. The SEC has voluntarily stayed the application of its climate disclosure rule indefinitely while a decision from the Eighth Circuit Court of Appeals is pending,15 and will likely be increasingly hesitant to introduce any additional climate-related regulation for fear of facing costly lawsuits.

The consequent uncertainty about whether and how the rule will apply is making it very difficult for businesses to prepare for change. The chilling effect of anti-ESG litigation in the US is therefore twofold: regulators appear hesitant to introduce regulation, and there is likely to be a slowdown in corporate climate action while companies navigate the uncertainty.

There are some indications that the anti-ESG movement is picking up in the EU and UK. For example, the scope of the EU’s CS3D had to be watered down substantially before it could be agreed on by Member States, after criticism from some governments and businesses in the EU that it went too far. Nevertheless, it remains to be seen whether the trend for anti-ESG litigation will spread from the US across the pond to the EU and UK. ■

Catríona Campbell

Associate, Clyde & Co.

(1) Mark Carney, Governor of the Bank of England, ‘Breaking the tragedy of the horizon’ (Speech at Lloyd’s of London, 29 September 2015) https://www.bankofengland.co.uk/-/media/boe/files/speech/2015/ breaking-the-tragedy-of-the-horizon-climate-change-and-financial-stability.pdf

(2) https://legislature.vermont.gov/Documents/2024/Docs/ACTS/ACT122/ACT122%20As%20Enacted.pdf

(3) Article 22 of CS3D

(4) Joana Setzer and Catherine Higham, ‘Global trends in climate change litigation: 2024 snapshot’ (Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science, June 2024) 41, 52 https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2024/06/Global-trends-in-climate-change-litigation-2024-snapshot.pdf

(5) https://www.federalregister.gov/documents/2024/03/28/2024-05137/the-enhancement-and-standardization-of-climate-related-disclosures-for-investors

(6) Commissioner Hester M. Peirce, ‘We are not the securities and environment commission - At least not yet’ (US Securities and Exchange Commission, 21 March 2022) https://www.sec.gov/newsroom/ speeches-statements/peirce-climate-disclosure-20220321

(7) State of West Virginia et al v SEC, case number 24-10679, US Court of Appeals for the Eleventh Circuit

(8) Liberty Energy et al v SEC, case number 24-60109, US Court of Appeals for the Fifth Circuit

(9) State of Iowa et al v SEC, case number 24-1522, US Court of Appeals for the Eighth Circuit; Texas Alliance of Energy Producers et al v SEC, case number 24-60109, US Court of Appeals for the Fifth Circuit; Ohio Bureau of Workers’ Compensation et al v SEC, case number 24-3220, US Court of Appeals for the Sixth Circuit; State of Louisiana et al v SEC, case number 24-60109, US Court of Appeals for the Fifth Circuit; Chamber of Commerce of the United States of America et al v SEC, case number 24-60109, US Court of Appeals for the Fifth Circuit

(10) ‘SEC financial disclosure rule is good for investors’ (Natural Resources Defense Council, 6 March 2024) https://www.nrdc.org/press-releases/sec-financial-disclosure-rule-good-investors (11) Sierra Club et al v SEC et al, case number 24-1067, US Court of Appeals for DC Circuit (12) Sierra Club et al v SEC et al, case number 24-1067, US Court of Appeals for DC Circuit

(13) Natural Resources Defense Council v SEC, case number 24-1623, US Court of Appeals for the Eighth Circuit; Sierra Club et al v SEC, case number 24-1633, US Court of Appeals for the Eighth Circuit (14) State of Iowa et al v SEC, case number 24-1522, US Court of Appeals for the Eighth Circuit

(15) ‘The enhancement and standardization of climate-related disclosures for investors; delay of effective date’ (Federal Register, 12 April 2024) https://www.federalregister.gov/ documents/2024/04/12/2024-07648/the-enhancement-and-standardization-of-climate-related-disclosures-for-investors-delay-of-effective

Catriona Campbell

8 Reasons Solicitors Prefer Clio for Their Practices

In the fast-paced and competitive legal industry, solicitors need innovative tools to streamline workflows, enhance efficiency, and drive growth. Clio, the leading legal software, has become the go-to solution for solicitors across the UK. By leveraging Clio's powerful features and integrations, solicitors can transform their practice, achieve greater efficiency, and unlock new growth opportunities. Let's explore why solicitors choose Clio as their trusted legal software solution.

1. Streamlined Workflows: Clio's features centralise case information, reducing manual tasks and saving time.

“Since moving to Clio, we've saved time, our client service has improved, and our profits have increased. We only wish we'd made the move sooner” - Ali Bukhari, Founder, Bukhari Chambers.

2. Enhanced Collaboration: Solicitors can collaborate seamlessly with colleagues and clients, fostering teamwork and improving service.

3. Remote Work Capabilities: Clio's cloud-based platform enables solicitors to work from anywhere, ensuring productivity and client service.

“With Clio, I could successfully support remote working and build a practice with lower overheads. Over the past three years, Clio has become the essential tool for our firm's growth.” - Arun Chauhan, Founder, Tenet Law.

4. Time and Expense Tracking: Simplified tracking and accurate invoicing improve cash flow and client trust.

“Clio has helped tighten our time recording and increased our chargeable hours. It is a fantastic tool for reconciling and tracking transactions in my client account. I can not imagine going back to the way I used to manage my client accounting.” Adele Hunt, Practice Manager, East Devon Law.

5. Financial Management: Insights into firm finances drive growth with our Law Firm Performance Dashboard and with integrations with popular accounting software.

6. Client Relationship Management: Features like client intake, onboarding, and appointment scheduling enhance client satisfaction and loyalty through Clio Grow.

“Clio Grow has helped save my practice. I’ve been a Clio Grow customer for over a year, and the volume of leads my firm receives would be impossible to track without Clio Grow. The system is intuitive and easy to use.” - Lara Evans, Practice Manager, Ubique Legal.

7. Comprehensive Support and Training: Clio provides exceptional support and resources for a smooth transition and ongoing learning.

8. Industry Recognition and Trust: Trusted by thousands of solicitors and compliant with GDPR and SRA compliances.

“The Law Society is delighted that Clio is one of its recommended partners and offers a completely cloud-based case management software. We identified Clio as a supplier that suits our members’ needs, especially as business efficiency is central to performance.”—Fiona O’Mahony, Law Society of England & Wales.

Solicitors choose Clio for its ability to transform legal workflows, enhance efficiency, and drive growth. Join the thousands of solicitors who have chosen Clio as their trusted legal software solution and experience the transformative power it brings to your practice. Start your Clio journey today. Plans from just £49 per user/per month.

To read more Clio customer success stories, visit our site, Clio.com/uk/customers. ■

A fireside chat with Clara Douglas (Law

Students for Climate Accountability)

and Joshua Domb

Josh: For those who are unfamiliar with LSCA, why don’t you start by telling us a bit about that organisation?

Clara: LSCA was founded in 2020 and emerged from a wave of protests against the firm Paul Weiss for their representation of Exxon. We originated in the US and have since expanded into the UK and other jurisdictions across the world. Our organisation annually publishes a Report and Scorecard analysing the fossil fuel transactional work of the Vault 100 firms. Additionally, we offer a pledge for students and firms to commit to not working for the fossil fuel industry.

Josh: How did you come across LSCA and where did your interest in climate issues come from?

Clara: Like many young people, I don’t think there was a defining moment when I became interested in the climate crisis, as it has been a reality for my whole life. As a child, I was particularly focused on natural disasters impacting the Caribbean island where my grandfather was from, as well as animal rights.

I often say I got involved with LSCA by accident. While serving as the partnerships officer for my university’s human rights society, I received an unusual request typically directed at the main Law Society. After discussing this with LSCA, I learned they had approached the main Law Society, but it had declined to support the project, fearing it would negatively impact sponsorships from certain firms.

This revelation deepened my commitment to the project. It highlighted how dependent students felt to these firms, to the extent that they avoided discussing the major role these firms play in the climate crisis. What about you?

Josh: Climate was an interest that grew slowly for me. It started about five years ago. As I began to educate myself I became increasingly interested, and ultimately deeply concerned, about the impact that we are having on the planet, and the effect that impact was having, in turn, on every species that calls our little planet home. I ultimately found myself dealing with a full-blown case of climate

(Founder, Gen-R Law)

anxiety. I was in my early thirties, lying awake at night unable to sleep, panicking about what the future might look like.

Clara: How did that ultimately lead you to forming Gen-R Law?

Josh: Also by accident! By background I am a White Collar Crime Lawyer. I wanted to learn how to use my legal skills to focus on doing work with a positive impact in the climate change space and went looking for a firm that was leading on these issues, on a crosspractice basis, in a genuinely mission-driven way. I assumed there had to be at least one firm in a legal market as mature as the UK which had picked up the mantle!

Whilst I found lots of individuals, and occasionally a team, that was working on some aspect of this challenge, they were all based in firms I already knew well enough. Whilst they were all great firms, I immediately knew none of these places could offer me the environment I was seeking.

Clara: I also hear this frustration from many law students who are personally invested in climate but struggle to find a firm that aligns with their values. What do you mean by mission-driven in the context of a law firm?

Josh: As a starting point, Gen-R Law’s mission statement is: "To contribute to the work against climate change and the global mission to achieve net-zero by building a leading, full-service law firm, with specialist climate change, environment and green-tech expertise embedded throughout every practice area."

The firm has a number of USPs including:

• a commitment that 10% of profits will be donated to climate change-focused charities;

• tailored services for the green-tech start-up community, underpinned by a commitment that 10% of profits will be invested in these businesses;

• a commitment to doing pro-bono work to help develop rewilding and conservation initiatives, along with other charities

working in this space;

• a specific focus on empowering young people to be part of the work against climate change; and

• a specific focus on incorporating lessons and wisdom from indigenous peoples into the way that the firm is run and the advice given to clients.

We have also published a client onboarding policy on our website, making clear what kinds of work we will and will not do, and in what circumstances. At its heart, the objective is to ensure that we are only doing planet-positive work, for organisations that share our planet-positive values. The proposition has landed very well with clients who are increasingly focusing on these issues. I have also received dozens of messages from lawyers - and law students - all over the world, who are really excited to see a firm like this emerging. There is a huge demand in the legal community for work with impact and purpose, particularly in the climate space. I certainly won’t struggle to recruit!

Clara: It's encouraging to hear that you are emphasizing the importance of integrating climate considerations into all areas of legal practice. Unfortunately, many universities do not offer environmental law courses or recommend climate-framed readings for other legal areas that are increasingly being utilised to address climate issues.

Your client onboarding process is intriguing. With recent Law Society guidance allowing lawyers to refuse clients on climate change grounds and more lawyers engaging in emissions discussions, it is becoming easier for climate conscious lawyers to align their work with their values. Moreover, ongoing greenwashing litigation and investigations into oil company practices suggest a future where rejecting fossil fuel work could become as common as some firms already refusing to work with the tobacco industry.

Josh: Given all of this, what is your key takeaway for lawyers and law firms?

Clara: Firstly, that a legal education and career are privileges that come with a great deal of power. Secondly, the notion that lawyers are either passive or active is misleading; in reality, all lawyers play an active and influential role through their work. LSCA would encourage firms to have internal discussions that recognise that a firm's sustainability is defined in part by their client matters.

Furthermore, that addressing the climate crisis will become increasingly important in attracting and retaining talent. Your journey exemplifies this, and with surveys indicating that 74% of adults are very or somewhat worried about climate change, it’s clear that this concern will influence many professional decisions (ONS—https:// www.ons.gov.uk/peoplepopulationandcommunity/wellbeing/articles/ worriesaboutclimatechangegreatbritain/septembertooctober2022).

What about you?

Josh: As a profession, we need to understand that climate considerations are at least potentially relevant to 99% of instructions, regardless of which practice area they fall under. The unfortunate reality is that, right now, 99% of lawyers are not climate literate, and in that delta is a real risk that we will miss material issues, and commercial opportunities when advising our clients.

I think we have a serious education piece to do across and at all levels of the profession, and I have been pleased to meet many people over the last few months who are picking up this baton within their firms.

Given the nature and gravity of the climate crisis, the time for lawyers to position themselves as impartial advisors has long since passed. We have an unparalleled ability to influence our clients to focus on these issues and help them navigate the challenging road ahead. We also have a responsibility to future generations to rise to this moment in history. If we fail to act in a sufficiently meaningful way in the next few years, the science is very clear that it will be too late for those who come after us to make a material difference.

Clara: I agree, Law schools, students and firms need to recognise the impact that climate change will have on the industry and in turn the impact that they have on the climate 

(Founder, Gen-R Law)

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Joshua Domb

Clara Douglas (Law Students for Climate Accountability)

Dye & Durham launches Unity® Practice Management

Dye & Durham launched Unity® Practice Management, offering small and medium-sized law firms a tailor-made software to keep their operations running smoothly while accessing Dye & Durham’s broader range of technology solutions, including conveyancing searches, AML, and a legal information AI assistant.

DeeDee is an always-on AI assistant available 24/7 to streamline tasks and boost law firms’ productivity. Powered by the latest models from OpenAI, DeeDee makes it easy to generate first drafts of documents, summarise legal principles, and start legal research. DeeDee is designed to help law firms get an edge in the coming “AI Age” of legal services.

DeeDee is now available within Dye & Durham’s Unity® Global Platform and Unity® Practice Management.

In addition to DeeDee, Unity® Practice Management features instant AML checks including PEP, Sanction, Adverse Media, Law Enforcement, and Disqualified Director checks for improved risk management.

Integrated Conveyancing Searches

Unity® Practice Management users also have integrated access to residential conveyancing searches that make due diligence on property transactions quick, easy, and accurate. And now, with Dye & Durham’s Best Value Search Packs, conveyancers can save time, effort, and money on every transaction. Comprised of Dye & Durham’s premium conveyancing reports, these Best Value Search Packs deliver all the data and insights needed for a typical property transaction, at market-leading prices.

Visit Dye & Durham’s website to learn more or contact their team at salesteamuk@dyedurham.com. ■

Business & Human Rights in the Era of Climate Justice – a new regulatory landscape?

When the District Court in The Hague held that Shell had a duty of care to take action in preventing dangerous climate change in 2021 this was hailed as a “tipping point” in climate litigation. It was the first time that a court incorporated the UN Guiding Principles on Business & Human Rights (“UNGPs”) into the duty of care under domestic law.1

Fast forward to 2024, following months of intense negotiations, the EU Council and Parliament introduced the Corporate Sustainability Due Diligence Directive (“CSDDD”) creating expansive human rights due diligence obligations for companies in Europe and mandating that they develop and implement a climate transition plan.

The incorporation of human rights considerations into key legislative instruments of the EU Green Deal, such as the CSDDD, has expanded the ability for corporates to be held accountable for the human rights impacts of climate change.

Climate change and human rights

The connection between the adverse effects of climate change and human rights is well established, having been recognised in the Cancun and Paris Agreements,2 and more recently by judicial decisions in the European Court of Human Rights and Indian Supreme Court.3

The responsibility to protect human rights, however, has historically applied to states through various international treaties such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.4 Corporate responsibility, on the other hand, has been managed by non-binding soft law instruments such as the UNGPs and the OECD Guidelines for Multinational Enterprises (“OECD Guidelines”).5

A new era for business and human rights in Europe?

Over time, these soft law instruments and their concepts have found their way into regulation and government guidance. Notably, the EU has reflected these in its requirements on sustainability reporting and mandatory human rights due diligence.

Sustainability reporting

The Corporate Sustainability Reporting Directive (“CSRD”) mandates that companies within its scope must assess and disclose material environmental, social and governance impacts, risks and opportunities in their operations and value chains. These disclosures are to be made in accordance with detailed European Sustainability Reporting Standards (“ESRS”), which cover topics such as climate change, biodiversity, workers, and affected communities. The reporting must be conducted on a 'double materiality' basis, which evaluates both the financial impacts on a company but also a company’s external sustainability impacts.

Under the CSRD and its accompanying ESRS’ companies must disclose their alignment with established frameworks like the UNGPs and the OECD Guidelines, and their procedures to monitor adherence to such frameworks.6

Mandatory human rights due diligence

The CSDDD set a new bar for mandatory human rights due diligence by establishing a comprehensive EU-wide regime that requires companies to undertake diligence on adverse human rights and environmental impacts in their own operations and chains of activities. This sits alongside existing and upcoming product-specific regimes covering conflict minerals, deforestationprone commodities, critical raw materials, and batteries. Prior to the CSDDD, individual member states had also introduced their own due diligence regimes such as France’s Duty of Vigilance and Germany’s Supply Chain Due Diligence Act.

The significance of the CSDDD cannot be overstated. Rooted in the principles of the UNGPs, the CSDDD mandates that companies take appropriate actions to mitigate these impacts wherever they occur, including within their chains of activities. These obligations are backed by a penalty regime for failure to comply as well as civil liability for damages due to intentional or negligent failure to comply with due diligence obligations.

It will have extra-territorial effect by applying to companies that generate over €450 million net turnover in the EU, regardless of the country in which they are registered, in effect, creating a condition of access to the EU market. UK companies with significant operations in the EU will therefore likely fall in scope. Furthermore, the impacts of the CSDDD will be amplified as its requirements get cascaded down global supply chains as companies look to comply.

The climate nexus

A confluence of factors has set the ground for an intersection between business and human rights and climate change.

There are many examples of rights-based arguments in climate litigation, including the case against Shell mentioned above.8 The additional due diligence requirements and civil liability regime under the CSDDD has set the stage for further rights-based arguments in relation to climate, see for example, the cases filed in France under the Duty of Vigilance over alleged failures to account for the adverse human rights impacts of climate change.9

The connection between climate change and human rights is less clear from a disclosure perspective as the CSRD draws a clear distinction between climate change-related impacts and human rights. The only intersection drawn between climate change and human rights within the CSRD is in the context of the transition to a climate-neutral economy.10

However, as companies start to assess their material impacts, risks and opportunities, these regimes have opened up the space to ask the question – when is a climate change impact, a human rights impact? 

Jon Tan Associate – Linklaters

1 The Hague District Court, Milieudefensie and Others v. Royal Dutch Shell PLC and Others, case number C/09/571932, Judgment of 26 May 2021

2 UNFCCC, The Cancun Agreements, Decision 1/CP.16 (2010); UNFCCC, Paris Agreement (2015).

3 Verein Klimaseniorinnen Schweiz and Others c. Switzerland (2024), 53600/20; MK Ranjitsinh et al. v. Union of India et al. (2024), INSC 280

4 UN, Universal Declaration of Human Rights (1948); UN, International Covenant on Civil and Political Rights (1966).

5 UN, Guiding Principles on Business and Human Rights (2011) (https://www.ohchr.org/sites/default/files/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf); OECD, Guidelines for Multinational Enterprises (2023) (https://www.oecd.org/en/publications/2023/06/oecd-guidelines-for-multinational-enterprises-on-responsible-businessconduct_a0b49990.html)

6 See, for example, ESRS S3 paragraphs 16 and 17

8 Savaresi, A., & Setzer, J. (2022). A first global mapping of rights-based climate litigation reveals a need to explore just transition cases in more depth. Grantham Institute; Setzer, J., & Higham, C. (2024). Global Trends in Climate Change Litigation: 2024 Snapshot. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science.

9 Notre Affaire à Tous Les Amis de la Terre, and Oxfam France v. BNP Paribas (Notre Affaire à Tous Les Amis de la Terre, and Oxfam France v. BNP Paribas - Climate Change Litigation (climatecasechart.com)); Notre Affaire à Tous and Others v. Total (Notre Affaire à Tous and Others v. Total - Climate Change Litigation (climatecasechart.com))

10 ESRS E1 Paragraph 9

Jon Tan

Climate change and marine pollution: twin challenges for international law

Given the ocean’s crucial role for a safe and healthy climate system, it is perhaps surprising that, historically, the international climate change regime has paid little attention to the ocean. However, the first-ever advisory opinion on climate change and the marine environment issued by the International Tribunal for the Law of the Sea (ITLOS) may just be a game changer. This advisory opinion shows that States already have far-reaching obligations with respect to climate change and the ocean under a different regime – namely, the law of the sea.

The ocean in crisis

“Oceans face ‘triple threat’ of extreme heat, oxygen loss and acidification”, “Oceans set heat records for more than 365 days in a row”, and “Scientists identify new Antarctic ice sheet ‘tipping point,’ warning future sea level rise may be underestimated” are just some of the daunting headlines we have read in the news this year.

Climate action and ocean protection go hand in hand, given that the ocean absorbs excess carbon dioxide emissions and heat (and is in fact the world’s largest carbon sink). However, the climate crisis is now causing ocean acidification, deoxygenation, warming and rising sea-levels. These impacts in turn pose an existential threat to vulnerable coastal communities, such as Small Island Developing States (SIDS).

A group of SIDS have come together to rise to this challenge by forming the Commission of Small Island States on Climate Change and International Law (COSIS) and issuing a request for an advisory opinion with ITLOS in December 2022.

COSIS asked ITLOS two questions with a view to clarifying States’ specific obligations under the United Nations Convention on the Law of the Sea (UNCLOS) with respect to climate change and the marine environment. The first one concerns States’ obligations to prevent, reduce and control marine pollution caused by greenhouse gas (GHG) emissions. The second one concerns States’ obligations to protect and preserve the marine environment with respect to climate change impacts.

World’s ocean court responds

Before offering an overview of some (but not all) of the advisory opinion’s key findings, it is worth noting the strong emphasis ITLOS placed on the best available science which it found to be the works of the International Panel on Climate Change (IPCC). Not only did ITLOS offer a detailed overview of the scientific aspects related to climate change and the ocean, but it interweaved these authoritative scientific assessments with States’ obligations under UNCLOS.

In a ground-breaking first, ITLOS found that anthropogenic GHG emissions fulfil the legal definition of “pollution of the marine environment” under UNCLOS, triggering the application of UNCLOS in respect of climate change and the ocean. While most States agreed with this in their submissions, it is vitally important to remove any doubt because the UNCLOS text makes no explicit reference to climate change.

With respect to the first question, which broadly concerns States’ mitigation obligations under UNCLOS, ITLOS issued several strong legal findings:

• States have a general obligation to take “all necessary measures” to prevent, reduce and control marine pollution from “any source” under UNCLOS. While global efforts are important, States must also take individual action as appropriate.

• “All necessary measures” must be determined objectively and guided by the best available science and the 1.5°C temperature goal and timeline for emission pathways. Other objective factors are also relevant, such as international rules and standards (primarily those found in climate change treaties) and the available means and capabilities of States.

• In the context of transboundary pollution, a separate obligation arises with an even more stringent standard of conduct, given that this type of pollution affects the environment of other States.

• Obligations under UNCLOS are not met simply by complying with requirements under the Paris Agreement. UNCLOS contains a separate set of obligations and may require States do to more.

• This general obligation to take “all necessary measures” is complemented and elaborated upon by specific obligations that apply to particular sources of pollution – including global shipping and aviation. These specific obligations include, on the one hand, adoption of domestic legislation and establishment of international rules and standards, and on the other hand, enforcement obligations.

• States also have a range of other specific obligations such as the obligation to provide assistance to (in particular, climate vulnerable) developing States in their mitigation efforts. Such assistance also includes financial assistance.

• Failure of a State to comply with the obligation to take “all necessary measures” to prevent, reduce and control marine pollution from GHG emissions would engage state responsibility.

In response to the second question, which broadly concerns States’ obligations with respect to adaptation and resilience building, in a nutshell, ITLOS found that the obligation to protect and preserve the marine environment from climate change impacts is a broad one and may also encompass adaptation and restoration. It also found States to have a specific obligation to protect and preserve rare or fragile ecosystems as wells threatened species and other forms of marine life from climate change impacts.

Global ripple effects

Often, central governments set baseline standards for energy efficiency. However, whilst an advisory opinion is itself non-binding it carries “great legal weight and moral authority” as the explanation of binding law by an international court, and is expected lead to a number of benefits and opportunities, such as for domestic and international policymaking. Of particular interest in this contribution are the advisory opinion’s possible ripple effects for other climate change litigation.

The role of the ocean has already been highlighted in domestic climate change litigation and explored elsewhere. For example, the Swedish “Aurora Case” highlights the importance of preserving marine carbon sinks. Nevertheless, the main focus of litigation seeking to protect carbon sinks to date lies in the land use, land use changes and the forestry sector.

While the ITLOS advisory opinion pays tribute to the ocean’s function as a carbon sink, it goes beyond that, highlighting severe biodiversity threats that the ocean faces due to climate change impacts as well as outlining States’ specific obligations in this regard. Given that there already exists a number of legal challenges focusing on marine biodiversity threats and that biodiversity litigation is expected to grow in the future, we may expect the ITLOS advisory opinion to give a boost to such cases.

Another strand of climate change litigation with ocean aspects seeks to protect the livelihoods of vulnerable communities dependent on the ocean, an example of which is the “Torres Strait Islanders case. The ITLOS made it clear in its advisory opinion that UNCLOS obligations are a “means” of addressing an “inequitable situation” faced by climate vulnerable States such as SIDS.

Lastly, the ITLOS advisory opinion is also expected to influence climate change litigation in the international arena. Most immediately, ITLOS’ findings are expected to inform other advisory proceedings on States’ obligations with respect to climate change which are currently before the International Court of Justice (ICJ). Crucially, an issue which ITLOS only indirectly addressed (given the questions asked) and the ICJ now has the power to clarify is that of state responsibility and liability. 

Isabela Keuschnigg Legal Officer, Opportunity Green

Isabela Keuschnigg

Directors’ Duties: Nature in the Spotlight

Jasmine Fraser

The global economy is embedded in and dependent on the Earth’s broader ecosystems. This has been demonstrated by several reports, most prominently the World Economic Forum and PwC 2020 report (with figures updated by PwC in a 2023 report) which found that more than half of the world’s total GDP is moderately or highly dependent on nature and its services. As such, the world is greatly exposed to the loss of nature; the World Economic Forum’s Global Risks Report 2024 identified biodiversity loss and ecosystem collapse as the third most severe global risk over the next 10 years.

Concerningly, the UK is one of the most nature-depleted countries in the world. A recent report by the Green Finance Institute found that damage to the natural environment is slowing the UK economy, and could lead to an estimated 12% reduction in GDP in the years ahead. This figure is a preliminary but conservative estimate, but still larger than the hit to GDP from the global financial crisis (5%) or Covid-19 (11%).

But what role do companies play in addressing nature-related risks, and could directors be liable for failing to consider such risks?

In March this year, a legal opinion authored by high-ranking company and financial law barristers and co-commissioned by the Commonwealth Climate and Law Initiative (CCLI) and Pollination (the Opinion), shed light on how directors' duties under the law of England and Wales encompass naturerelated risks. This Opinion emphasises the legal obligations of directors to consider nature in their decision-making processes, highlighting the evolving landscape of corporate responsibility. This article explores the key insights from the Opinion and the implications for directors in managing naturerelated risks.

Directors’ duties: applicability to nature

Under the Companies Act 2006, the duties of directors in England and Wales include:

• The duty to promote the success of the company for the benefit of the members as a whole (section 172). This duty is one of loyalty which is broad and flexible. Section 172 contains a non-exhaustive list of factors to which directors should have regard and includes “the impact of the company’s operations on … the environment”. The authors of the Opinion consider this factor to encompass nature-related risk.

• The duty to act with reasonable care, skill and diligence (section 174). Whilst the law has not changed, directors’ duties are constantly evolving. The scope of directors’ duties is affected by the factual context in which a company operates, changes in scientific, technological, economic and financial understanding and shifts in market and societal attitudes. The Opinion states that nature-related risks fall within the category of risks to which a director ought to have regard when discharging their duties under sections 172 and 174. Directors who fail to consider relevant non-trivial nature-related risks, and take appropriate steps to mitigate them, may be exposed to claims that they have acted in breach of duty. Consequences for breach of duty may include claims for damages, director termination, adverse reputational consequences and a challenge to executive directors’ remuneration and ‘bad leaver’ provisions. The findings of this opinion reflect a 2022 report by the CCLI which concluded that nature-related risks are likely to be relevant to directors’ duties under many company law frameworks around the world.

Understanding your dependencies and impacts on nature

Nature-related risks are “potential threats (effects of uncertainty) posed to an organisation that arise from its and wider society’s dependencies and impacts on nature.” They can arise in myriad factual scenarios with a wide range of direct and indirect effects on a company. Risks can present themselves as:

• Physical risks: these will depend on the characteristics of a company's dependencies and encompass location-specific chronic or acute risks to an organisation that result from the degradation of nature and consequential loss of ecosystem services. For example, soil degradation

or water shortages can impact food producers, retailers and other companies in the supply chain.

• Transition risks: these can result from shifting consumer and investor sentiment and new technology or regulations. For example, the introduction of the UK Environment Act 2021 prohibits businesses operating in the UK from using key forest-risk commodities, such as soy, cocoa, palm oil and cattle products, produced on illegally occupied or used land.

• Legal risks: these include the potential for complaints, regulatory action or litigation against companies for the impacts of their activities on ecosystems or misrepresentation of nature-related risks and impacts. For example, Drax Group Plc is under scrutiny for greenwashing and a legal challenge under the Financial Services and Markets Act 2000 following a significant drop in share price partly arising from claims that its woody biomass is low carbon or carbon neutral where much of the biomass is sourced from primary old-growth forests in Canada.

• Systemic risks: these are risks to an organisation from the breakdown of the entire system, including risks from the breakdown of natural systems (e.g., triggering tipping points) and risks from the destabilisation of the financial system (e.g., supply chain disruption, price volatility, and greater insured losses).

Implications for directors

Shell for mismanagement of climate risks (the case is discussed further here) might provide directors with some comfort. However, the Opinion acts as a reminder that another judge could have decided the Shell case differently by referencing extra-judicial commentary from retired Supreme Court judge Lord Carnwath on the Shell case as a “missed opportunity”. The Shell decision is not necessarily a bar to similar claims regarding directors’ management of nature-related risks.

Directors can promote the success of their company using the Opinion’s five-step roadmap to address nature-related risks and steer their company competitively through the nature-positive transition.

1. Identification: Directors who actively consider the extent to which their company faces nature-related risks will find it easier to make commercial decisions and justify action or inaction.

2. Assessment/evaluation: Directors can assess which risks are relevant and non-trivial and evaluate their potential to cause harm to the company, aided by TNFD guidance and materiality assessments.

3. Risk management/mitigation: Consider how best to manage and/or mitigate relevant and non-trivial risks where appropriate, for example through a risk management framework.

4. Disclosure: Decide i) what needs disclosing under applicable laws and ii) whether to voluntarily disclose (in response to market or investor expectations) material nature-related risks or impacts.

5. Documentation: By properly recording how they have taken the above four steps (in board minutes, agendas, memorandums and reports) directors can protect themselves from legal risks.

Conclusion

Nature-related risks fall within existing financial risk categories and are not new. The focus on nature is only becoming more pronounced, with the International Sustainability Standards Board commencing work on naturerelated issues drawing on the recommendations of the TNFD. The Opinion provides a compelling reminder that directors cannot afford to ignore nature-related risks. As the legal and regulatory landscape evolves, directors must integrate nature considerations into their decision-making processes to fulfil their statutory duties. By proactively following the steps above, directors can mitigate risks and position their company for long-term success in a sustainable economy. 

Jasmine Fraser Corporate/Finance and Climate Lawyer

Chris Cotterill

Acting as a trusted partner to review and advise on your company’s insurance risks and insurance requirements. Working with you to offer your clients a dynamic professional service.

Email: chris.cotterill@konsileo.com

Insurance Experience & Service Offer

I have 18 years industry experience with extensive knowledge of several insurance products listed below to name but a few, this list is not extensive.

• Professional Indemnity

• Cyber Liability

• Executor & Inheritance Insurance

• Office Insurance

• Management Liability

• Restrictive Covenants

• Group Healthcare

• Group Travel Insurance

Having experienced working for global companies and independent brokers. I bring the experience of working on complicated projects and offer that personal service as a specialist in this industry.

Solicitors Industry Experience

I have partnered with law firms as new startups and firms with over 100 years of experience. As well as the important Profesional Indemnity renewal. I willl work with the firms’ departments to promote risk management solutions such as;

• Cyber risk training and awareness.

• Provide insurance solutions for your commercial clients.

• Risk Management Services with The Strategic Partnership.

• Promote Executor & Inheritance insurance to reduce Probate claims on the Professional Indemnity insurance.

• Proud to sponsor local law societies.

• Working with law firms during mergers and acquisitions.

• Provide pro active claims services for all the policies we provide. 1 claim may trigger more than 1 policy.

www.konsileo.com

Solicitors and Law Firms Insurance News:

With 20 years within the insurance industry, specialist insurance broker, Chris Cotterill provides Solicitors and Law Firms with top tips and advice on insurance and mitigating potential risks. With extensive knowledge on compliance and risk management structures, Chris can provide all-encompassing risk advice for any business, especially those with a growing reliance on technology.

Insurance Renewals - What to watch out for:

Over the last 12 months I have experienced first-hand, where law firms have struggled to navigate a renewal process, often due to an oversight, the miscalculation of potential risks or inaccuracy within their renewal terms. Below are a few tips on how to avoid this from happening to you.

Do:

• Carefully select an insurance broker to navigate the complex renewal process with you. Someone who can provide a constructive roadmap to obtaining suitable and competitive renewal terms and explain why particular insurers have been chosen.

• Work on risk mitigation solutions using new technology and 3rd party consultants.

• Agree a marketing strategy with your broker, well in advance of the renewal. Don’t be tempted to remarket year on year.

Don’t

• Ignore your claims experience. If there is a trend of claims in probate or large claims noted, then discuss with your broker how these are being resolved and what lessons have been learnt.

• Never leave it to the last minute. Hoping that you will obtain a positive claims experience a week before renewal, as this rarely ends well!

Raising Claim Awareness

Some of the more common claims for solicitors is ID fraud, to the point where the fraudster will meet you face to face with a fake passport. Some firms are also getting caught out in similar situations to the Dreamvar case in 2018. Even though you have known your clients for a number of years, solicitors further down the chain may not have the same strict ID checks that you have.

Some of the leading insurers have also noticed an increase in claims relating to Probate matters and may soon be overtaking conveyancing claims as one of the main risks to law firms. As well as training there are alternative insurance products for this type of work.

The Team at Konsileo

We are here to provide best advice on your firm’s insurance requirements. We work in partnership with compliance advisors and offer cyber risk tools to mitigate risks and raise awareness within your team.

• I will help with the completion of the proposal form to ensure that work splits are accurate and let you know what insurers are looking for on certain sections.

• Our close relationships with insurers let us know what firms they are looking for and where best to place your business.

• We can provide Cyber external scans to test your IT systems.

• Executor & Inheritance insurance to provide separate cover for Probate claims. ■

Chris Cotterill Client Director

07788601 5007 Chris.Cotterill@konsileo.com

Dominika Leitane

Building towards a just transition: climate litigation and energy efficiency in buildings

The link between buildings, emissions, and social justice

When we talk about greenhouse gas emissions, images of smoke-billowing factories may come to mind – but sometimes the source of emissions is somewhat closer to home. The buildings sector accounts for as much as 37% of global GHG emissions, with residential buildings responsible for more than half of this total. This makes energy efficiency in homes a crucial area for climate action.

Key to this challenge is improving energy efficiency, and beyond just reducing emissions, this can also improve quality of life and achieve social justice. Inefficient homes lead to higher energy bills and significant adverse health effects, which disproportionately affects vulnerable groups, particularly lowincome families, the elderly, and people of colour.

This means that the issue of energy efficiency in homes is inextricably linked to various human rights, including the right to life, health, an adequate standard of living, freedom from discrimination, and a healthy environment.

Despite all this, the buildings sector remains an underdeveloped area in climate change litigation. However, litigious actions in the sector are on the rise, and there is a growing recognition of the significant role that energy efficiency measures will play in reducing emissions. These cases fall into four main categories; framework challenges, local-central government disputes, product efficiency standards and human rights.

Framework challenges

Several cases brought in the past few years challenge inadequate climate change measures adopted by governments. Such cases tend to be broad in scope, challenging overall government policy in response to climate change on an economy-wide basis (referred to as ‘framework litigation’). However, a number of those cases refer to the buildings sector, and energy efficiency in buildings, as part of their arguments. While the courts have to date generally stopped short of making sector-specific orders, certain claims have been successful in requiring headline action across all sectors.

For example, Notre Affaire à Tous v. France involved nonprofit organisations compelling the French government to take stronger action to meet its climate goals, calling for improved energy efficiency in buildings among other sector-specific pleadings. The Paris Administrative Court ordered the government to offset its excess GHG emissions by 2022.

In R (Packham) v Secretary of State for Energy Security and Net Zero and Secretary of State for Transport, the UK government’s Net Zero policy is currently being scrutinised. One of the grounds of this ongoing challenge is that, in changing its approach to net zero, the government failed to take into account ongoing consultations about off-grid heating and minimum energy efficiency in rental properties.

Central vs. local government regulations

Often, central governments set baseline standards for energy efficiency. However, local governments tend to have a better understanding of the unique needs and challenges of their communities, and may wish to adopt more ambitious energy efficiency policies to meet their climate and social justice commitments. Litigation can occur when central government policy is at odds with local government ambition.

For example, in (R (Rights, Community, Action) v Secretary of State for Levelling Up, Housing And Communities), civil society organisation Rights, Community, Action successfully challenged the decision by a UK planning inspector to reject West Oxfordshire District Council’s plan for a new housing development with particularly high net-zero standards, including ambitious energy efficiency measures.

In the USA, a group of cases has emerged surrounding the federal Energy Policy and Conservation Act (EPCA) and whether it preempts (i.e., displaces) higher local standards in certain cases.

In California Restaurant Association v. City of Berkeley, the United States Court of Appeals for the Ninth Circuit found that the EPCA preempted the City of Berkeley’s ban on natural gas piping in new construction. The Court subsequently declined to re-hear

this matter, despite the City of Berkeley’s petition for rehearing being supported by 8 Amicus Briefs from various cities, states, NGOs and other organisations.

Although this action was brought by a restaurant industry group, the decision had significant implications for the buildings sector as a whole, particularly because the Court of Appeals’ decisions are binding on all district courts within the Ninth Circuit. Indeed, following the Berkeley decision, Washington State Building Code Council adopted a revised version of amendments of the State Energy Code, restricting the use of natural gas appliances in commercial and residential buildings. A challenge to the revised amendments was promptly brought by industry representatives and residents (Northwest Regional Council of National Construction v. State Building Code Council). A hearing on the merits will take place later this year.

The cases demonstrate the challenges that local authority climate action can encounter, not only from central government but from other stakeholders as well. The interplay between central and local government policy has become a key area for litigation which seeks to advance bolder climate action, but also for ‘counter-climate litigation’. This is particularly important in the buildings sector, since local authorities may have significant powers and duties associated with planning laws and regulations, protecting wildlife and heritage, preventing hazards in housing, and enforcement of building regulations.

Product efficiency standards

Several cases have been initiated in the USA focusing on the energy efficiency of specific household appliances.

For example, in New York v. U.S. Department of Energy and Natural Resources Defense Council v. U.S. Department of Energy, 15 states, New York City, the District of Columbia, and several organisations challenged the Department of Energy's withdrawal of expanded light bulb energy conservation standards. The motions were subsequently paused due to the Department of Energy’s intention to review the withdrawal, which ultimately resulted in the initial expansive rule being reinstated. Similarly, in Natural Resources Defense Council, Inc. v. Perry, several states, New York City, and environmental groups successfully challenged the Department of Energy's decision to delay energy conservation standards for various appliances.

These cases demonstrate the salience of product-specific energy efficiency measures in working towards reducing GHG emissions, and the pivotal role of federal energy standards in state and national environmental strategies in the USA. As state and environmental groups continue to challenge federal standards perceived as not ambitious enough, we expect the courts will continue to be an important forum for interested groups seeking to uphold GHG reduction policies.

Human rights and just transition

Human rights and just transition litigation represents a potential future growth area for the buildings sector. The link between the energy efficiency of buildings and just transition is starting to be recognised in climate change litigation.

In R (Friends of the Earth, ClientEarth, Good Law Project) v Secretary of State for Business, Energy and Industrial Strategy, the UK’s Net Zero Strategy and the Heat and Building Strategy were challenged. Among other arguments, it was submitted that the UK government failed to consider the impact of the Heat and Buildings Strategy on vulnerable groups – which the High

Court accepted. The government subsequently undertook an equality impact assessment of the Heat and Buildings Strategy, acknowledging that not actioning buildings decarbonisation policies would likely cause negative impacts, and committing to monitoring and adjusting the strategy, as appropriate, considering the latest evidence to advance equality.

In Verein KlimaSeniorinnen Schweiz and others v. Switzerland, the European Court of Human Rights (ECtHR) found that the right to respect for private and family life (Article 8(1) of the European Convention of Human Rights) includes a right to effective protection by the state from the serious adverse effects of the climate crisis on lives, health, wellbeing and quality of life.

Whilst not expressly addressing the buildings sector, this groundbreaking recent judgment is expected to have farreaching implications for the development of climate change litigation as a whole. It cements the link between human rights and climate change law – a precedent which we expect will now be followed by national courts in the Member States of the Council of Europe, potentially affecting the pending framework challenges to government climate change policies (outlined above), as well as opening potential new avenues for climate litigants. At the ECtHR itself, there are currently several other climate change applications which have been adjourned until the KlimaSeniorinnen judgment, and which will now proceed to be examined.

The future of climate litigation

Energy efficiency in buildings is not just about mitigating the climate crisis; it is also an important consideration in adapting to the impacts of climate change. Proper insulation can keep homes warm in winter and cool in summer, reducing energy costs and improving health outcomes.

Climate change adaptation was a significant aspect of the KlimaSeniorinnen judgment, and the subject of a recentlybrought challenge to the UK government. As extreme weather events become more frequent, the role of energy efficiency in climate adaptation is likely to grow, potentially leading to more litigation in this area.

As the landscape of climate litigation evolves, we can expect to see more cases targeting energy efficiency measures, highlighting their importance in both mitigation and adaptation strategies. Public and private sector stakeholders alike must recognise the increasing legal risks and opportunities associated with this critical issue. 

Dominika

Leitane

Legal Officer at Opportunity Green

an environmental NGO that uses legal, economic and policy knowledge to tackle climate change.

For more information, read Opportunity Green’s full briefing, Building towards a just transition: Energy efficiency in residential buildings as an area of strategic climate litigation.

Lucia Williams

WRisky business: the role of insurance in addressing climate change

hile this summer in London might not have felt very balmy at all, last May was reportedly the warmest on record in the UK1 and globally, marking a year of record-high monthly temperatures.2 Things have been metaphorically heating up in the global political arena as well, with elections taking place in India, France, the UK of course, and the US in November. In this context of changing climate, both physical and political, world leaders will head to COP29 in Baku, Azerbaijan, in mid-November, to drive action on climate change. COP29 has been dubbed the “Finance COP” because it will focus on negotiating a new climate finance goal;3 and it will aim to be an “enabling COP” which will catalyse action on climate through mobilising people, finance, resources and solutions.4 Undoubtedly, a key solution, indeed a potential “great enabler” on climate action, is insurance.5

The global insurance market has been estimated to be worth over $6 trillion.6 Insurance is ubiquitous; many types of insurance are mandatory and its function as an effective risk transfer mechanism has long been recognised. These characteristics make insurance a key means of tackling the grave risks posed by climate change and facilitating a just transition, as well as a sector which is perfectly placed to grasp the commercial opportunities this offers.

The insurance industry can play a threefold role in the climate crisis, as:

1. a hub of knowledge, skills, data and capabilities on the assessment and evaluation of risk;

2. an enabler of the transfer, abatement and mitigation of, and adaptation to, risk; and

3. a driver of investment.

Three types of climate risk

As long as there have been risks, there has been insurance. Climate change is certainly one of, if not the greatest risk facing Planet Earth today. More so as it is closely intertwined with the risks of biodiversity loss and ecosystem degradation, as well as social and political risks. Climate change is set to exacerbate resource scarcity and uninhabitability of certain parts of the world, leading to mass migration and violent conflicts.

Climate risk itself is commonly classified into three types of risk, outlined in 2015 by then Governor of the Bank of England Mark Carney in his famous “Breaking the Tragedy of the Horizon” speech at Lloyd’s of London. In rallying the insurance industry to act on climate, Mr Carney posited the industry would need to face physical, transition and liability risks.

• Physical risks are the most immediate and obvious risks posed by climate change, namely the physical effects of a rise in temperatures such as desertification, melting of ice caps, sea level rise, increase of flooding and forest fires. These risks can lead to the widening of the so-called “protection gap” between areas and assets that are covered by insurance and those that are not, and the creation of “insurance deserts” where it is too costly and risky for insurers to provide cover. For instance, some insurers have stopped insuring parts of California and Florida, due to the

increased risk of forest fires in the former and flooding in the latter,7 leaving the uninsured to bear those risks, and attracting criticism for failing to adapt their models to accelerating climate change.8

• Transition risks are occasioned by the shift away from a fossilfuel based economy to a net zero economy. Transition risks take the form, primarily, of stranded assets, meaning those assets such as coal mines, oil fields and the infrastructure which supports them, which will become obsolete as the world transitions away from fossil fuels. Transition risks also comprise devaluation of enterprises which continue to rely heavily on fossil fuels and/or carbon-intensive practices – including, for instance, the production of steel, concrete, or factory farming.

• Liability risks are the risks that companies face of being targeted by climate litigation. Over the past decade (broadly coinciding with the entry into force of the Paris Agreement), there has been a real surge in climate litigation, with an ever-greater variety of claimants bringing lawsuits against different defendants. From early “framework” or “administrative” cases brought mainly by environmental NGOs and individual plaintiffs against States in the Global North, challenging insufficient action on climate, climate litigation now spans the globe and is increasingly targeted at corporations – aiming to hold high emitters accountable for their role in causing climate change, questioning companies’ commitments on climate and their marketing practices (“greenwashing”), and taking issue with directors’ roles and responsibilities in the climate crisis.9

How the insurance sector manages to analyse and respond to these risks will determine how effectively it adapts to the climate crisis, maintains profitability and supports a just transition to net zero in line with States’ international commitments and companies’ strategies.

Insurance helps manage risk

At its heart, the fundamental purpose of insurance is to be “the ultimate community product”,10 providing protection to individuals and companies in times of need. The insurance sector has had to adapt and learn to remain relevant; weathering shocks and working with other societal actors to mitigate risks. In terms of promoting resilience, there is evidence that countries with greater penetration of insurance coverage have faster economic recoveries from catastrophes and rebuild with greater resilience to future disasters; reportedly, a 1% increase in insurance penetration can reduce the disaster recovery burden on taxpayers by up to 22%.11

The role which insurance can play in supporting the resilience of communities around the world is widely recognised and driven by multilateral organisations. For instance, the Access to Insurance Initiative (aii) (the implementation arm of the International Association of Insurance Supervisors (IAIS)), notes insurance’s role in protecting people and assets and in supporting many of the United Nations’ Sustainable Development Goals.12 In 2012, the UN Environment Programme Finance Initiative (UNEP FI) launched the Principles for Sustainable Insurance (PSI), the largest collaborative initiative

between the UN and the insurance industry, to work on solutions including sustainable insurance facilities, net zero and naturepositive insurance. The Insurance Development Forum, a publicprivate partnership between the insurance industry and international organisations, further supports projects around the world to improve tracking of risk and build resilient communities,13 including by promoting pre-arranged financing for disaster-prone areas and initiatives like the Global Risk Monitoring Alliance.14

To respond to heightened needs for protection driven by climate change, insurers are increasingly using innovative instruments such as parametric insurance. This type of insurance, which pays out to policyholders once certain conditions are met, such as excessive heat or rainfall, can help manage those risks before damage (for instance, lost crops) materialises. For instance, insurer Allianz has recently developed a parametric insurance product to help farmers in Colombia protect their crops against risks of excessive or insufficient rain;15 while in India, parametric insurance has supported women workers during extreme heatwaves;16 and in Mexico, it has protected the Mesoamerican Reef from the risk of destruction by hurricane.17

Insurance policy wording can disincentivise environmentally damaging behaviour. For example, the Lloyd’s Market Association (LMA) has introduced a model climate change exclusion clause to avoid policyholders being compensated for liability arising out of claims that they have caused or contributed to climate change and its consequences.18 The LMA also published a clause to exclude provision of insurance to vessels engaged in illegal, unreported and unregulated fishing,19 a practice which is seriously detrimental to marine environments. Lastly, insurance is crucial in de-risking new projects to support the energy transition, such as renewable energy production facilities and carbon removal projects, with specialist insurers such as carbon market insurer Kita focusing on this work.20 New research shows that over half of the $19 trillion committed to financing the climate transition to 2030 will require additional insurance coverage.21

Insurers are key institutional investors

Insurers invest the funds (premiums) they receive through the sale of policies to protect their value against inflation. In 2021, the total assets of insurance companies worldwide amounted to approximately $40 trillion.22 Investment is a vital aspect of insurers’ activities, as well as a crucial means to support the transition to net

1 Warm May and spring for the UK - Met Office, 3 June 2024

zero; some estimate that spending on physical assets alone would need to amount to around $9 billion per year to achieve net zero by 2050.23

Insurers can play a key role through impact investment and stewardship, for instance, by implementing the UN’s Principles for Responsible Investment (PRI).24 Many PRI signatories are insurance companies, and re/insurers are considering portfolio strategies that increasingly integrate climate change considerations, including investing in green, resilient, transition and catastrophe bonds.25

Many insurers are part of a growing network of alliances (such as Climate Action 100+ and the Net-Zero Asset Manager Alliance) for investing at scale in resilient low-carbon business models.26

Investment is also becoming more transparent, with climate risk assessment and related disclosures gaining momentum among financial services regulators and standard setting bodies such as the International Association of Insurance Supervisors (IAIS), the Sustainable Insurance Forum (SIF), the Network for Greening the Financial System (NGFS), the European Insurance and Occupational Pension Authorities (EIOPA) and the Prudential Regulation Authority (PRA) at the BoE.

The role of lawyers in climate and insurance Lawyers have an important role to play in this space, either within, or working with the insurance industry, by:

• Developing and advising on contractual wording, including through possible cooperation with external organisations like The Chancery Lane Project;

• Supporting insurers’ claims processes and working with insurers and policyholders in the delivery and use of new solutions;

• Advising on liability risks; and

• Providing thought leadership and training.

Bringing together legal and risk expertise will be essential in addressing climate change and its effects, building resilience and improving the sustainability of communities and businesses; recognising that taking these considerations into account is not only a moral duty, but a business imperative. 

Lucia Williams (Senior Associate, Clyde & Co)

2 S Younger, NASA Analysis Confirms a Year of Monthly Temperature Records - NASA, 11 June 2024

3 G Swaby, C Thangata, K Zoysa What Climate-vulnerable Countries Need on the Road to COP29 | World Resources Institute (wri.org) 16 May 2024

4 C McNally, Countdown to COP29: Negotiators and scientists meet to raise global ambition | Imperial News | Imperial College London 2 July 2024

5 F Arnold-Dwyer, Insurance as the great enabler (Dr Franziska Arnold Dwyer) - FOIL Newsstand - Powered by Lexology, 10 April 2024. See also: F Arnold-Dwyer, Insurance Climate Change and The Law, 2024

6 Global insurance industry - statistics & facts | Statista

7 Why insurance companies are pulling out of California and Florida, and how to fix some of the underlying problems (theconversation.com)

8 The uninsurable world: how the insurance industry fell behind on climate change (ft.com), 2 June 2024

9 See: Global trends in climate change litigation: 2024 snapshot - Grantham Research Institute on climate change and the environment (lse.ac.uk), 27 June 2024

10 Insurance as a force for good (With Rowan Douglas) | RPC, 25 April 2024

11 About | Insurance Development Forum (theidf.org)

12 Insurance and the Sustainable Development Goals | Access to Insurance Initiative (a2ii.org)

13 Mission, Vision, History - Insurance Development Forum (insdevforum.org)

14 See: PRESS RELEASE: COP26: IDF and V20 Announce Partnership in Risk Understanding to Build Global Resilience to Climate Risk; IDF Announces other Multi-Partner Resilience Actions - Insurance Development Forum (insdevforum.org); GRMA - Homepage

15 Allianz develops parametric solution to support Colombian farmers battling climate change - Reinsurance News

16 Insurance programme helps in tackling heatwave conditions (pirainc.com)

17 How insurance is protecting the world’s second biggest coral reef | Swiss Re, 16 September 2021

18 LMA21-041-DP (lmalloyds.com)

19 Marine Insurers Prevented From Doing Business With Vessels Fishing Illegally (tm-tracking.org)

20 Kita

21 Insurance Critical to Mobilising Climate Transition Investment (howdengroup.com)

22 Assets of global insurance companies | Statista

23 The net-zero transition: Its cost and benefits | Sustainability | McKinsey & Company

24 What are the Principles for Responsible Investment? | PRI Web Page | PRI (unpri.org)

25 Climate Change Risk Assessment for the Insurance Industry | The Geneva Association, Feb 2021, p. 11

Introduction

Animal Agriculture and Climate Change: how strategic litigation is being used around the globe

Riley Forsan

While the direct impact of mass animal agriculture is undoubtedly clear and needs reform from an animal welfare perspective, there climate impact is a secondary impact of the industry which requires reform. The impact of mass animal agriculture on the climate is considerable; annually more than 92 billion land animals are bred for food globally which accounts for roughly 16.5% of anthropogenic greenhouse gas (“GHG”) emissions, similar in level to the emissions produced by global transportation. By 2030, the livestock sector is projected to account for almost half of the world’s emissions budget for the Paris Agreement’s target of 1.5 degrees Celsius. Improved legislation is essential, but where legislation is either lacking or slow to be reformed, strategic litigation is beginning to step into courtrooms across the globe to address climate concerns.

What is the environmental impact of animal agriculture?

In Europe, food alone is responsible for 30% of total greenhouse gas emissions, with meat production contributing the most impact. Meat production is the single greatest cause of deforestation globally, with almost half of the world’s habitable land being used for farming animals. Mass animal agriculture also generates a significant water footprint with almost 90% of the world’s water being used for the industry. It is estimated that producing a single pound of beef takes about 8,183 litres of water, the equivalent of pouring 39 baths to their brim due to water intensive crops (soya, grain) required to feed cattle.

The use of strategic litigation to tackle the climate crisis

Despite not being as prominent as litigation against the carbon majors, litigation relating to animal agriculture is slowly starting to emerge in court rooms around the globe as advocates seek the guidance of the courts to tackle the urgency of the climate crisis. The causes of action have varied for these cases, demonstrating the strategic nature of litigation being pursued. A sample of the growing body of case law is set out below:

A. Consumer protection and misrepresentation claims

In the case PMT 17372-21, between the Swedish Consumer Ombudsman and Arla Foods, a large dairy producer, the Ombudsman brought a case on the basis that Arla foods was misrepresenting the impact of its products by using a label stating products have a “net-zero climate footprint”. The Swedish Patent and Market Court determined that the statement was misleading and gave the impression that the dairy products did not produce any climate impact at all and would be misinterpreted by an average consumer to mean that the product had no climate impact, or any climate impact had been fully compensated, which was not the case.

In the case of The Vegetarian Society v Danish Crown the claimants argued that Danish Crown, the EU’s largest pork and beef producer, had mislead consumers through its campaign that claimed that its pork was “climate controlled” and “more climate friendly than you would think” which misrepresented the climate footprint of the animal-based products in violation of the Marketing Practices Act s.5. In March 2024, the Danish High Court determined that the use of the term “climate-controlled” was unlawfully misleading to consumers and ordered Danish Crown to remove the campaign.

The Attorney General of the State of New York v JBS USA Food Company and JBS USA Food Company Holdings is another example of a consumer protection claim. The Attorney General for New York is suing JBS entities, the largest producer of beef related products globally, for “sweeping representations to consumers about [JBS’s] commitment to reducing its GHGs”, amongst other claims, in violation of New York’s consumer protection legislation. The Attorney General is seeking a range of remedies including injunctive relief, disgorgement of profits traceable to the violation of consumer protection legislation and cost penalties.

B. Duty of due diligence

France enacted the Droit de Vigilance, Loi 2017-399, which requires companies meeting certain thresholds to publish an annual vigilance plan

detailing and addressing risks that are posed by its supply chain to human rights or the environment. In the first case brought under the law, Envol Vert et al v Casino Guichard Perrachon S.A, a group of non-governmental organisations sued French supermarket chain Casino for failing to adequately uphold its duty of diligence due to the environmental impacts of its beef supply chain. The claimants argue that three slaughterhouses are still supplying a member of Casino’s supply chain with beef from deforested areas or from farms which have been illegally established on indigenous territories. The claimants are seeking injunctive relief with monetary damages in the event of continued delay by Casino to publish a more accurate report.

A similar claim has been threatened in Comissao Pastoral da Terra and Notre Affaire a Tous v BNP Paribas, whereby the claimants allege that BNP Paribas provides financial services without adequate due diligence to large corporations, such as Marfrig, one of the world’s largest beef producers. Suppliers to Marfrig have engaged in severe deforestation of the Amazon and associated illegal zoning of indigenous territories and BNP Paribas continued financing of Marfrig despite its own net-zero commitments and failed to adequately address the impacts of continuing to provide financial services to corporations with environmentally damaging supply chains.

With the introduction of the Corporate Sustainability Due Diligence Directive, which requires certain companies to report on the environmental impacts of their supply chains, it is likely that similar claims will follow which aim tackle the environmental impact of big-ag.

C. Tort

In New Zealand case of Smith v Fonterra, the claimant challenges New Zealand’s seven largest emitters, two of which are animal agriculture organisations: Fonterra Co-Operative Group Limited, the ninth largest dairy producer globally, and its subsidiary Dairy Holdings Limited. Mr Smith’s claims against Dairy Holdings Limited relate only to emissions from animal agriculture. The claim is based on three separate tortious grounds: negligence, public nuisance and a third, novel, duty to “cease materially contributing to damage to: (1) the climate system; (2) dangerous anthropogenic interference with the climate system; and (3) the adverse effects of climate change”. The Supreme Court held that all three grounds could proceed at a substantive hearing. Throughout the judgment, the Supreme Court accepted that animal agriculture is a considerable part of GHG emissions, the first judgment to do so. It remains to be seen whether the case will succeed on its substantive merits.

In a recent letter before action issued to Avara Foods, Freemans of Newent and Cargill PLC, all involved in industrial poultry production in Hereford, claimants allege that they will bring a claim against these entities on the basis of private nuisance, public nuisance and a breach of section 73(6) of the Environmental Protection Act 1990, caused by the unlawful deposit of waste. The claims allege that these entities’ actions have increased the levels of phosphorous pollutants in the locality, in some instances with levels 60% higher than the national average. While not an entirely climate related claim, it is an example of pollutants from big-agriculture being targeted by litigation.

Conclusion

While animal agriculture’s impact on climate change has remained a lesser discussed issue, awareness of is increasing and actors are seeking to hold the animal agriculture sector accountable. As a largely de-legislated sector and one where there is no Paris Agreement aligned transition path, strategic litigation appears to be a useful tool through which to seek positive change. Following the trajectory of strategic climate litigation cases against large fossil fuel emitters, which have received some considerable legal successes, as well as indirect success outside of the courtroom, we should be prepared for the next wave of strategic litigation against big-ag. 

Riley Forson Associate, Litigation and Dispute Resolution Macfarlanes LLP

BEST PRACTICE FOR FUNDING PROFESSIONAL INDEMNIT Y INSUR ANCE

Now that the dust has settled on the Spring PII renewal season, it looks like the new entries to the sector are signalling an end to the ‘hard’ market.

For those firms that are still in the traditional September renewal season, now is the crucial time to start thinking about preparing for the proposal forms. Your PII broker will be much better placed than me to help with this, however, I thought I would take this opportunity to offer some brief tips for paying for the (hopefully lower) premiums!

Many firms will do a great job negotiating a lower premium with their insurers and then pay thousands more than they need to by paying on a monthly basis. The ‘tick box’ option is often tempting, as most Compliance Officers for Legal Practices will want to put the whole arduous process behind them.

However, with lending being unregulated, there is no requirement for the funder to provide a comparable APR. The reality is that the cost of this funding is not dissimilar to a credit card with actual APRs of 20% not a rarity.

By getting independent finance, not only will you obtain a much more favourable interest rate, but more flexible terms allow you to fund over 12 months rather than the standard 10. Deferring the first payment and being able to fund over 18 months if you choose to lock into a longer policy is also a significant benefit. So, if you are looking to spread the cost, getting independent finance is definitely the best way forward.

How do you go about doing this?

Get funds in place early – You don’t have to wait to get your final figure before getting an approval in place. The most common reason we hear for firms not getting independent finance is because they run out of time waiting to hear back from their brokers. Instead, use last year’s figure and add 10%. It won’t harm your application if the figure comes in lower. Credit underwriters like to see firms using conservative figures. An Iceberg loan approval lasts 90 days, meaning you can have the funds approved and ready to go as early as June for 1st October renewal.

Don’t approach too many funders – Try to avoid using finance brokers. They can be useful if your financials aren’t as strong as desired, but most law firms should be able to get finance arranged by their bank or a direct funder. Finance brokers will often approach multiple funders, which results in more searches than necessary potentially downgrading your credit rating and, in turn, creating further difficulties down the road.

Provide clear and accurate information – Most PII loans via Iceberg can be approved via a FastTrack service, requiring one simple application form. Make sure it’s completed accurately and is easy to read. If you do need to provide more financial information, make sure it is correctly formatted and labelled clearly. Even if we aren’t using the Fast Track service you will usually only have to provide your last signed accounts and most recent management figures. You can never provide an underwriter with too much information, so if you provide forecasts then this will hold you in good stead.

If you would like further information on Iceberg’s PII or working capital funding options, then please feel free to call me or one of the team. 

Ethan French Account Manager, Iceberg Group

Climate litigation and diverse causes of action in England and Wales

While there is no universal definition of ‘climate litigation’, the Sabin Centre for Climate Change Law at Columbia Law School uses the narrow definition of cases before judicial and quasi-judicial bodies that involve material issues of climate change science, policy, or law1. The increase in climate litigation has grown exponentially since the Paris Agreement 2015, with more than 2,666 cases filed globally2; this growth has also been replicated in the UK with 139 filed cases3. This trajectory is expected to continue, even if it slows, as climate litigants opt for more strategic claims with greater chances of success.

Public law claims in England

In the earlier cases, the findings of the English Courts were not in favour of the claimants. This was evident in Preston4 where the Respondents issued a decision to allow exploratory wells and associated monitoring to determine the feasibility of the commercial extraction of shale gas in Lancashire. One of the Appellants claimed that the Secretary of State failed to follow Directive 2011/92/EU, requiring Environmental Impact Assessments to analyse the climate related impacts of fracking and that the Secretary of State had failed to require an assessment of greenhouse gas emissions (“GHGs”) arising from the testing phase. The Court of Appeal rejected the appeals and held that the GHG emissions were fully assessed and that the Secretary of State had acted reasonably when determining whether fracking would help transition to a low-carbon future.

Despite the unsuccessful outcomes of early climate related cases, claimants were not deterred, and public law claims shifted from specific challenges to broader policy challenges to achieve wider impact. This can be seen in the judicial review cases from Friends of the Earth in relation to the government’s Net Zero Strategy review5 6. While not all cases have been successful, such as ClientEarth’s application for judicial review of the FCA’s decision to approve a prospectus of Ithaca, an oil and gas exploration company7, there was a successful decision recently where the Supreme Court held that it will be mandatory to take into consideration scope 3 emissions in environmental impact assessments, where there is a direct link between the impact project and the creation of the project8

It is expected that this mixed trajectory of legal success will continue. The next case to be determined will be the claim brought by FOE in July 2024, in which it will bring a further case against the Government for failure to adapt to climate change based on the argument that the current National Adaptation Programme (NAP3)9 is deficient and fails to meet the required obligations.

Private law claims in England

There has also been an increase in private sector cases focussed on “climate accountability”. Various private law mechanisms are being used, to varying levels of legal success, but to arguably high standards of indirect success due to the attention and impact that they are generating beyond the courtroom.

a) Financial disclosures

In May 2024, a claim was filed against Boohoo Group plc on behalf of institutional investors who claim to have suffered loss because of Boohoo’s alleged breaches of s.90 and s.90A of the Financial Services and Markets Act 2000 which enable investors to claim compensations for losses resulting from untrue or misleading statements, a dishonest delay in disclosing information and a failure to disclose information. The case is the first of its kind to be brought in the English court.

b) Competition law opt-out claims

A CPO hearing in September 2024 will take place in relation to a claim issued on behalf of over 20 million waterboard customers in claims totalling £20 million10. The claims before the Competition Appeal Tribunal are the first to focus on the abuse of a dominant position in relation to breaches of environmental laws. The claims focus on the failure of six water companies to adequately and accurately report the number of times that they caused polluting incidents by discharging or spilling raw waste into waterways in breach of legislation. As consumer prices are linked to performance objectives for each of the water companies, the PCR alleges that their failure to accurately report these incidents resulted in avoidance of penalties from OfWat, and increased consumer bills amounting to the abuse of a monopolistic position. As the bar to certification is low, it is likely the claim will proceed to a substantive hearing.

c) Directors’ Duties claims

Under s.172(1)(d) Companies Act 2006 directors have a duty to act in a way that would be most likely to promote the success of the company for the benefit of members while having regard to the impact of the company’s actions on the community and the environment. Although the case of ClientEarth v Shell11 failed to convince the Court that it should be able to proceed with its derivative action claim, there is a view that a similar case would succeed learning from the criticisms given in Justice Trower’s judgment. Lord Carnwarth has written extra-judicially on the topic critiquing the decision12

Despite the lack of success, in a legal opinion commissioned by Pollination counsel determined that nature-related risks are also relevant to directors’ duties under s.172 and s.174 of the Companies Act 2006 and that the decision by Justice Trower in the ClientEarth case should not be read as a general bar to derivative action claims in relation to nature-related risks being brought in the future.

Conclusion

The field of climate litigation is continuing to grow year on year, with more strategic causes of action developing. Cases will continue no matter what the courtroom success rate is as litigants seek to hold governments, companies, and financial institutions accountable for their impacts on the environment and their contribution to the global climate crisis. 

Riley Associate,Forson

Litigation and Dispute Resolution Macfarlanes LLP

Alesha Shah Paralegal, Macfarlanes LLP

THE LAW OF RIGHTS OF LIGHT 2nd Edition

By Jonathan Karas KC

With technical appendices by Point 2

Surveyors

WILDY, SIMMONDS

& HILL PUBLISHING

MOST HELPFUL PRACTICAL ADVICE IN RIGHTS OF LIGHT CASES FOR 2024

An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator

Jonathan Karas KC has established “The Law of Rights of Light” from Wildy, Simmonds and Hill Publishing, as the leading specialist textbook in the field of rights of light and it is used by practitioners, whether barristers, solicitors, or surveyors for both advice and potential litigation.

The new edition has been fully revised and brought up to date to include recent developments in the law such as section 203 of the Housing and Planning Act 2016, Beaumont Business Centres Ltd v Florala Properties Ltd [2020] and Fearn v The Board of Trustees of the Tate Gallery [2023]. It goes without saying that commentaries on the new case law are invaluable for practitioners in this difficult area.

Karas considers how rights can be established, what constitutes an infringement of those rights and what remedies can be provided for the infringement of those rights. The book is useful for both those who are relatively new to this area of land law, and to more experienced lawyers and to unrepresented parties seeking a remedy.

The author sets out how claims may be defended and how rights can be overridden using the mechanism under section 203 of the Housing and Planning Act 2016. By setting the law in its wider context, “The Law of Rights of Light” comprehensively shows that, despite the technicalities which arise, “there are no legal problems with which a competent lawyer cannot grapple”. And that sums up the beauty of this publication and many others in the Wildy handbook series.

1 Sabin Centre For Climate Change Law - Global Climate Change Litigation - Climate Change Litigation (climatecasechart.com)

2 Global Trends in Climate Change Litigation: 2024 Snapshot, Joana Setzer and Catherine Higham, Grantham Research Institute on Climate Change and the Environment, Columbia Law School, Climate Change Laws (2024).

3 Ibid.

4 Preston New Road Action Group (Through Mrs Susan Holliday) v (1) Secretary of State for Communities and Local Government and (2) Cuadrilla Bowland Ltd [2018] EWCA Civ 9

5 R (on the application of Friends of the Earth) v Secretary of State for Business Energy and Industrial Strategy [2022] EWHC 1841

6 (1) Friends of the Earth; (2) ClientEarth; and (3) Good Law Project v Secretary of State for Energy, Security and Net Zero [2024] EWHC 995 (Admin)

7 R (on the application of ClientEarth) v Financial Conduct Authority [2023] EWHC 3301 (Admin)

8 R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and Others [2024] UKSC 20.

9 R (Friends of the Earth Ltd, Mr Kevin Jordan and Mr Doug Paulley) v Secretary of State for Environment, Food and Rural Affairs (challenge to the Third National Adaptation Programme) (pending)

10 Professor Roberts v Severn Trent Water Limited [16037/7/23]; United Utilities Water Limited [1628/7/7/23; Yorkshire Water Services Limited [1629/7/7/23]; Northumbrian Water Limited [1630/7/7/23]; Anglian Water Services Limited [1631/7/7/23]; and Thames Water Utilities Limited [1635/7/7/24]

11 ClientEarth v Shell [2023] EWHC 1897

12 ClientEarth-v-Shell-what-future-for-derivative-claims.pdf (lse.ac.uk)

We were particularly impressed with the advice from the two illustrated technical appendices by Point 2 Surveyors which are, in our view, invaluable, for practitioners when trying to understand the heavier issues in right to light litigation. The first appendix explains how light is measured; and the second appendix sets out how losses are valued. Both appendices also explain the limits of current methodology which we believe will be of great use to the specialist courts who hear these cases.

The new, second edition has been described as “an essential addition to the shelves of lawyers, surveyors and other property professionals”. It is a comment we fully endorse as the book has wide appeal for students and unrepresented parties wishing to gain a better understanding of this serious (and expensive) area of conflict in English Land Law. ■

London Legal Walk Breaks Records, Raises Over £1 Million

The London Legal Support Trust (LLST) is thrilled to announce that the 2024 London Legal Walk has shattered all previous records, successfully raising over £1 million to support free legal advice agencies across London and the South East. This remarkable achievement in our 20th anniversary year underscores the commitment and generosity of the legal community and their dedication to ensuring access to justice for everyone.

The London Legal Walk, held on 18th June 2024, saw an unprecedented turnout with over 18,000 participants – including lawyers, judges, law students, and other legal professionals – walking the 10k route through central London. Their collective efforts have made an incredible impact, ensuring that vital services can continue to support those most in need.

“I am delighted that the London Legal Walk has reached its target of £1m this year. The funds raised will help specialist legal advice agencies continue providing free legal advice to people who cannot afford to pay for it.” Lady Chief Justice, THE RT HON THE BARONESS CARR OF WALTON-ON-THE-HILL

About the London Legal Walk

The London Legal Walk is an annual event organised by the LLST. It raises funds to support a network of free legal advice agencies, which provide essential services to those who are

unable to afford legal representation. The funds raised enable these organisations to continue offering help in various areas, including housing, immigration, debt, employment issues, and more.

About the London Legal Support Trust

The LLST is an independent charity that provides financial and practical support to over 100 free legal advice organisations in London and the South East. Its mission is to ensure that not-forprofit advice agencies can continue to provide access to justice for those who need it most.

For media inquiries or further information about the recordbreaking London Legal Walk, please contact: info@llst.org.uk www.londonlegalsupporttrust.org.uk

Thank you for your support and participation. 

3 ways to boost productivity with an effective legal software platform

In today's fast-paced legal landscape, efficiency and productivity are key to success. The old adage “time is money” has never been truer than in the legal profession. For law firms that are putting powerful technology at the heart of their business, addressing inefficiencies is having a dramatic and positive impact on their bottom line. They are finding that investing in the right practice management software reaps dividends for their practice both in the short and long term.

However, the introduction and implementation of new legal technology is just the beginning. It is also critical that those using the software are made aware of all the powerful functionality available to them that will support their everyday work. This short article highlights three unique and highly undervalued ways that effective legal software can drive law firm efficiency and end-user productivity.

1. Capitalise on an extensive document library

An effective legal software platform provides your firm with a library of up-to-date forms, precedents and further documentation templates to cover all common areas of law, including those specific to the jurisdiction in which you practice. It also enables you to add, modify and automate your own templates. Having enhanced editing capabilities available within your solution standardises document production and ensures consistency, compliance, as well as improve client service and communication within your practice.

The efficient drafting of documentation is pivotal to the practice of law. By merging client and matter information previously inputted into your legal software platform, details can then be automatically included at the point of document creation, saving significant time and improving the accuracy of content.

2. Unlock the power of automation

Innovative document automation via your legal software platform boosts productivity across your firm. Ensuring accuracy and minimising risk, the automation of processes and the collection of information can greatly reduce errors or omissions which could otherwise negatively impact the level of service you offer.

The levels of automation available can vary from platform to platform, but an effective legal software solution will empower legal professionals to repurpose inputted matter information again and again across documents such as forms and precedents that are generated throughout the course of the particular matter. This removes the need to manually enter information each time, simplifying the document creation process, ensuring quality and accuracy of working and limiting duplication of work.

3. Reap the benefits of regular updates

In today's ever evolving legal landscape, the ability to anticipate and promptly respond to changes in the law is not just best practice, it's an absolute necessity. Law firms that fail to stay up to date with legal developments can encounter various challenges and consequences.

An effective legal software platform should be dedicated to ensuring all legal documents, components, rates and calculations embedded within the software are aligned with legislation and appropriate for the area of law in which you practice. You should have confidence that your provider is constantly monitoring all areas of law and updating as necessary.

This automation of updates within the system will speed up your day-to-day work as well as bring peace of mind and assured compliance to your firm.

Whatever your software’s capabilities, ensuring that you are not only financially investing in the right technology, but also are fully aware and optimising its full functionality will boost productivity across your law firm.

For more information, please visit www.leap.co.uk ■

By Gareth Walker CEO, Leap UK

Firms using LEAP make more money

Committed to creating intelligent software customised to meet the needs of legal professionals, LEAP employs a dedicated team of specialist developers who present innovative AI solutions to automate routine tasks, simplify document management, and enhance decision-making, allowing lawyers to do what they do best - practise law.

leap.co.uk/ai